New South Wales Court of Appeal CITATION: SYDNEY FERRIES v MORTON [2010] NSWCA 156 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 17, 18 March 2010 JUDGMENT DATE: 6 July 2010 JUDGMENT OF: Allsop P at 1; Basten JA at 18; Campbell JA at 115 DECISION: Appeal dismissed with costs. CATCHWORDS: ADMINISTRATIVE LAW – procedural fairness – duty to give notice – Transport Administration (Staff) Regulation 2000 (NSW), cl 32. - ADMINISTRATIVE LAW – procedural fairness – obligation to give reasons - content of the obligation dependent upon nature of the power and circumstances in which the power is exercised – no general law assumption that there is an obligation for an administrative decision-maker to give reasons. - ADMINISTRATIVE LAW – estoppel – no function of Court exercising powers of judicial review to make findings of fact as to the merits of the claim – a statement of facts in a judgment in judicial review proceedings does no more than identify the background - Supreme Court Act 1970 (NSW), s 69 - ADMINISTRATIVE LAW – Wednesbury unreasonableness – principle applicable to discretionary decision-making – findings of fact open to a Tribunal not to be disturbed for unreasonableness Acts Interpretation Act 1901 (Cth), s 25D Public Sector Employment and Management Act 2002 (NSW), Pt 2.7 Supreme Court Act 1970 (NSW), ss 69, 75A LEGISLATION CITED: Transport Administration (Staff) Regulation 2000 (NSW), cll 29, 32, 33, 34; Pt 3, Div 3 Transport Administration Act 1988 (NSW), ss 60, 62 Transport Appeal Boards Act 1980 (NSW), ss 5, 23; Sch 1 Uniform Civil Procedure Rules 2005 (NSW), r 6.12A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328 CATEGORY: Principal judgment Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 Calvin v Carr [1980] AC 574 Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 McVicar v Commissioner for Railways (NSW) [1951] HCA 50; 83 CLR 521 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; 125 FCR 433 Morton v Sydney Ferries Corporation [2007] NSWSC 1454; 168 IR 403 CASES CITED: Public Service Board v Osmond [1986] HCA 7; 159 CLR 656 R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 Reg v Immigration Appeals Tribunal; Ex parte Khan [1983] QB 790 Smith v New South Wales Bar Association (1992) 176 CLR 256 Taylor v Public Service Board [1975] 2 NSWLR 278 Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106 TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, Law Book Co 2009) at pp 259-261 Sydney Ferries (Appellant) PARTIES: Stephen James Morton (First Respondent) Transport Appeal Board (Second Respondent) FILE NUMBER(S): CA 2009/298457 A R Moses SC/Y Shariff (Appellant) COUNSEL: D Cowan SC/D D Knoll (First Respondent) Submitting appearance (Second Respondent) Sparke Helmore (Appellant) SOLICITORS: Diamond Conway (First Respondent) Crown Solicitor's Office (Second Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 30098/08 LOWER COURT JUDICIAL OFFICER: Rothman J LOWER COURT DATE OF DECISION: 4 August 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Morton v Sydney Ferries Corporation [2009] NSWSC 341 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298457 ALLSOP P BASTEN JA CAMPBELL JA 6 July 2010 SYDNEY FERRIES v Stephen James MORTON Headnote On 22 April 2004, while working on one of the appellant's ferries, an altercation occurred between the Master, Mr Stephen Morton, and an engineer, Mr Tyson Best. On 16 June 2004 following an investigation by his employer, Mr Morton, the respondent, was dismissed. Mr Morton appealed to a Transport Appeals Board from the decision to terminate his employment. The Board carried out a review, but on 11 November 2005 upheld the decision. On 20 October 2006 the respondent sought judicial review of the Board's decision and the Board's decision was set aside by Berman AJ in a judgment delivered on 12 December 2007: Morton v Sydney Ferries Corporation [2007] NSWSC 1454; 168 IR 403 ("the first review proceedings"). In June 2008 the Board conducted a further hearing and, on 25 June 2008, gave a second decision, again upholding the termination of the respondent's employment. On 14 August 2008 the respondent commenced proceedings seeking to review the second decision of the Board. Rothman J handed down judgment on 4 August 2009, setting aside the second decision of the Board: Morton v Sydney Ferries Corporation [2009] NSWSC 341 ("the second review proceedings"). The matter now before this Court is an appeal from the judgment and orders of Rothman J, reviewing the second decision of the Board. The issues for determination on appeal were: (i) whether the primary judge exceeded his powers on a judicial review application; (ii) whether the reasons given by the Board were inadequate; (iii) whether the Board failed to act in compliance with the first review proceedings; (iv) whether the Board failed to make essential findings of fact; (v) whether the decision of the Board was manifestly unreasonable; (vi) whether the respondent was denied procedural fairness. The Court held, dismissing the appeal: In relation to (i) (per curiam) 1. It is no part of the Court's role to determine facts in judicial review proceedings. Facts as stated in such proceedings do no more than provide a background to the ruling: at [23]. 2. There is a distinction between the powers of a court on a rehearing under s 75A and the powers of the court under s 69 of the Supreme Court Act 1970 (NSW). To make findings of fact with respect to matters which fell within the purview and jurisdiction of the Board, would be inconsistent with the limited scope of judicial review: at [72]. In this case, for any such error to be material, it needed to fall within one of the specific complaints. Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; Supreme Court Act 1970 (NSW), ss 69, 75A cited. In relation to (ii) (per curiam) 3. There is no general law assumption that there is any obligation for an administrative decision-maker to give reasons. The extent that administrative decision-makers are subject to an obligation to give reasons, the content of the obligation may vary depending on the nature of the power and the circumstances in which it is exercised. Absent any statutory identification of the content of the obligation, there is no basis for implying a larger content than that expressed in Reg v Immigration Appeals Tribunal; Ex parte Khan [1983] QB 790 in the present case: at [4] and [84]. Public Service Board v Osmond [1986] HCA 7; 159 CLR 656; Taylor v Public Service Board [1975] 2 NSWLR 278;, applied. Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 distinguished. Acts Interpretation Act 1901 (Cth), s 25D cited. 4. The appellant argued both that reasons were required and that the reasons given were not inadequate. Assuming that a decision of the Board not accompanied by reasons would be invalid, the reasons given by the Board in the present case were sufficient to comply with the content of the obligation: at [4] and [85]. In relation to (iii) (per curiam) 5. The concept of estoppel has little role in relation to a rehearing following a successful judicial review application, because the Court will not make findings of fact relevant to the merits of the matter before the Board. If issue estoppel did form part of the reason for setting aside the second decision of the Board (which is unclear), the ground of appeal challenging it should be upheld: at [3], [54] and [86]. That conclusion does not lead to the appeal being upheld. In relation to (iv) (per curiam) 6. The STA and Sydney Ferries are government services and the codification in statute of disciplinary procedures and powers for employing and dismissing government service staff reflects a curtailment of common law powers of government to employ staff at pleasure and to dismiss without cause: at [91]. McVicar v Commissioner for Railways (NSW) [1951] HCA 50; 83 CLR 521; Public Service Board v Osmond [1986] HCA 7; 159 CLR 656; Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44, cited. 7. The Board was entitled to rely upon what was described in the charge as "assault" and "harassment", according to the ordinary meaning of those words, without resolving legal minutiae of who was the aggressor in the altercation and whether the respondent acted in justifiable self-defence: at [95]. 8. That the respondent did not know whether Mr Best, the engineer was, "in a fit state to carry out his duties" following the altercation which was of concern to the Board. The Board treated the respondent as being the person responsible for creating the situation when, as the master of the vessel, he was obliged to act with a degree of detachment and not in a manner which might provoke an already charged situation. That reasoning was open to the Board, on the basis of the charge as particularised before it: at [95]. In relation to (v) (per curiam) 9. "Wednesbury unreasonableness" is directed to the exercise of a discretionary power, not to fact-finding. The respondent's complaint that the Board did not make the findings which were necessary for it to be able to uphold the termination of the respondent's employment being rejected, the contention of unreasonableness must also be rejected: at [96]. Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; cited. In relation to (vi) (per Allsop P, Campbell JA agreeing) 10. The Board took the view that the respondent had behaved "recklessly" in following engineer to the engine room and had caused the ferry to leave the wharf without being aware whether or not he had an engineer fit to carry out his duties: at [8]. 11. The respondent was not put on notice by the charge that these matters were in issue: at [9]. The failure to give him notice, before the hearing, of those aspects of his misconduct as to which adverse findings might be made, constituted procedural unfairness, requiring that the decision be set aside: at [12] and [115]. 12. The Board went beyond the notice, failing to specify recklessness. This conduct constituted a different body of assertions than those contained in the notice. Cross-examination beyond the charge previously given was unlikely to be a satisfactory mechanism for providing the respondent a reasonable opportunity to meet a different case: [13]. 13. The existence and conduct of a full appeal by Board hearing did not cure an earlier procedural defect. The Board failed to afford procedural fairness: [15]. Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106; Calvin v Carr [1980] AC 574, referred to. (per Basten JA dissenting) 14. The primary judge held the notice of the charges failed to specify recklessness or inappropriateness as grounds of misconduct. The complaint in relation to inappropriateness should not have been upheld as the conduct was particularised. The charge in relation to recklessness, involved two limbs that as master (i) the respondent had a responsibility for the safety and well-being of his crew; and (ii) the respondent had a responsibility for the safe running of the vessel. Whether the respondent's conduct could properly be described as having that character (being reckless) was a matter of evaluative judgment, as was the respondent's responsibility for the state of affairs, but there was no doubt as to the allegations themselves: at [101], [106]-[108]. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/298457 ALLSOP P BASTEN JA CAMPBELL JA 6 July 2010 SYDNEY FERRIES v Stephen James MORTON Judgment 1 ALLSOP P: I have read the reasons to be published of Basten JA. Though I agree with most of his Honour's reasons, I disagree with one important aspect of his Honour's approach – that concerning procedural fairness. That difference leads to a different conclusion as to the outcome of the appeal. In my view, there was a denial of procedural fairness by the Transport Appeal Board ("the Board"). For that reason the orders of the primary judge should not be disturbed. 2 The comprehensive reasons of Basten JA make it unnecessary for me to deal with the background to the dispute or the statutory framework; they permit me to express myself shortly. Subject to what follows, I agree with the reasons of Basten JA. 3 The possible application of any doctrine of issue estoppel (or any cognate notion) in respect of a decision of a court exercising judicial review functions might depend on many factors, not the least of which is the relevant statutory structure and the nature of the issue said to vitiate the subject decision. It may be that a conclusion by a court that, on a body of material, a power could not reasonably be exercised by a defined decision-maker, could prevent that decision-maker from exercising the power on precisely the same material. It would be important to understand the statutory or other legal duties upon the decision-maker and the full legal context of the further decision. Where, however, as here, the controversy is returned to the tribunal and oral evidence is given and questions of credit arise, there is no basis to conclude that there could be any estoppel of any character. 4 As to any obligation to give reasons, I would leave to an appropriate occasion, should it arise, the question whether a tribunal of the character of the Board was obliged to give reasons. I agree with Basten JA that there may be a tension between Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 and Public Service Board of NSW v Osmond [1986] HCA 7; 159 CLR 656. Implicit in this reservation of the question as to the duty to give reasons is the source or sources of that obligation. The extent to which the principles of procedural fairness play a role in that analysis may depend on, amongst other things, the statutory context: see for example Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; 125 FCR 433 at 456-457 [90]-[93]; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212. 5 My disagreement with Basten JA on procedural fairness does not rest on any matter of principle. I take a different view as to the meaning and significance of the letter of 12 May 2004 that was the charge and the meaning and content of the reasons of the Tribunal, in particular [118(v)]. 6 Basten JA has set out the terms of the letter. When read as a whole, it conveys the clear meaning that the conduct to which the charge related was the intimidation and physical assault of Mr Best. The letter is express in its recognition that it was a "criminal assault". I agree that a letter of this kind should not be over-analysed and infused with unnecessary legalism. Nevertheless, it was reasonable for Mr Morton to understand that he was being accused of criminal conduct in this disciplinary context. To such an allegation, questions of self-defence and provocation could be very relevant. 7 I agree that Mr Morton was apprised of the issue of the appropriateness of his conduct by reference to professional standards of behaviour and that the conduct might have affected the safe running of the vessel and the safety and well-being of the crew. Nevertheless, a reader of the letter would have understood those matters to have been in issue because of the asserted harassment, intimidation and assault, said to amount to a criminal assault of Mr Best by Mr Morton. 8 What the Board did, in particular at [118] of its reasons, was to go beyond this charge. It took the view that the decision to dismiss Mr Morton should not be overturned because of the following: (a) Mr Morton had behaved recklessly in following Mr Best to the engine room. He should never have put himself in the position he did so as to allow the incident to occur. It was Mr Morton putting himself in this position and behaving recklessly in that regard that was inappropriate behaviour. (b) Mr Morton caused the ferry to leave the wharf without being aware whether or not he had an engineer fit to carry out his duties. In doing so he acted recklessly. 9 Whilst these were factual matters that were clearly related to the charge of assault and harassment, they were not the gravamen of the charge. Rather, they constituted a quite different body of assertions than those contained in the letter of 12 May 2004. That is not to take a fine or pedantic reading of the letter, or to place emphasis on the presence or absence of any particular word, such as "reckless". Rather, it is to give the letter of 12 May 2004 and the reasons of the Board a fair and commonsense reading. 10 Whether or not Mr Morton assaulted Mr Best in a criminal sense would be difficult to resolve without carefully weighing the competing evidence of Mr Best and Mr Morton. On the other hand, the approach of the Board at [118(ii)-(v)] was really one that could be based on a broad acceptance of what Mr Morton said (even though he was disbelieved: [118(i)]). 11 It is not an answer to say that the greater (the assault charge) necessarily included the lesser (the inappropriate conduct of putting himself in the position where the altercation could occur and leaving the wharf in the circumstances he did). This broader (in one sense, lesser) approach based on an assessment of the professionalism (or not) of his conduct (implicitly even if he did not criminally assault Mr Best) was not the subject of the charge. 12 Regulation 32 of the Transport Administration (Staff) Regulation 2000 refers to "disciplinary proceedings". As Basten JA says, it is not clear whether the Board hearing is part of such proceedings. I would tend to the view that it is. In any event, procedural fairness required that, at some point, Mr Morton be given adequate notice of the matter with which he was charged, or of the matter that would be relied upon against him before the Board, or of a finding that was contemplated to be made against him by the Board. 13 The nature and quality of any such notice was referable to the question of how the matters notified could be met, and simple fairness. Whilst one should be careful about generalising more than that, it can also be said that cross-examination (including as to credit) beyond the charge previously given under reg 32 was unlikely to be a satisfactory mechanism for providing a reasonable opportunity to meet a different case. It was not adequate here. I do not propose to examine the transcript minutely in support of that conclusion. It is sufficient to say that if a case was to be put, or findings were to be made, that, irrespective of any assault or harassment, the conduct of Mr Morton, even accepting generally his evidence, was sufficient to lead to the conclusions of the character that I have set out at [8] above and that the decision to dismiss him would not be interfered with on that basis, he should have been told this with some degree of clarity and formality in order that he could deal with the issue. The stern (though entirely fair) cross-examination (including on his credit) when he was being accused of the commission of a criminal offence was inadequate to discharge that obligation to proceed fairly. 14 It is most regrettable that there be yet another hearing. I should not be understood as commenting critically on the conclusions of the Board. One might well understand why the Board came to the views it did in [118 (ii)-(v)]. Mr Morton, however, was entitled to be put on notice that this broader, more subtle and, in some respects, more compelling, case was to be put, or might be the subject of a finding, beyond guessing from the nature and terms of his cross-examination, which, apart from anything else, was clearly directed (to some effect) to credit. 15 Reference was made by the appellant in submissions to authorities concerned with the curing of defective decision-making by the existence and conduct of a full appeal: eg Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106, Calvin v Carr [1980] AC 574 and many other cases dealing with that topic. These references were inapt. The Board hearing did not cure an earlier procedural defect. Rather, the Board failed to afford procedural fairness. 16 In my view, Mr Morton was denied procedural fairness. 17 I would dismiss the appeal with costs. 18 BASTEN JA: On 22 April 2004, while the "Lady Northcott" was embarking passengers at the Taronga Zoo wharf, an altercation occurred between the Master, Mr Stephen Morton, and an engineer, Mr Tyson Best. On 16 June 2004, following an investigation by his employer (the appellant, then a division of the State Transit Authority of New South Wales, but now an independent statutory corporation), Mr Morton was dismissed. Mr Morton (the respondent), appealed to a Transport Appeals Board ("the Board") from the decision to terminate his employment. The Board carried out a review, but on 11 November 2005 upheld the decision. 19 On 20 October 2006 the respondent sought judicial review of the Board's first decision in the Common Law Division. That review took six days, the decision of the Board being set aside by Berman AJ in a judgment delivered on 12 December 2007: Morton v Sydney Ferries Corporation [2007] NSWSC 1454; 168 IR 403 ("the first review proceedings"). There being no appeal from the judgment in the first review proceedings, the reasoning became part of the background to the second hearing by the Board and formed part of the challenge to the Board's second decision. 20 In June 2008 the Board conducted a further hearing and, on 25 June 2008, gave a second decision, again upholding the termination of the respondent's employment. 21 On 14 August 2008 the respondent commenced proceedings in the Common Law Division seeking to review the second decision of the Board. That proceeding was heard by Rothman J in March 2009, his Honour handing down judgment on 4 August 2009, setting aside the second decision of the Board: Morton v Sydney Ferries Corporation [2009] NSWSC 341 ("the second review proceedings"). The matter now before this Court is an appeal from the judgment and orders of Rothman J, reviewing the second decision of the Board. 22 The appellant's criticisms of his Honour's reasons are justified; accordingly, the appeal should be allowed. Factual background (a) general principles 23 It is desirable to explain the task being undertaken in stating the 'factual background'. Proceedings by way of judicial review arise in a specific factual context. However, generally speaking, it will be no part of the Court's role to determine the underlying facts. Where possible, a statement should be limited to the facts as found by the Tribunal itself. Where one or more of the findings is challenged, that should be noted. Nevertheless, it is often convenient for the court to adopt its own language in setting out the facts and sometimes to go beyond the findings made by the Tribunal. Where that is merely to set out background circumstances or facts which are not in contention, no basis for misunderstanding should arise. In any event, the facts as stated by the court do no more than provide background to its own rulings: if the matter goes back to the Tribunal for reconsideration, the Tribunal will be free to disregard the statement of facts in the review judgment, just as a jury is directed by the trial judge to disregard his or her description of facts if they do not accord with the views of members of the jury. 24 In some circumstances the Court may be required to consider whether a particular finding was "not open" to the Tribunal, because there was no evidence or other material before the Tribunal to support it: see Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, Law Book Co 2009) at pp 259-261. (It should not be assumed that all "findings", at whatever level of specificity, are open to review on that ground.) Even in those circumstances, the Court does not itself find a particular fact, nor does its decision necessarily preclude the Tribunal on remitter from finding the impugned fact, not least because the evidence before the Tribunal may be different at the later hearing. 25 It is said, on occasion, that fact-finding by a Tribunal can be the subject of judicial review where the particular findings were "Wednesbury unreasonable". Such a claim is made in the present case. This language is, however, generally inapt. Properly understood, the ground of review described as "Wednesbury unreasonableness" is directed not to fact-finding, but to the exercise of a discretionary power: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [122]–[127] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [67] (McHugh and Gummow JJ). 26 These remarks apply to what follows: they also apply to aspects of the judgments below in both the first and second review proceedings, which at times used language which might be thought to indicate "findings" in relation to facts. (b) the incident the subject of the charge 27 The altercation which led to the decision to dismiss the respondent commenced when Mr Best entered the wheelhouse of the Lady Northcott and, with the assent of the respondent, connected and sought to test a new radio. Apparently for the purpose of testing, he turned the volume to full and, when requested to turn it down, became angry. When the respondent moved to turn the volume down himself, Mr Best's anger increased. He left the wheelhouse abruptly and went to the mess room. Having attended to the berthing of the ferry at Taronga Zoo wharf, the respondent went to the mess to seek an apology. There was a confrontation between the two men, the circumstances of which were in dispute. Each accused the other of being aggressive, but the respondent accepted that he had pushed Mr Best backwards with both hands with considerable force in the direction of a microwave oven. 28 The respondent then left the mess without observing what happened to Mr Best. Mr Best radioed the control room of Sydney Ferries (at Circular Quay) and reported that he had been assaulted by the Master and wanted to be examined by a doctor. He then returned to the engine room and locked the controls, so that they could not be operated from the wheelhouse. Mr Best returned to the deck, just as the ferry was leaving its moorings, and jumped from the ferry to the wharf and walked up the hill from the wharf away from the ferry. 29 The control room then radioed the ferry in the following terms: "Steve [Morton] when you get to the Quay[,] the night spare master and engineer will join that vessel. Yourself and Tyson [Best] come ashore and possibly come round [to] the office." 30 At that stage the respondent, not having seen Mr Best leave the ferry, prepared for the scheduled trip to Circular Quay. He engaged the engines at "dead slow ahead" but, the controls having been locked, was unable to adjust the speed to "full ahead". He was then informed by a deckhand that Mr Best had left the ferry. The respondent left the deckhand in the wheelhouse and went down to the engine room to unlock the controls. He then returned to the wheelhouse and, having no engineer on board, took the ferry back to Taronga Zoo wharf and informed Sydney Ferries' control room that he had no engineer on board and had returned to the wharf. 31 After an initial investigation, the Acting Operations Manager of Sydney Ferries wrote to the respondent (by letter dated 12 May 2004) setting out what have, for subsequent purposes, been treated as particulars of the disciplinary complaint (or "charge") brought against the respondent which resulted in the termination of his employment. The letter itself constituted an opportunity to show cause by providing an explanation as to the matters identified in the charge. The charge came in three parts. The first identified the legal standards and obligations which were said to have been contravened. These were: "1 The following Sections of the Code of Conduct (a) Section No 4 – Accountability. (b) Section No 5 – Appropriate behaviour including 5.1, 5.1.5, and 5.1.10. (c) Section No 19 – Compliance 2 State Transit Harassment Policy 3 A general breach of the contract of employment." 32 The second part provided details of the conduct complained of. It was in the following terms: "At approximately 4.15 pm on 22 April 2004 whilst rostered on duty as Master of the 'Lady Northcott' you threatened, intimidated and physically assaulted Engineer Tyson Best in the mess room of the 'Lady Northcott'. As a result of your harassment and assault, Engineer Tyson Best was unable to continue in the workplace and abandoned his post on the 'Lady Northcott'." 33 Importantly, the conduct identified was limited to that which occurred in the mess room. In this passage the consequence of the conduct was identified in terms of its immediate effect on Mr Best; there was no reference to events which occurred after the altercation in the mess room. 34 The third part of the charge set out details of the particular obligations which were said to have been contravened and how the conduct was relied upon. The request concluded, consistently with the limited conduct identified above, with the following request: "You are asked to respond to the alleged breaches by further explaining the events and in particular giving full details of why you went to the Engineer's Mess and the events that happened there." 35 For completeness, and to make sense of the standards identified as having been breached, it is desirable to set out the lengthier third part of the charge, which was as follows: "1. Section No 4 of the State Transit Authority Code of Conduct states :- 'All employees must understand their duties and responsibilities and ensure they perform their duties and carry out their responsibilities to the required competency level of their positions' As Master of the 'Lady Northcott' you had a responsibility for the safe running of the vessel and a responsibility for the safety and well being of the crew on the vessel. By harassing and physically assaulting Tyson Best you have endangered the safe running of the vessel and failed to ensure the safety and well being of the crew and therefore have failed to perform your duties and carry out your responsibilities to the required competency level of your position as Master. 2. Section No 5.1 of the State Transit Authority Code of Conduct in part states :- 'In the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, all employees must maintain an appropriate professional standard of behaviour. This means you must: '5.1.5 show respect and consideration to all other State Transit employees, be polite and helpful to your co-workers; co-operate as part of a team; '5.1.10 never harass other employees or customers on any grounds; report any harassment you witness to your supervisor or manager.' Your harassment and physical assault of Engineer Tyson Best was not in the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, and through your actions you have failed to show respect and consideration to another State Transit employee, have failed to be polite to a co-worker, harassed another employee and failed to maintain an appropriate professional standard of behaviour. 3. Section No 19 of the State Transit Authority Code of conduct states :- 'As a State Transit employee, you are required to perform all the duties of your position promptly and efficiently, in accordance with relevant legislation and regulations, relevant awards and agreements, State Transit policies and lawful and reasonable instructions from your supervisor or manager.' The State Transit Harassment Policy in part states :- 'This means providing a work environment free of intimidation, threat and humiliation. It is the responsibility of every employee to ensure that they do not behave in a manner which another employee or member of the public could find offensive, intimidating, or humiliating. Managers and supervisors have a legal obligation to prevent harassment from occurring in the workplace….' Through your actions of threatening, intimidating, and physically assaulting Tyson Best you have failed as an employee to comply with the Harassment Policy and as supervisor you have failed to fulfil your legal obligation to prevent harassment in the workplace.' 4. Contract of Employment Your criminal assault of Engineer Tyson Best is regarded as a breach of the general obligations under your contract of employment to act faithfully, diligently and in the best interests of State Transit." 36 There is a degree of overlap between the standards said to have been breached, and the manner in which each was breached. The identification of the relevant breaches all relate back to the conduct which occurred in the mess room, but the consequences extend to cover the terms of the standards said to be breached. Thus the first particular refers to endangering the safe running of the vessel and failing to ensure the safety and well-being of the crew. 37 Following the investigation, the Acting Chief Executive Officer of Sydney Ferries wrote to the respondent on 16 June 2004, in the following terms: "The information available from the disciplinary investigation has found that you have breached the STA code of conduct, STA harassment policy and your contract of employment. The harassment and physical assault of Engineer Tyson Best is regarded as serious and wilful misconduct and therefore it has been decided to terminate your services. A copy of the Notice of Punishment is attached." 38 The attached notice of punishment identified the subject-matter of the conduct in the same manner as the charge: "On 22/04/04 while Master of the Lady Northcott ferry, Mr Morton harassed and physically assaulted Engineer Tyson Best. Punishment: Mr Morton's services be terminated on the grounds of serious and wilful misconduct." (c) nature of termination decision 39 As was expressly stated in the letter of 12 May 2004, the State Transit Authority ("the STA"), the respondent's then employer, was contemplating "disciplinary action" against the respondent. At that time, the respondent was an "STA officer" for the purposes of the Transport Administration (Staff) Regulation 2000 (NSW) ("the TAS Regulation"). The TAS Regulation dealt with disciplinary proceedings against STA officers in Pt 3, Div 3. The Regulation did not define the scope of the STA's disciplinary powers, nor what it referred to as "disciplinary proceedings", but provided for the "punishments" which might be imposed in such proceedings. The primary provision relevant for present purposes was cl 29, which provided: 29 Punishments in disciplinary proceedings (1) The STA may impose any one or more of the following punishments in disciplinary proceedings against an STA officer: (a) a caution or reprimand, (b) a fine of an amount not exceeding $100, (c) reduction in position, rank or grade and pay, (d) suspension from duty without pay, (e) dismissal. (2) Instead of dismissing an STA officer, the STA may allow the officer to resign. (3) The STA may deduct a fine imposed on an STA officer from the officer's salary. (4) This Division must not be construed as requiring the taking of disciplinary proceedings in order that the STA may dispense with the services of an STA officer or other employee of the STA." 40 Of the other clauses in the Division which provided briefly in relation to the steps to be taken in the course of such proceedings and conferred a right of appeal to a Board, only the following are presently relevant: 32 Procedure in disciplinary proceedings (1) An STA officer who is subject to disciplinary proceedings is entitled to be notified in writing by the STA of the charge and of the particulars of the charge. (2) A formal hearing is not required to be held before the person or body investigating the matter the subject of any such charge, but the STA officer charged may make representations to that person or body. 33 Disciplinary appeals to Transport Appeal Board An STA officer may appeal to a Transport Appeal Board against: (a) a decision of the STA to impose a punishment referred to in clause 29(1)(b)–(e) in disciplinary proceedings against the officer …. 41 It is not in dispute that the decision to terminate the respondent's employment, notified on 16 June 2004, was the exercise of power conferred by cl 29(1)(e), as a punishment in disciplinary proceedings. Any other right of appeal to a Board was excluded: cl 34. The TAS Regulation did not prescribe a time limit within which an appeal should be lodged, although the Board had a form which stated that the notice must be lodged within 21 days after notice in writing of the decision from which an appeal was to be brought. That aspect of the timing is of no consequence, because the respondent filed a notice of appeal with the Board on 18 June 2004. Second decision of the Board 42 The Board was established under the Transport Appeal Boards Act 1980 (NSW) ("the TAB Act"). A Board for a particular appeal is to be constituted by the Chairperson and two other members, one nominated by a relevant statutory authority and another member nominated by a relevant industrial union: s 5(2) and Sch 1. There is no requirement that any member of a Board be a lawyer. 43 On 1 July 2004, the appellant, Sydney Ferries, became an independent State Owned Corporation and no longer part of the STA: Transport Administration Amendment (Sydney Ferries) Act 2003 (NSW). If Mr Morton had been reinstated in his employment, it would have been with the new corporation, but nothing turned on that. 44 The initial hearing before a Board appears to have been delayed, probably because of criminal proceedings brought in a Local Court in relation to the alleged assault on Mr Best. Those proceedings were dismissed by a magistrate in February 2005. In November 2005 the first Board decision was handed down dismissing the appeal. There was a further delay of almost a year before the first review proceedings were brought, judgment in those proceedings being delivered on 12 December 2007. 45 In June 2008 the Board conducted a rehearing of the respondent's appeal. Its decision, delivered on 25 June 2008, was that the appeal be disallowed: see TAB Act, s 23(1). At the commencement of its reasons for decision, the Board identified the "allegation" in the following terms, which reflecting the charge set out above, other than the alleged breach of contract: "On 22/04/04 while Master of the 'Lady Northcott' ferry, Mr Morton harassed and physically assaulted Engineer Tyson Best. And was found to have breached the following codes and policies a) Section 4 of the Code – Accountability; b) Section 5 of the Code – Appropriate behaviour including 5.1, 5.1.5, and 5.1.10; c) Section 19 of the code – Compliance; and d) The Policy." 46 The second part of the Board's reasons set out the background in terms which summarised the uncontroversial circumstances which have been recounted above. The third part of the reasons identified submissions made with respect to the admission of certain evidence, including that of Mr Best, who was not available for cross-examination. 47 The fourth part of the reasons listed the evidence given by the various witnesses called before the Board. In particular, it set out in some detail the evidence given by the respondent. 48 The fifth part of the reasons identified in summary form the final submissions made on behalf of Sydney Ferries and on behalf of the respondent. Each side handed up written submissions together with copies of various cases referred to in the submissions. 49 Finally, the Board set out its findings and decision which should be repeated in full. " Findings 118. Having had an opportunity to review all of the evidence before it the Board finds the following: i. that given the large number of discrepancies in Mr Morton's evidence, past and present (MFI Document 13) the Board finds that Mr Morton is not a witness of truth; ii. that following the incident which occurred in wheelhouse number two, the point at which an enraged engineer Best returned to the machinery control room, is the point at which Mr Morton should have ceased to be involved; iii. that by following engineer Best to the engineers mess room in order to demand an apology, Mr Morton acted recklessly; iv. that during the altercation which took place in the engineers mess Mr Morton by his own admission pushed engineer Best backwards with considerable force towards the microwave oven resulting in engineer Best sustaining a number of injuries to his head, neck and arm. The Board finds that for Mr Morton to put himself in such a position as to allow this incident to occur, is inappropriate behaviour; v. that Mr Morton left Taronga Zoo Wharf as Master of the Lady Northcott unaware of whether or not engineer Best was in a fit state to carry out his duties, in spite of the fact he claims that after pushing engineer Best and seeing him flying backwards, he had no idea what happened to him, again in this regard the Board finds that Mr Morton acted recklessly. Decision 119. The Board makes the following orders: i. it would not be in the public interest to reinstate Mr Morton to his position at the Sydney Ferries Corporation, however given his many years of unblemished service at the Corporation, Mr Morton is to be given seven days from the 27 th June 2008 in which to tender his resignation from the Corporation dated from the date of his dismissal (16 June 2004), which is to be accepted by the Sydney Ferries Corporation; ii. should Mr Morton choose not to resign during this period, the decision of the Chief Executive of the Sydney Ferries Corporation to dismiss him from his employment will stand." The second review proceedings (a) the 'estoppel' finding 50 The primary judge started by setting out briefly the circumstances of the matter before him, though without identifying the nature of the challenge made to the decision of the Board. His Honour noted the decision of Berman AJ in the earlier proceedings, setting aside the first Board decision. He noted that there had been no appeal against the earlier judgment: at [3]. After referring to the fact that Mr Best did not give evidence, but that his statements were admitted, his Honour said at [4]: "Otherwise, the evidence in the subsequent Tribunal proceedings did not substantially differ from the evidence before the Tribunal in the first proceedings and before the Supreme Court in the earlier proceedings." 51 This blanket characterisation of the evidence before the Tribunal may or may not have been one which would have been accepted by the second Tribunal. In fact it was not asked to make that judgment. It was reiterated, however, at [9] in the following terms: "The Tribunal, Sydney Ferries and Mr Morton were bound by the determination of issues of [sic] the Supreme Court in the earlier proceedings. The evidence was the same, or not substantially different, and the mere fact that [counsel for Sydney Ferries] put submissions more cogently or persuasively than his predecessors, does not allow the Tribunal to come to a conclusion different from the Supreme Court on an issue that was before the Supreme Court." 52 The precise issue to which his Honour was referring, as being "before the Supreme Court" on the earlier occasion, was presumably that which allowed Berman AJ to conclude that the Tribunal decision "as to the alleged assault by Mr Morton 'was one which is so devoid of plausible justification that no reasonable tribunal could have reached it'": at [3]. For reasons briefly adverted to above, Berman AJ was not required to determine facts, as opposed to determining whether, on the material before the first Tribunal, its decision was attended by relevant legal error. 53 The suggestion that an administrative decision-maker, to whom a matter has been remitted for further consideration is bound by a conclusion (other than the invalidity of the earlier decision) made by the reviewing court calls for deconstruction. It implies that an administrator must explore the judgment of the reviewing court to determine whether it has made any findings of fact, identify what the evidence was before the court and what was before the earlier decision-maker, analyse that evidence and compare it with the evidence on the rehearing, identify the similarities or differences and then decide whether he or she is bound by a factual finding made by the court. That statement of the proposed process of analysis should be sufficient to demonstrate that the proposal is misconceived. Nor is the proposal given greater plausibility by suggesting that a court reviewing the redetermination should embark upon that exercise if it were not one required of the decision-maker. 54 Concepts of "estoppel" may have a superficial attraction to the legal mind; use of the label, however, without consideration of the process it entails, is apt to mislead. The matter determined in the first review proceedings was the validity of the first decision of the Board. No one seeks to challenge that conclusion: indeed, the conduct of a rehearing was premised on that conclusion. To reach that conclusion, Berman AJ did not make findings of fact: rather, he determined that a particular finding of fact made (or required to be made) by the Board on the first hearing was not open as a matter of law. While, theoretically, it might be possible to identify the factual finding which was not open and the kind of primary material which was absent, immediately a witness is called on the rehearing, whose evidence is relevant to that issue, the exercise becomes unnecessary and inappropriate. 55 Although raised as a potential error on the part of the Board, it will be necessary to return to the question of the role (if any) played by the finding that the Board was "bound" by the finding in the first review proceedings in the determination of the second review proceedings. (b) identifying grounds of review 56 As his Honour noted, Mr Morton challenged the decision by a summons seeking relief in terms which were so general as to be unavailable. For example, it would have been quite inappropriate to make the declaration sought, namely "a declaration of error of law by the Tribunal". The failure to specify any grounds was justified by reference to the absence of rules requiring such specification: noted by his Honour at [23]. That is no longer so: see Uniform Civil Procedure Rules 2005 (NSW), r 6.12A. The suggestion that, prior to the insertion of that rule, counsel would think that particularisation of the grounds was unnecessary might have been thought implausible. 57 At the hearing before the primary judge, Sydney Ferries sought to identify and characterise the grounds relied upon, an exercise accepted and relied upon by his Honour, at [26] and [27]. 58 The first category of grounds addressed by his Honour was described as "alleged failures to make 'essential' findings and constructive failure to exercise jurisdiction": see [27(a)], addressed at [49]-[61]. His Honour's reasoning in this regard turned upon the legal requirement that "it is essential to determine whether a dismissal on the basis found would be lawful": at [58]. (That determination was presumably to be made by the Board in the first instance.) His Honour concluded in that regard: "60 … It is sufficient for present purposes to note that neither the so-called reckless behaviour of approaching a subordinate for the purposes of reprimanding him (or demanding an apology), nor the inappropriate behaviour and/or reckless behaviour described in [118(iv)] and [118(v)] are sufficient grounds for dismissal. None of the conduct described in [118] is repudiatory of the contract of employment, or a breach of an essential term of the contract of employment, or a sufficiently serious breach of an intermediate term of the contract of employment. 61 To the extent that the assault or harassment is relied upon, there is no finding of fact upon which one could base a dismissal and there is no finding of fact, essential to such an issue, as to the existence of self-defence. I reiterate that each of the later aspects was the subject of findings by this Court, in the earlier proceedings." 59 How the general law principles of contract warranting summary dismissal of an employee applied to confine the disciplinary powers, conferred by regulation, was not explored. 60 The second class of grounds identified at [27(b)] concerned "alleged errors in relation to findings on credit". His Honour appears to have been critical in some respects of the findings of the Board in its assessment of the evidence, but concluded briefly that "these grounds are wholly academic": at [63]. It is not necessary to address these matters further as they clearly played no part in his Honour's determination to set aside the second decision. 61 The third class of grounds relied upon before the primary judge were identified by his Honour as involving "denial of natural justice and failures relating to findings of inappropriate and reckless behaviour". In relation to the question of recklessness, his Honour stated: "64 The circumstances of Mr Morton approaching Mr Best have already been discussed. Further, the circumstances in which Mr Morton moved the ferry from the wharf, and returned it, have also been discussed. Neither amounts to recklessness. … 71 I do not consider Mr Morton's conduct as reckless. However, his conduct was a reasonable reaction to a direction that he proceed to Circular Quay at which point there would be an exchange of staff and a conference with his supervisors." 62 These findings were not expressed, nor explained, in terms invoking principles of judicial review. 63 His Honour dealt separately with the question of procedural fairness. He stated that "the disciplinary regime implemented by the statute and regulations expressly requires written notice of the charges and particulars": at [68]. His Honour further noted at [68] that: "Such notices that were given to Mr Morton did not specify recklessness or inappropriateness as a ground for dismissal." 64 His Honour also addressed the question whether the cross-examination of Mr Morton before the Board was sufficient to put Mr Morton on notice as to the allegations to be made and concluded that it did not: at [69]. 65 The fourth class of grounds relied upon alleged "Wednesbury unreasonableness and the error in admitting evidence", dealt with at [72]–[73]. In relation to Wednesbury unreasonableness, his Honour's approach was somewhat ambivalent. He stated at [72]: "In the light of the foregoing, it is unnecessary to determine whether the findings of the Tribunal were vitiated by Wednesbury unreasonableness . Given the errors that have already been found, orders will be made quashing the decision of the Tribunal. As a consequence of those errors, the determination of the Tribunal is vitiated by error and, necessarily, is unreasonable. Without reaching a concluded view, on the material before the Court, it would seem that the finding is not one, which the Tribunal, 'acting with due appreciation of its responsibilities', could have decided to adopt …." 66 If the matter needed to be reconsidered by the Board, it was undesirable to make a statement in that form. The "finding" is not identified, nor is the relevant material before the Court specified. The remarks are apt to give rise to a degree of confusion on a rehearing as to the precise scope of the conclusions available to the Board. For reasons explained above, the Board would need to disregard these remarks. 67 The question of admissibility related to the statements of Mr Best. His Honour noted that the findings made by the Tribunal did not appear to depend upon the statements of Mr Best and "no purpose is served in dealing with an academic point": at [73]. Again, the matter was not left purely on that basis. Early in his judgment, the primary judge had stated, at [4]: "In the first proceedings before the Tribunal, the Engineer, Mr Best, gave evidence and was cross-examined. In the subsequent proceedings Mr Best did not give evidence and Sydney Ferries sought to tender the statements made by Mr Best, thereby denying to Mr Morton the ability to cross-examine him. Over the objection of Mr Morton, the Tribunal admitted the statements of Mr Best as to the occurrences on 22 April 2004." 68 The matter not being one which arises directly for the purpose of determining the appeal, it is not necessary to address the question which the primary judge did not determine, namely whether the Tribunal erred in a way which would justify judicial review, in admitting the earlier evidence of Mr Best. Nevertheless, it should be made clear that, if the statements were to be tendered again, the Board should ignore the pejorative comments relating to such an approach taken by Sydney Ferries, as set out above. Basis for dismissing the appeal 69 In order to determine the grounds upon which the primary judge granted judicial review, it is convenient to set out [74], where his Honour summarised his conclusions: "The Decision of the Tribunal was reached in circumstances where the reasons for the Tribunal's Decision disclose error of law, which error is determinative of the result. As a consequence, orders in the nature of certiorari will issue. The errors include a denial of natural justice (as prescribed by the regulatory scheme) (or a failure to comply with the provisions of the scheme itself), the failure to disclose adequate reasons for the findings made, the finding that grounds existed for dismissal and the failure to consider whether, even on the findings of fact of the Tribunal, there were sufficient grounds for a dismissal." 70 His Honour did not find it necessary to deal with the complaint that the decision of the Tribunal was "vitiated by Wednesbury unreasonableness": at [72]. However, a notice of contention filed on behalf of the respondent sought to uphold the decision below on that ground. Accordingly, on the basis that the appeal would otherwise succeed, it will be necessary to address that ground. Grounds of appeal in this Court 71 The grounds of appeal in this Court demonstrated a degree of uncertainty as to the precise basis upon which the second decision of the Board was set aside. The net of alleged error was cast somewhat wider than was necessary. Nevertheless, the appellant needed to demonstrate that, if there were more than one ground upon which the primary judge relied, errors justifying intervention could be identified in relation to each. (a) review proceedings conducted as a rehearing 72 This complaint was, in substance, that the primary judge conducted the proceedings as if it were an appeal to which s 75A of the Supreme Court Act 1970 (NSW) was applicable. Such an approach would not be consistent with the limited scope of judicial review which required the identification of jurisdictional error or error of law on the face of the record. It may be difficult, and indeed undesirable, to seek a bright line distinction between errors of fact and errors of law in identifying the permissible grounds of judicial review (see McHugh and Gummow JJ in Applicant S20/2002 at [54]). Nevertheless, there is an uncontroversial distinction to be drawn between the powers of a court on a rehearing and the powers of the court exercising jurisdiction under s 69 of the Supreme Court Act. To the extent that the primary judge appears to have made findings of fact with respect to matters which fell squarely within the purview and jurisdiction of the Board, the complaint is justified. Nevertheless, it is important for present purposes to identify findings which were material to his Honour's conclusion. Otherwise, it is sufficient to note that the Board which conducts the rehearing will be entitled to form its own view as to the relevant facts on the material before it. (b) obligation to give reasons 73 Although the relevant ground of appeal (ground 6) was formulated in terms of there being no legal obligation to give reasons, the case as presented in oral argument for the appellant rested on the proposition that reasons were required, but that those given were not inadequate. In other words, the appellant did not seek to maintain the position that there was no obligation to give reasons. That concession needs to be understood against the principle that there is no general law obligation for administrative decision-makers to give reasons: Public Service Board v Osmond [1986] HCA 7; 159 CLR 656. 74 The justification for that concession appears to have been the reasoning of this Court in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372. There the Court accepted that there was an implied statutory obligation imposed on an Appeal Panel reviewing a medical assessment under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327 and 328. Handley JA (with the unqualified agreement of McColl JA) held that the approved medical specialist had an implied duty to give reasons because there was a statutory appeal from his or her certificate to an Appeal Panel: at [24]. The Appeal Panel was held to have an implied duty to give "proper reasons" because its function was to correct error and because there was a power to refer a matter back for further assessment (a power not limited to certificates granted by the Appeal Panel). It is clear from the reasoning that the conclusion was based squarely on the statutory scheme under consideration. (I took a somewhat different approach at [109]-[110].) 75 It is not necessary to discuss the present statutory scheme, the obligation to give some reasons having been conceded. However, the assumption does not overcome the need to consider the content of the obligation. 76 So far as the adequacy of the Board's reasons was dealt with below, it was almost by way of passing comment, his Honour stating at [53]: "It is the function of every tribunal, from which an appeal lies or which is subject to prerogative relief, to issue reasons for decision and to disclose in those reasons the path by which the tribunal has reached its conclusions. The decision of the Tribunal, at [118] and [119], contains a series of assertions, the path to which is unknown or undisclosed." 77 Despite the reasoning of the majority in Vegan, it is doubtful whether such a broad statement of obligation can stand with the authority of Osmond. Whether it was intended that something be inferred from the description of the Board as "the Tribunal" is unclear. More importantly, apart from a degree of uncertainty expressed by his Honour as to whether certain matters were treated as relevant by the Board, he did not in that passage seem to rely upon the inadequacy of the reasons as a basis for setting aside its determination. On the other hand, when his Honour came to state his conclusions at [74] he included, as an error warranting the setting aside of the decision of the Board, "the failure to disclose adequate reasons for the findings made". It is necessary, therefore, to address the correctness of the error identified in this regard. 78 Before assessing the adequacy of the reasons given, it is necessary to understand the basis of the requirement and its scope in the circumstances relating to the Board. The obligation of a court to give reasons for its decisions is neither universal nor, where it operates, uniform in its content. Apart from express statutory direction, to the extent that administrative decision-makers are required to give reasons, the obligation derives from the requirements of procedural fairness. Like other elements of procedural fairness, the content of the obligation may vary depending on the nature of the power and the circumstances in which it is exercised. However, unlike other elements of procedural fairness, there is no general law assumption that there is any obligation for an administrative decision-maker to give reasons. It follows that authorities dealing with an exercise of judicial power provide little assistance. 79 Although the exercise of classifying the nature of the power was one which I adopted in Vegan, distinguishing Osmond at [105]–[109], there are risks in approaching this question by an a priori classification of a power as judicial, quasi-judicial or administrative. This would reflect the language of an earlier age conditioning the availability of certiorari on the existence of a duty to act "judicially": see R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 (Atkin LJ). This approach can deflect attention from the analysis necessary by allowing the appropriate answer to follow, as a matter of apparent logic, from the label. The better course is to consider the specific issue, namely the obligation to give reasons, by reference to the characteristics of the power and the circumstances of its exercise. 80 The existence of a statutory appeal may be a relevant consideration, but no right of appeal exists from a decision of a Board. Of course, most administrative decisions affecting rights (including the present) are subject to judicial review. However, if that were a significant factor in identifying an obligation to give reasons, it would be inconsistent with the general principle that there is no such obligation. Significantly, in Osmond, Gibbs CJ found it unnecessary to decide if judicial review were available (in the face of a privative clause) in order to conclude that there was no obligation to give reasons. 81 It might also be thought that a distinction should be drawn between a refusal to appoint or promote a person in employment, which might be thought less amenable to such an obligation, as compared with a dismissal. However, in Osmond the High Court approved the decision of this Court in Taylor v Public Service Board [1975] 2 NSWLR 278 refusing to set aside a decision of the Board dismissing an officer for breach of discipline, where the Board gave no reasons. 82 None of that is to say that it is other than good administrative practice to give reasons: it does, however, cast real doubt on the correctness of the appellant's concession as a matter of law. 83 It is difficult to assess the content of an obligation without being satisfied as to its sound basis in law. It is sufficient for present purposes to note that, in Reg v Immigration Appeals Tribunal; Ex parte Khan [1983] QB 790 at 794, Lord Lane CJ said in relation to a statutory obligation to give reasons: "The important matter which must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusion." 84 Absent any statutory identification of the content of the obligation (as may be seen in s 25D of the Acts Interpretation Act 1901 (Cth), which is not dissimilar to the obligation stated in Khan) there is no basis for implying a larger content in the present case. That a judge might be expected to make express findings as to primary facts and reason from those to an evaluative judgment is beside the point: the Board is not a court of law. 85 Assuming that a decision of the Board, not accompanied by reasons, would be invalid, the reasons given by the Board in the present case were sufficient to comply with the content of the obligation as indicated above. The primary judge neither identified the basis of the obligation nor its content. His Honour's finding of a contravention should not be accepted. (c) Board bound by determination in first review proceedings 86 As noted above, the idea that the Board was bound by the earlier decision in the Common Law Division either invokes principles of res judicata or of issue estoppel. There is no doubt in relation to the former: the decision of the Court that the first decision of the Board was invalid was binding on the parties. That, however, was not in dispute. In relation to "issue estoppel" enough has been said above to dispose of the ground as a basis for setting aside the decision of the second Tribunal. Whether or not it was in fact relied upon for that purpose is unclear. The possibility of reliance arose from the ambivalent finding expressed by the primary judge at [61], set out at [58] above. Assuming that it did form part of the reason for setting aside the second decision of the Board, the ground of appeal challenging it should be upheld. (d) failure to make essential findings 87 The reasoning of the primary judge appears to have treated the failure to make essential findings as one of two primary bases for setting aside the decision of the Board. It relied upon the proposition that dismissal was unavailable both to the employer and to the Board unless the respondent's conduct was such as to warrant summary dismissal under general law principles. His Honour held that the Board was required to determine whether Mr Morton acted in self-defence or was the aggressor. The fact that there was no finding in this regard suggested that the "assault or harassment" was not relied upon by the Board in reaching its determination. 88 The correctness of this inference depends upon the validity of the underlying proposition that neither Sydney Ferries nor the Board had power to dismiss Mr Morton otherwise than for a sufficiently serious breach of his employment contract, sufficient to justify termination under the general law. The appellant submitted that there was no such express limitation on the discretionary power of the employer and the Board in exercising disciplinary jurisdiction, nor was such a restriction to be implied. This submission should be accepted. 89 The employment of an officer by the STA involved the exercise of a statutory power: Transport Administration Act 1988 (NSW), s 60. The statute also provided for regulations to be made with respect to the employment of staff, "including the conditions of employment and the discipline of any such staff": s 62(1). Such regulations "may provide for appeals by members of staff in connection with their employment, including appeals to a Transport Appeal Board constituted under the Transport Appeal Boards Act 1980": s 62(2)(c). Clauses 29 and 32 of the TAS Regulation (set out at [39] and [40] respectively above) recognise the power of the STA to conduct disciplinary proceedings in relation to an officer, confer powers on the STA to impose "punishments" and, as elements of procedural fairness, require that there be written notification of a charge and particulars thereof, together with an opportunity to make representations in respect of the charge. 90 It may be recognised that this is a skeletal scheme for discipline. In some circumstances such disciplinary procedures may be dealt with in an industrial agreement or by a determination of the relevant statutory authority. Such possibilities are recognised in s 62(2), but it was not suggested that there was any such instrument relevant in the present case. Nor did the more sophisticated scheme for discipline of public service staff employed under the Public Sector Employment and Management Act 2002 (NSW) apply: see Pt 2.7 of that Act. Consequentially, the appeal provisions provided by the Government and Related Employees Appeal Tribunal Act 1980 (NSW) did not apply. Nevertheless, it was clear that, at the relevant time the STA had disciplinary powers available to it. The contrary was not argued. 91 Despite the skeletal form of the disciplinary powers in the present case, it is clear that, as with the railway service discussed in McVicar v Commissioner for Railways (NSW) [1951] HCA 50; 83 CLR 521 at 529, each of the STA and Sydney Ferries is "a government service" and the powers of employing and dismissing staff were intended to reflect those operating in the government service generally. The codification in statute of disciplinary procedures and powers does not reflect an expansion, but rather a curtailment, of the common law powers of government to employ staff at pleasure and, hence, to dismiss without cause: see Osmond 159 CLR at 671 (Wilson J); Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at [6]-[7] (Gleeson CJ) and [42]-[45], [84]-[87] (McHugh, Gummow and Hayne JJ). Furthermore, as noted by Gleeson CJ in Jarratt, the fact that wrongful dismissal may constitute a repudiation of an employment contract does not mean that it is ineffective, though it may give rise to a claim for damages: at [7]. A disciplinary power to dismiss, properly engaged, would prevent the dismissal being unlawful. 92 This appreciation of the context in which the disciplinary powers are conferred, leaves no scope for an implied limitation of the circumstances in which one particular "punishment" may be administered. 93 This conclusion makes it unnecessary for the Board to have determined who was the aggressor in the altercation in the engineer's mess room and also makes it unnecessary to have determined whether Mr Morton acted in justifiable self-defence. The Board was entitled, as it clearly did, to rely upon what was described in the charge as "assault" and "harassment", without resolving such legal niceties. 94 It was contended in this Court on behalf of the respondent that to strike a person in justifiable self-defence did not constitute either an "assault" or "harassment". That submission should be rejected. Although in the final particular of the charge, under the heading "Contract of employment" there is reference to a "criminal assault", that particular of the charge was missing from the allegation as set out at the beginning of the reasons of the Board: see [45] above. In its ordinary meaning, an assault may be an "onset or rush upon anyone with hostile intent; an attack with blows or weapons": Oxford English Dictionary (Online), assault, n 1.(a). It may also mean an "unlawful attack upon the person of another" but it is clear that the ordinary meaning is not so restricted. It was not submitted that the term "harassment" as it appeared in the charge, or at the beginning of the reasons of the Board, was used in a technical legal sense; it would therefore seem unlikely that the term "physically assaulted" was used in a technical legal sense. It seems clear that the Board did not treat it in that way and no error of law is identified in that approach. 95 The gravamen of the charge accepted by the Board in its findings was that the respondent should not have followed Mr Best into the mess room in order to demand an apology and that, having pushed Mr Best with the force that he did, he could have caused injuries, which he did not stay to investigate. Accordingly, the master did not know whether his engineer was "in a fit state to carry out his duties" following the altercation. It was, as the findings indicate, that result of his conduct which was of concern to the Board. It clearly treated the respondent as being the person responsible for creating the situation when, as the master of the vessel, he was obliged to act with a degree of detachment and not in a manner which might provoke an already charged situation. That reasoning was open to the Board, on the basis of the charge as particularised before it, and no error of law was disclosed by a failure to make a finding as to whether or not the respondent acted in self-defence, whether he responded proportionately to the violence offered to him and other questions with legal connotations. (e) manifest unreasonableness 96 None of the foregoing is to deny that the Board was under an implied obligation to act rationally and to eschew arbitrary decision-making. Whether such an obligation adds anything to the duty to exercise a power for the purposes for which it was conferred and to avoid reliance on matters such as hair colour or religion, which are legally irrelevant, may be doubtful. In asserting that the Board's decision was Wednesbury unreasonable, or manifestly unreasonable, the respondent was in substance complaining, as accepted by the primary judge, that the Board did not make the findings which were necessary for it to be able to uphold the termination of the respondent's employment. Once that premise is rejected, the contention must also be rejected. (f) denial of procedural fairness 97 The primary judge expressly held that there had been a denial of procedural fairness by the Board. Somewhat curiously, in the final paragraph, that denial was identified as either non-compliance with the prescriptions of the "regulatory scheme" or as a failure to comply with "the provisions of the scheme itself". (The distinction was not explained.) 98 It seems likely that the references to the "regulatory scheme" and the "provisions of the scheme" were references to the requirements of cl 32 of the TAS Regulation that, in conducting disciplinary proceedings, the STA provide the officer with a charge in writing, appropriately particularised. 99 Whether cl 32 operates in proceedings before the Board is an open question. The term "disciplinary proceedings" is not defined, and arguably includes an appeal before the Board, despite the fact that procedure before the Board is generally governed by the TAB Act. The question need not be resolved, because there is no reason to doubt that the Board is governed by procedural fairness and that one element of procedural fairness in relation to disciplinary proceedings will, in the ordinary course, involve adequate notice of the charge and particulars thereof which the officer must meet. What is less clear is whether it would be fatal to a determination by the Board if the charge were varied, with notice but not in writing. The appellant assumed that that might be possible, as it sought to take this Court through the cross-examination of the respondent, in order to establish that he was on notice of certain matters to be discussed below. 100 There is a further question as to whether, if the respondent were on notice of a particular matter, and the notice was in writing, it might be relevant that the notice did not itself constitute a formal charge. To understand the relevance of this question, it is necessary to identify the particular breaches of procedural fairness relied upon by the primary judge. As has been noted, his Honour dealt with denial of procedural fairness at [64]-[71]. His Honour held that such notices as were given to Mr Morton "did not specify recklessness or inappropriateness as a ground for dismissal": at [68]. His Honour accepted that there was "some cross-examination" of the respondent before the Tribunal "relating to inappropriateness and/or recklessness" but held that "cross-examination did not comply with the regulatory scheme": at [69]. Perhaps more importantly, it did not "put Mr Morton sufficiently on notice as to the allegations to be made or as to the findings made by the Tribunal": at [69]. 101 The complaint with respect to inappropriateness should not have been upheld. The behaviour found to be "inappropriate" at sub-par (iv) of the Board's findings, was Mr Morton's conduct in putting himself in a position which allowed the fracas to occur. There is no doubt that the conduct in the mess room was particularised. Further, the respondent's conduct was said to be in breach of cl 5.1 of the STA Code Of Conduct requiring that employees maintain "an appropriate professional standard of behaviour". The charge expressly stated that Mr Morton "failed to maintain an appropriate professional standard of behaviour". In other words, his behaviour was inappropriate. There is no substance in the suggestion that he was not on notice of such an allegation. 102 The question of recklessness is less clear-cut. The primary judge sought to identify the meaning of "recklessness" by reference to legal authority. However, reckless is an ordinary English word meaning the quality or characteristic of being "heedless of or indifferent to the consequences of one's actions; lacking in prudence or caution; willing or liable to take risks; rash, foolhardy; irresponsible: Oxford English Dictionary (Online), reckless, A1.a. There is no reason to treat the Board as using the word otherwise than in the ordinary meaning. 103 It is true that the charge did not use the term "reckless". On the other hand, it stated that the respondent "had a responsibility for the safe running of the vessel" and further alleged: "By harassing and physically assaulting Tyson Best you have endangered the safe running of the vessel and failed to ensure the safety and well-being of the crew and therefore have failed to perform your duties and carry out your responsibilities to the required competency level of your position as Master." 104 There appears to have been little dispute but that Mr Morton deliberately confronted Mr Best in the mess room. Although the Board recorded his evidence that his push had been "a reflex action", it also recorded his evidence that "he had pushed engineer Best with considerable force in the direction of the microwave": reasons of Board at [54]. 105 It is clear that the conduct of Mr Morton was deliberate in the sense that he was aware of his own conduct and that he had pushed Mr Best hard enough to send him "flying backwards": Board Tcpt, 03/06/08, p 69 (35). Although he denied the suggestion, it was expressly put to him that his "behaviour on that day was disgraceful" and that he "ought not to have conducted [himself] in that manner as a master of the vessel": Tcpt, p 61 (15). 106 The gravamen of the charge had two limbs; one was that as master the respondent had a responsibility for the safety and well-being of his crew, the other being that he had a responsibility for the safe running of the vessel. Whether in that sense the reference to "crew" was a reference to Mr Best's safety and well-being was not made clear. It may have been that the safety and well-being of the crew was an element of the safe running of the vessel. In any event, the charge expressly identified endangering the safe running of the vessel as the consequence of his conduct. Whether the conduct could properly be described as having that consequence was a matter of evaluative judgment, as was the respondent's responsibility for the state of affairs. The notice of punishment issued to the respondent on 16 June 2004 referred to "serious and wilful misconduct": see at [38] above. 107 The respondent was on notice that the reason why the altercation with Mr Best was treated seriously was that it was said to have endangered the safe running of the vessel. He was also on notice that his conduct was said to be a breach of his obligation to prevent harassment in the workplace (because his own actions constituted harassment); that his conduct was "not in the interest of health and safety, efficiency, harmony in the workplace and that it cast doubt on his competency to be a Master". He may have disagreed (as indicated in his evidence) that his conduct should be so characterised, but there was no doubt as to the allegations. He had been told of the original finding of the STA that his misconduct was both serious and "wilful". Had the Board so characterised his conduct, no allegation of procedural unfairness could have been made. The Board concluded that he was heedless of the consequences of his action and its effects on the engineer, who might, as a result, not have been physically or psychologically fit. To characterise his conduct as "reckless" rather than "wilful", bearing a lesser (or at least not a greater) level of culpability involved no breach of procedural fairness. 108 The statement that at the time the ferry disembarked from the wharf, the respondent was "unaware of whether or not Engineer Best was in a fit state to carry out his duties" followed from the respondent's own claim that "after pushing Engineer Best and seeing him flying backwards, he had no idea what happened to him", as identified in particular (v) of the findings and Tcpt, pp 34-37. 109 The primary judge considered that the respondent was prejudiced because notice of the proposed findings might have led to evidence of practice, directions and trainings "on the handling of subordinates", or that such material would at least "have been available": at [69]. However, that element of prejudice would only have arisen if there were some doubt that the charges related to the manner of handling a subordinate: that fact was never in doubt. 110 The primary judge further held that, following a conversation with the control room, Mr Morton was "required, by Sydney Ferries, to proceed from Taronga Zoo Wharf to Circular Quay": at [70]. The legitimacy of such a factual finding, as determined by the Court and not the Board, was not discussed. Its relevance presumably followed from the Board's finding that the respondent was reckless in that he "left Taronga Zoo wharf … unaware whether or not Engineer Best was in a fit state to carry out his duties". 111 However, there are a number of difficulties with this reasoning. First, the factual premise is open to doubt, given the terms of the communication, set out at [29] above. The Board did not find that this was a direction to return to the Quay without an engineer, nor did Mr Morton treat it as such. Immediately he realised that he had no engineer on board, he returned to Taronga Zoo wharf. Secondly, and more importantly for present purposes, the finding which the Board did make was not directed at the respondent's conduct in leaving Taronga Zoo wharf: it was directed to his state of knowledge at the time that he commenced the aborted trip to Circular Quay. 112 Had the Board made a finding that his conduct in leaving the wharf was part of the conduct for which he was to be disciplined, that would have been erroneous, absent proper notice that such a finding was contemplated. That is because, as noted above, the charge restricted itself to Mr Morton's conduct in pursuing Mr Best to the mess room and engaging in an altercation in the mess room. Although read literally, particular (v) is open to such a construction, when read in the context of the other findings, which did relate to the altercation in the mess room, it should be understood as an explanation of the state of mind of Mr Morton at the time the vessel left the wharf and before he realised that the engineer was not on board. In other words, the matter which was of significance to the Board was that he left the mess room unaware of the consequences of his action. Such a finding reflected the complaint in the charge that he had endangered the safety of the vessel. 113 The findings made by the Board at [118] do not all relate to the particular conduct the subject of the charge. Thus, the first finding, that Mr Morton was not a witness of truth should not be understood as a finding of misconduct in itself, but as an explanation of the following findings which were in significant respects inconsistent with his exculpatory evidence. The last finding did not involve misconduct in leaving the wharf, it was merely the stage at which his antecedent misconduct gave rise to the consequence identified in the charge, of endangering the safety of the vessel. Conclusions 114 In my view, none of the grounds upheld by the primary judge warranted setting aside the decision. Nor should his Honour's judgment be upheld for the additional reason identified in the notice of contention. I would make the following orders: (1) Allow the appeal from the judgment and orders in the Common Law Division. (2) Set aside orders made by the primary judge on 4 August 2009 and (as to costs) on 10 February 2010. (3) In place of those orders, (i) dismiss the summons, and (ii) order the plaintiff to pay the costs of the first defendant of the summons. (4) Order the first respondent (Mr Morton) to pay the appellant's costs of the appeal. (5) Grant Mr Morton a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal. 115 CAMPBELL JA: Finding someone guilty of misconduct, in a respect that had not been charged but that emerged in the course of a disciplinary hearing, is precisely the conduct that the High Court held was a denial of natural justice in Smith v New South Wales Bar Association (1992) 176 CLR 256. I agree with the reasons of Allsop P, and with the orders he proposes. ********** 09/07/2010 - Added case citation to coversheet - Paragraph(s) Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.