C2005/3251, Transcript of Proceedings [2005] AIRCTrans 1787 (30 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12520-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER SIMMONDS

C2005/3251

AUSTRALIAN BUREAU OF STATISTICS
AND
MR ANTHONY JOHN CUNNINGHAM
s.45 Appeal to Full Bench
(C2005/3251)

HOBART

10.37AM, TUESDAY, 16 AUGUST 2005

Reserved for Decision

PN1

MR B DUBE: I seek leave to appear for the Australian Bureau of Statistics.

PN2

MR R GRUEBER: I appear with MS R GRECH for the respondent.

PN3

JUSTICE GIUDICE: Thank you. Mr Dube, where are we? I know we're in Hobart, but the proceedings.

PN4

MR DUBE: In respect of how I am to proceed, I had understood that the best way of doing it would be this morning to deal with submissions on the appeal and then the Commission then might consider the issue of fresh evidence. It would be my submission that the evidence, in that the Commission is inclined to hear it, it's probably best to be heard after the Commission has a better understanding of the nature of the case as opposed to it being given right at the outset when the issues of dispute between the parties and also the issues which we would seek to raise on the appeal are perhaps not as clear as I hope they would become at the end of our submissions.

PN5

JUSTICE GIUDICE: In a nutshell, what is the new evidence directed to? How would you characterise it?

PN6

MR DUBE: The evidence of Mr Chubb is probably the more critical evidence to the Bureau's case. It relates to a finding by Commissioner Eames that
Mr Cunningham could have been demoted to an ordinary program within TSD which the Commission may have seen stands for technical services division and it's our case that there was no evidence at all on that basis or on the point upon which Commissioner Eames could have made that finding and Mr Chubb's evidence goes to the nature of the statistical assistants that are used, the roles that are conducted within the technical services division and the fact that it's not feasible in respect of considering the issue of reinstatement for Mr Cunningham to be able to give what Commissioner Eames describes as an ordinary programming position.

PN7

JUSTICE GIUDICE: Well, the primary submission is that the finding simply wasn't open.

PN8

MR DUBE: That's correct.

PN9

JUSTICE GIUDICE: But then you wish to lead evidence from Mr Chubb to indicate that as a matter of fact, if there had been evidence, the finding wasn't open in any event.

PN10

MR DUBE: That's right.

PN11

JUSTICE GIUDICE: If you're successful on the first point, there won't be any need for the second point, will there, or will there?

PN12

MR DUBE: Your Honour, I suppose it depends on what the Commission is inclined to do in respect of this matter by way of rehearing.

PN13

JUSTICE GIUDICE: Generally speaking, we wouldn't take fresh evidence unless there was a very good reason for it, if, for example, it was available and wasn't called as has been raised I think in the respondent's submissions, so we would need to be persuaded that we should as it were open the evidence up again with the attendant possibility that it might take us further than we currently foresee it might.

PN14

I must say, Mr Dube, that we've read the decision and quite a deal of the material. I can't say personally I've read every bit of the material, but a substantial amount of it and it does seem to me that it would be desirable to deal with the question of fresh evidence at the outset or fairly close to the outset. The two gentlemen concerned I gather are in Sydney.

PN15

I am not sure exactly what time they are to be there, but we have got video link facilities available this morning to if necessary conduct any cross-examination, so I think it would be desirable, unless you've got anything compelling to submit, that we deal with the question at the outset and then the submissions can be made in light of the decision on that point.

PN16

MR DUBE: Yes, your Honour.

PN17

JUSTICE GIUDICE: I might hear from Mr Grueber about that. Mr Grueber, do you have any submission to make about how we proceed?

PN18

MR GRUEBER: My preference, your Honour, would be to deal with the issues of further evidence at the outset, as you've indicated and I would be happy to deal with, flowing on from that, the matter of leave and the substantial aspects.

PN19

JUSTICE GIUDICE: Yes. All right, I think we might proceed that way,
Mr Dube, so if you could give us the benefit of your submissions on why we ought to accept the evidence both of Mr Chubb and Mr Hunter.

PN20

MR DUBE: Your Honour, in respect of Mr Chubb's witness statement, I understand the Commission has been provided with a copy of that.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR DUBE: Mr Chubb's evidence at first instance and we accept the premise that if the evidence had been available in the first instance, that ordinarily the Commission shouldn't in its discretion allow further evidence to be given. In respect to a couple of issues, firstly Mr Cunningham gave evidence in chief on the first day relating to the nature of encryption or data, statistical data within the Bureau of Statistics and that was evidence which was not contained within
Mr Cunningham's witness statement, nor was it indicated it was going to be a part of Mr Cunningham's argument in his outline of submissions, so the first time the Bureau was made aware of that particular issue was in the course of his evidence in chief and Mr Chubb as is pointed out in my learned friend's submissions gave evidence on the second day and some of those points were put to him in evidence in chief and also some of those points were put to him in cross-examination.

PN23

One of the answers he gave essentially was that he wasn't in a position to answer whether or not all statistical data within the Bureau of Statistics was protected by encryption. We then finished Mr Chubb's evidence and during the lunch adjournment he made some inquiries and following the lunch adjournment, we sought to recall Mr Chubb to deal with that particular issue and his evidence in respect of being recalled is in the appeal books. I understand, your Honour, that the appeal books have now been numbered with page numbers at the bottom.

PN24

JUSTICE GIUDICE: Yes, what page are we up to?

PN25

MR DUBE: This is appeal book page 140. Your Honour, at paragraph number 1110, you'll see that Mr Chubb had been recalled and we asked him in respect of any embargoed data and encryption and he said he had managed to open it and it wasn't encrypted and Mr Cunningham's counsel took some further cross-examination and Mr Chubb clarified that as far as he could see, the data wasn't encrypted.

PN26

SENIOR DEPUTY PRESIDENT WATSON: I seem to have different pagination, Mr Dube. Its paragraph number - I don't seem to have paragraph number 1110. That's probably missing and been paginated as the document was. You don't have a spare copy of that volume, do you?

PN27

MR DUBE: I do have a copy of it, your Honour.

PN28

SENIOR DEPUTY PRESIDENT WATSON: I seem to be missing from 80 through to 1321. Thank you.

PN29

MR DUBE: So, your Honour, that was the extent of Mr Chubb's evidence on being recalled and in the Commissioner's decision, the relevant paragraphs are firstly paragraph 67 which is appeal book page 9:

PN30

I note for the record that data for the most part is protected by secure encryption keys of 128 bits in length.

PN31

And then also the finding at paragraph 81 which is the fourth bullet point where Commissioner Eames said that:

PN32

ABS statistical data is protected in their embargo material print access for the MPA database where it's protected by encryption keys.

PN33

Now, in respect of that we would say the evidence of Mr Chubb goes to the point of establishing that that is not the case in respect of all the data. In respect of the way in which Commissioner Eames approached the decision, it was already evidence which is, if you accept the rest of the Commissioner's reasonings, of a high probative value, that it does to the point of the nature of the access and what protections the Bureau has in place to protect its data, so, your Honour, that's the first part of Mr Chubb's fresh witness statement.

PN34

JUSTICE GIUDICE: I am not quite following, Mr Dube. There was an opportunity to give whatever evidence your client thought appropriate. It went as far as to reopen Mr Chubb's evidence and to deal with the question of the encryption of pre-embargoed data. Are you suggesting that there was no opportunity to elaborate on that evidence?

PN35

MR DUBE: Your Honour, the answers that Mr Chubb gave when recalled we thought dealt with that issue completely and then we have the findings which, with respect to Commissioner Eames, seem to completely ignore that point.

PN36

JUSTICE GIUDICE: Yes, well, I quite understand that as a submission, but why should you be permitted to call fresh evidence about the point?

PN37

MR DUBE: Your Honour, it would be that if this Commission is inclined to grant leave to appeal and goes on to consider the application in its entirety, that it will be a relevant issue that this Commission will need to consider, being the nature of the material that Mr Cunningham may or may not have access to and the veracity of the Bureau's claims that even if you accept there's a loss of trust and confidence, that the material is not protected to the extent that ABS could guarantee its protection in having Mr Cunningham reinstated.

PN38

JUSTICE GIUDICE: Yes, I follow.

PN39

MR DUBE: But in both instances, your Honour, the evidence of Mr Chubb and Mr Cunningham, we seek to introduce that evidence on the assumption that this Commission is inclined to obviously refuse to grant leave to appeal, but secondly go on to consider that question for itself.

PN40

COMMISSIONER SIMMONDS: Can I just how that evidence of Mr Chubb relates to paragraph 67 of the decision. You referred us to that and I just can't see - - -

PN41

MR DUBE: It relates to the finding or Commissioner Eames says:

PN42

I note for the record that data for the most part is protected by secure encryption keys of 128 bits in length.

PN43

COMMISSIONER SIMMONDS: Well, from Mr Chubb's evidence alone, that's not the case with pre-embargoed material.

PN44

MR DUBE: His evidence at that stage, yes, was that he understood that it wasn't protected at all.

PN45

COMMISSIONER SIMMONDS: Well, he says for the most part. Now,
pre-embargoed material is not the most part, is it? Are you saying that other material is not protected by the 128 bit encryption key?

PN46

MR DUBE: There's probably two points, I think, your Honour. Firstly, the pre-embargoed data which you see later on references to the EMPA database - - -

PN47

COMMISSIONER SIMMONDS: Yes.

PN48

MR DUBE: That is on my understanding the only data within ABS that is protected by encryption keys.

PN49

COMMISSIONER SIMMONDS: But I thought Mr Chubb's evidence was that it wasn't.

PN50

MR DUBE: That's correct. ABS has a whole range of statistical systems. All the statistical data is collated and then publications are put together. Those publications are then released at various times. Now, once the publications are prepared for release, they go into the embargoed material print access database. Now, when they're in that database, Mr Cunningham's evidence was that it was all protected by encryption.

PN51

Mr Chubb's evidence on being recalled was that it wasn't protected by encryption. His subsequent witness statement indicates that some of it is and some of it isn't. Mr Chubb obviously was only able to give evidence to the best of his knowledge at first instance. He's since gone into it further.

PN52

COMMISSIONER SIMMONDS: Are you saying that the finding he makes, to the extent that it's a finding, in 67 wasn't open to him, on the evidence that was before him? I can understand what you're saying about the dot point in paragraph - I understand the point about that dot point. I don't understand what you're saying about paragraph 67.

PN53

MR DUBE: Not if you accept Mr Chubb's evidence.

PN54

COMMISSIONER SIMMONDS: The evidence below.

PN55

MR DUBE: Yes. His evidence on re-examination was that none of the data was encrypted in respect of that EMPA database.

PN56

COMMISSIONER SIMMONDS: Yes, but he's not referring to the EMPA database in 67. He says:

PN57

I note for the record that data for the most part is protected.

PN58

And you're saying the only data that's protected is that in the EMPA database and even then not all of it.

PN59

MR DUBE: That's right.

PN60

COMMISSIONER SIMMONDS: What was the evidence before him on that matter, apart from Mr Chubb's statement?

PN61

MR DUBE: There was the evidence of Mr Cunningham which said that within the EMPA database there was encryption of all data and then there was the evidence of Mr Chubb and this is at appeal book page 132 and this is paragraph number 1031 and it's line number 10 or 11 where Mr Chubb said:

PN62

Generally ABS does not use encryption heavily because there's an associated business risk involved in it.

PN63

Then at appeal book page 138 in cross-examination at paragraph 1091 Mr Chubb said:

PN64

Generally data is not protected using encryption keys within ABS.

PN65

COMMISSIONER SIMMONDS: So what's the answer in 1092 about?

PN66

MR DUBE: The answer was that if the data is encrypted, then it is secure.

PN67

COMMISSIONER SIMMONDS: So the answer is really no.

PN68

MR DUBE: Probably. I think Mr Chubb's evidence was that there was a number of ways that ABS protected and this is back to paragraph 1031, there was a number of ways which ABS protected its data and this is appeal book page 131 - - -

PN69

JUSTICE GIUDICE: Just a moment, Mr Dube. Yes, go ahead, Mr Dube.

PN70

MR DUBE: The essence of Mr Chubb's evidence was that ABS has a number of mechanisms to protect its data, but the use of encryption is very limited and that in respect of the particular point that he is being asked in respect of the EMPA database, Mr Chubb's evidence at first instance was that it wasn't protected at all.

PN71

JUSTICE GIUDICE: Can I just get your agreement or otherwise to a couple of things, Mr Chubb. It's clear the issue of encryption of data was one that was squarely raised in the proceedings.

PN72

MR DUBE: Yes, your Honour, it was squarely raised, but only for the first time during evidence in chief of the applicant.

PN73

JUSTICE GIUDICE: Yes, I understand that and is there any reason why the evidence now sought to be called couldn't have been called in the proceedings?

PN74

MR DUBE: No, your Honour. I would have to say that that evidence could have been - I think it's fair to say had it have been raised in the context of the witness statement or in the context of the applicant's outline of submissions, it would have been something that we would have been more aware was - or was considered to be a critical issue in the application and Mr Chubb would have been in a position to deal with all of those issues at that stage.

PN75

JUSTICE GIUDICE: But the issue has been given added importance from your client's point of view because of the Commissioner's finding on the issue.

PN76

MR DUBE: That's right.

PN77

JUSTICE GIUDICE: And your final point I think is that if the Commission were to grant leave to appeal and decide this matter for itself, then it ought to have
Mr Chubb's evidence on the point which is relevant.

PN78

MR DUBE: That's right.

PN79

JUSTICE GIUDICE: All right. Thank you.

PN80

MR DUBE: Now, your Honour, in respect of Mr Hunter, his evidence is probably not as crucial to the issues in terms of - if I approach it from this way. We would say there is a significant amount of evidence which was before Commissioner Eames which dealt with the nature of the misconduct and the argument that was raised by the Bureau that his conduct involved him improperly exploiting his position to obtain a benefit or an advantage.

PN81

Now, the statement of Mr Hunter merely takes that one step further in respect of a change that was made to the Sydney footy tipping competition which only became apparent in the course of preparing one of our witnesses or one of the Bureau's witnesses in Ms Watson who gave evidence as to the changes that became apparent on reviewing - her preparing her evidence and reviewing the data, that a further change had been made to that Sydney footy tipping competition which had not previously been noted.

PN82

Now, the effect of that change being made and the logs indicate that that change was made after the result of the game was known, Mr Hunter's statement goes on to indicate that because of the point or points Mr Cunningham got from that change being made, he ended up tying for first place in the Sydney football tipping competition and getting a monetary reward for that and had that not been changed, he wouldn't have won or tied for the competition and therefore wouldn't have got the benefit or advantage.

PN83

Now, it's our submission that that evidence adds to the case and we would say it's not evidence which couldn't have been available at any stage, but it does go - the reason we seek to introduce it is because the way the Commission approached the matter, your Honour may have seen in our submission, we say that Commissioner Eames completely ignored the whole of that element of the Bureau's case and again if the Commission is inclined to grant leave and go on to determine the issue, we say it is evidence which is relevant to the nature of the Bureau's case and goes to the nature of the underlying conduct.

PN84

JUSTICE GIUDICE: To clarify that, this material came to light during the preparation of the witness statements for the case before Commissioner Eames?

PN85

MR DUBE: That's right.

PN86

JUSTICE GIUDICE: Was there any - if you could just take me to the statement, could you indicate what parts of it are completely new, as it were, which weren't part of the evidence at all before the Commissioner?

PN87

MR DUBE: Mr Hunter's statement, your Honour?

PN88

JUSTICE GIUDICE: Yes.

PN89

MR DUBE: Your Honour, in respect of - there is other evidence which indicates most of these issues in the statement other than paragraph 7 and probably paragraph 9. I mean, paragraph 8 is just sort of procedural in terms of when the money was sent. In paragraph 9, it's my understanding there's no dispute that
Mr Cunningham agrees he was paid money for tying in the Sydney competition and obviously paragraph 10 is new, but the Commission may have seen
Mr Cunningham's supplementary statement which he has sought to file which indicates he agrees that the money was given to him by Mr Sweeney.

PN90

JUSTICE GIUDICE: Yes. The statement in paragraph 6, there was evidence as to that?

PN91

MR DUBE: Yes, and that was in Ms Watson's annexures.

PN92

JUSTICE GIUDICE: Yes, and there was evidence as to the fact that he tied for the winning place.

PN93

MR DUBE: Yes, I think he might have even agreed to that in his evidence in chief.

PN94

JUSTICE GIUDICE: Yes, all right.

PN95

MR DUBE: So it really is just the effect of the change which is set out in paragraph 7.

PN96

JUSTICE GIUDICE: It's almost a matter of inference, isn't it?

PN97

MR DUBE: It probably could be inferred.

PN98

JUSTICE GIUDICE: It's just a piece of mathematics, isn't it?

PN99

MR DUBE: I'd like to say it was, your Honour, but having looked at the rules for how the Victorian competition worked, I'm not sure that simply getting a tip wrong might have resulted in that, but I may be able to - - -

PN100

JUSTICE GIUDICE: We're not going to assume that the tips would have been altered to score less points, fewer points.

PN101

MR DUBE: No, but I suppose in terms of the ultimate conclusion that had that tip not been changed, Mr Cunningham wouldn't have still tied first place.

PN102

JUSTICE GIUDICE: Yes, I see.

PN103

MR DUBE: So, your Honour, they're the two witness statements that we would seek to introduce. Can I just indicate, my understanding from what your Honour said earlier was that you understood both witnesses were in Sydney. It's only
Mr Hunter who's in Sydney. Mr Chubb is actually here in person.

PN104

JUSTICE GIUDICE: I see.

PN105

MR DUBE: And he is available today and tomorrow.

PN106

JUSTICE GIUDICE: Very well. Yes, Mr Grueber.

PN107

MR GRUEBER: May it please the Commission. I have included in the respondent's submissions, quite substantial submissions, the opposition to the further evidence being called and I would submit that evidence was available at that time and had ample opportunity to call it at first instance and if necessary to re-open in respect to that.

PN108

Further, in respect to Mr Hunter's evidence, in my submission it's not sufficient on the material in the sense that there's nothing there in our submission that would be likely to lead to ..... all of that evidence is accepted. Mr Chubb's evidence is slightly different, if I could put it another way. We concede materiality with respect to the evidence, matters that conceivably could result in a different result without conceding that they should in fact result in a different result should they be accepted.

PN109

However, the principal issue in my submission in respect to considering whether it should be led relates to the availability of the evidence at first instance and once again as I've outlined in the written submissions, there was ample opportunity for Mr Chubb to give that evidence or to be recalled to give that evidence. He was in fact recalled on one occasion. He was available to appear ..... and there's one further matter and that is, that's not a ..... of the hearing Mr Cunningham applied to enable this case in respect to the hearing security type matters raised in
Mr Chubb's evidence and at page 162 of the appeal book at paragraphs 1323 and following, the application is in respect to Mr Chubb's evidence and the response of the ABS was to oppose the re-opening and at this stage the ABS hadn't closed its case.

PN110

Mr Cunningham closed his. The ABS was still in evidence. The ABS proposed re-opening the case and in the event the Commissioner didn't permit the case to be re-opened, but at paragraph 1332 he essentially says that he'll deal with this matter of weight in considering his decision. Now, without trying to sound pejorative, it's somewhat hypocritical in my submission of the ABS to oppose the re-opening of those issues at first instance and then effectively seek to leave further evidence on those matters on the appeal.

PN111

I might say, your Honours, if you're inclined to rule in favour of the application to lead further evidence, Mr Cunningham will apply to lead further evidence in rebuttal and two statements of Mr Cunningham, one relating to Mr Chubb's statement and the one relating to Mr Hunter's statement filed and served. If your Honour pleases.

PN112

JUSTICE GIUDICE: Thank you, Mr Grueber. Anything else, Mr Dube?

PN113

MR DUBE: Nothing, your Honour.

PN114

JUSTICE GIUDICE: We will adjourn for a few moments to consider what's been put. Thank you.

<SHORT ADJOURNMENT [11.14AM]
<RESUMED [11.24AM]

PN115

JUSTICE GIUDICE: We’ve considered what's been put. We've decided not to admit the evidence which it is sought to introduce primarily on the basis that it appears the evidence was available or could have been discovered by reasonable inquiries at the time of the hearing before the Commissioner. We think as a general principle it's undesirable that parties should be permitted to adduce fresh evidence in circumstances where the main purpose for so doing is to challenge findings in the decision under appeal when that evidence could have been called with reasonable diligence in the proceedings at first instance. Yes, Mr Dube.

PN116

MR DUBE: Thank you, your Honour.

PN117

JUSTICE GIUDICE: You can still make arrangements for Mr Hunter to be notified.

PN118

MR DUBE: Thank you, your Honour. Your Honour, we have arranged copies of cases that the applicant relies on.

PN119

JUSTICE GIUDICE: Yes, thank you.

PN120

MR DUBE: Your Honour, in respect of the Bureau's notice of appeal, the Bureau relies on three grounds for seeking leave to appeal, being jurisdictional error, failure to consider and make findings and errors in findings of fact and that's set out in out notice of appeal. Just in terms of the notice of appeal, there is in paragraph 2 in respect of failure to make findings, there's a reference to paragraph 170CG(3)(a) and (b). In respect of paragraph (b), that isn't pressed by the Bureau so that should be - - -

PN121

JUSTICE GIUDICE: That's confined to the issue of valid reason?

PN122

MR DUBE: Yes. Your Honour, in terms of outlining what the Bureau's case is and why we say the Commissioner at first instance failed to properly consider the issues before it and that in itself amounted to jurisdictional error, it would be our submission that it's worthwhile tracing through the history of the decision to terminate the case which was put to Commissioner Eames so that then your Honour can see where the Bureau says Commissioner Eames erred in not addressing or not properly considering the valid reason argument.

PN123

Your Honour, firstly if we could go in volume 2 of the appeal books, appeal book page 457, your Honour, that's the decision by Mr David Rorty which is the decision under section 15 of the Public Service Act 1999 that there has been a breach of the APS code of conduct and your Honour will see on the first page that there is a decision by Mr Rorty that there was a breach of three elements of the code of conduct and they're set out there, being:

PN124

The failure to behave honestly and with integrity, did not at all times uphold the APS values and improper use of inside information or duties, status, power or authority to gain a benefit.

PN125

So right at the outset the first point we say is there is a finding that there is conduct which has given rise to a breach of three elements of the code, then the next point would be at page 460, about half way down the page where Mr Rorty says:

PN126

Mr Cunningham suggested that any change as reported may have been caused by a system fault or a replication error.

PN127

And the next paragraph goes on, Mr Rorty makes the conclusion that:

PN128

Mr Cunningham was consciously cheating with his late changes.

PN129

At pages 460 to 461 then make findings in respect of and provide reasons for why Mr Rorty was satisfied that there was a breach of each of those elements of the code, so he's been asked to investigate all three elements and his conclusion is that:

PN130

The nature of the conduct gives rise to a finding that all three elements have been breached.

PN131

SENIOR DEPUTY PRESIDENT WATSON: Is it usual for the criminal standard to be applied in code of conduct matters? Mr Rorty has referred to a finding beyond reasonable doubt.

PN132

MR DUBE: Generally it's balance of probabilities.

PN133

JUSTICE GIUDICE: He refers to the balance of probabilities on 457, doesn't he?

PN134

MR DUBE: Yes, in terms of his findings, so, your Honour, in respect of the steps that are taken under the Public Service Act and the procedures for investigating breaches of the code, Mr Rorty's decision is that there has been a breach of the code of conduct specifically in respect of three elements and that arises from the changing of the football tips. The next document that I take your Honour to is appeal book page 304A which is again in volume 2 and this is the delegate in respect of the sanction being Ms Duff.

PN135

SENIOR DEPUTY PRESIDENT WATSON: Sorry, what page?

PN136

MR DUBE: 304A.

PN137

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN138

MR DUBE: This was the letter that Ms Duff wrote to Mr Cunningham indicating that her preliminary view was that the appropriate sanction was termination of employment and without going through the whole of that letter, the relevant points we say are at paragraph 12 Ms Duff refers to the nature of the breaches, that is there are three breaches of the code and that her decision or proposed decision on sanction is in respect of all of those breaches.

PN139

She notes she's spoken to the relevant - what she considers to be the relevant supervisors or managers in the IT section. That's paragraph 14. She goes on at paragraph 17 to indicate in her view that there hasn't been a significant appreciation by Mr Cunningham of the seriousness of his actions or any appreciation of misuse of his administrator access warrants any sanction.

PN140

We say this is the first indication at the outset which has been the ABSs case the whole way through that it's not just the conduct itself, but it's then the attempts by Mr Cunningham to put a benign face on the nature of his conduct which overall when considered amounted to a valid reason for determination and I come back obviously to Commissioner Eames' decision ultimately, but that second point of being the issue of putting a benign face on the nature of the conduct, Commissioner Eames we would say with respect did not address that point at all in his reasons.

PN141

Finally paragraph 18, Ms Duff indicates that she is of the view that because of
Mr Cunningham's lack of understanding of the seriousness of his actions, that it severely damaged the relationship of trust and confidence within the Bureau, so that's the I am of a mind letter. There's then the decision on termination which is at appeal book page 363 and relevantly for the purposes of this point, Ms Duff is of the view that termination is appropriate and imposes the sanction of termination.

PN142

At the bottom of paragraph 16 on appeal book page 365, Ms Duff indicates that she was of concern that Mr Cunningham was being dishonest in the responses he was giving to her and to other people and she goes on to say that:

PN143

This to my mind further demonstrates Mr Cunningham's dishonesty about the events in question.

PN144

And she elaborates on that in paragraph 17.

PN145

JUSTICE GIUDICE: I don't quite follow that, Mr Dube. Could you take me through that again, please?

PN146

MR DUBE: Paragraph 16 - - -

PN147

JUSTICE GIUDICE: Yes, I have the paragraph.

PN148

MR DUBE: Ms Duff is of the view that Mr Cunningham's responses to her and to Mr Rorty were inconsistent and she formed the view that he was being dishonest about his explanations for the conduct and that she goes on to say it's of great concern to her and further demonstrates his dishonesty and again that's an element we say of the whole matrix of whether or not there was a valid decision, being that there was a view that Mr Cunningham was being dishonest to the relevant people involved in investigating the breach of the code and imposing the sanction of termination and finally at paragraph 19 - - -

PN149

JUSTICE GIUDICE: Could I ask you a question about the round 21 change?

PN150

MR DUBE: Yes, your Honour.

PN151

JUSTICE GIUDICE: Did the evidence conclusively deal with whether the tips had been changed accepting they were changed after the close-off time, had been changed before or after the result of the game was known?

PN152

MR DUBE: This is the evidence before Ms Duff or the evidence before the Commissioner?

PN153

JUSTICE GIUDICE: Well, either.

PN154

MR DUBE: My understanding is in respect of Ms Duff, the evidence suggested that at least one of the tips was changed after the results of the games were known. Before the Commissioner, the evidence we would say quite clearly indicated that all of the round 21 tips were changed after the results of the games were known.

PN155

JUSTICE GIUDICE: That's the finding she makes in paragraph 17.

PN156

MR DUBE: Because at that stage, the indication I think from Mr Cunningham or at least his evidence to Ms Duff was that he had made the changes on the Saturday and no changes on the Sunday.

PN157

JUSTICE GIUDICE: Yes. Thanks. You were going to take us to paragraph 19, weren't you?

PN158

MR DUBE: Yes, paragraph 19, your Honour, Ms Duff again reinforces the view that she had set out in her I am a mind letter that she considers that
Mr Cunningham has failed to appreciate the critical role he plays as a system administrator and the impact of abusing his administrator access has on ABS systems, so that's the termination letter and Mr Cunningham's employment with the Bureau was terminated on the basis of that finding under section 29 of the Public Service Act.

PN159

Then there was an application lodged in the Commission and following conciliation, election was made to proceed to arbitration and the applicant filed submissions or an outline of submissions and they are set out at appeal book page 245 which is in volume 1 of the appeal book and, your Honour, the points we would make in respect of what the applicant's case was when the application was lodged in the Commission and the way the matter was conducted before Commissioner Eames was that the starting point for Mr Cunningham was that - and this is at the top of page 246, the applicant's submissions were on the balance of probabilities, no breach of the APS code of conduct took place and, hence, there was no valid reason for termination and then alternatives were given.

PN160

So that was the first point. We say the applicant disputed that there were breaches - sorry, Mr Cunningham disputed that there were breaches of the code of conduct, then page 247 we would say reinforces the applicant's explanation for his putting a benign face on the conduct was that the statement says:

PN161

The applicant acted in a way that he considered consistent with custom and practice in place at ABS in respect of late entry of footy tips.

PN162

Then it goes further on in that paragraph:

PN163

The applicant was of the opinion that he was following a custom and practice that was in place, as he had a Tattersall's Tipstar ticket which verified his choice of tips prior to close-off.

PN164

So there were two points we would say arising out of the applicant's submissions as put in opening to Commissioner Eames, that there were no breaches of the code of conduct and we would say that his outline of submissions continues to place a benign face on the nature of the conduct. Now, in response to that, your Honour, the Bureau filed an outline of submissions which is at appeal book page 251 and in particular we would say it was made quite clear what the Bureau's case was and this is appeal book page 254 at paragraphs 26 and 27 that there was a valid reason for termination because of the breaches of the code of conduct.

PN165

Furthermore, your Honour will see at paragraph 27 that we say the applicant's conduct in attempting to deceive his employer in the explanations provided for his actions in attempting to place a benign face on his actions irreparably damaged the relationship of trust and confidence with his employer and we referred then to two decisions of the Commission of McIndoe and Post v Cadbury Schweppes and I'll come back to those decisions later because they were again reinforced during the hearing before Commissioner Eames.

PN166

The further point probably to make in respect of the issue of whether or not Mr Cunningham's conduct fell within the meaning of employment, we dealt quite significantly with that issue at paragraphs 30 through to 39, but particularly at paragraph 36 we noted that there was misconduct in attempting to place a benign face on his misconduct and in lying to various ABS staff in an attempt to conceal the deceit and that that occurred during office hours, ie. that was when he was being questioned by Mr Rorty and providing responses to Ms Duff.

PN167

There's then, your Honour, the closing submissions by the applicant which were given at the end of the third day of the hearing and this is appeal book page 259. The points that we would make in respect of that, your Honour, is at page 260 under the heading valid reason for termination:

PN168

We say quite rightly -

PN169

Mr Cunningham's submissions say -

PN170

Where the conduct of the employee relied on by the employer is in dispute, the Commission is obliged in such circumstances to investigate where the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

PN171

It then goes on to say:

PN172

It's the applicant's submission that he has not breached any of the requirements of the code of conduct as alleged by the Bureau.

PN173

And the reasons are set out there, so at the end of three days of hearing, the position of Mr Cunningham was still that he had not breached the code of conduct and so we would say it was clearly still an issue in determining whether or not there was a valid reason as to what was the nature of the conduct - sorry, what was the conduct and what did it involve and that, your Honour, was reinforced in the applicant's oral closing submissions. This is at appeal book page 193, paragraph 1627, which is the final paragraph on that page where Ms Grech for
Mr Cunningham said:

PN174

It's the applicant's submission that as a starting point, he hasn't breached any requirements of the code of conduct as alleged by ABS.

PN175

And goes on to say the reason that they're relying on that is by his own evidence he has acted with honesty and integrity and then it goes on over the page to indicate why in Mr Cunningham's view none of the elements of the code were committed. The other paragraph is paragraph 1640 which is at the bottom of appeal book page 195 where Ms Grech says:

PN176

In addition, the applicant has consistently stated his position in respect to his intention or conduct in changing the tips and at no point has he denied that he made changes to round 21 on the Saturday which it is his evidence was the only intentional conduct he knew he had made, the only intentional conduct he participated in.

PN177

So, your Honour, again the oral closing submissions, two points were made, (1) Mr Cunningham disputed the breaches of the code and, (2) said that in all the investigations, he had acted honestly and always provided for frank answers to anyone who was asking him about the conduct, so that we would say is clearly at odds with what the Bureau's position was on both of those points.

PN178

Your Honour, the Bureau's closing submissions start at appeal book page 197 and paragraph 1650. We indicated to Commissioner Eames that the Bureau was of the view that if this was a case, as it said there that Mr Cunningham had right at the start admitted the conduct, said it was wrong and that he accepted full responsibility for it and that it was a breach of the code of conduct, that that would have been a completely different issue to the way that the case proceeded before Commissioner Eames and we say that the evidence indicated and, in fact, the submissions and oral evidence of Mr Cunningham indicate that that was not the case he was putting to Commissioner Eames.

PN179

SENIOR DEPUTY PRESIDENT WATSON: How does that correspond to
Ms Duff's finding you took us to earlier at 365, paragraph 16? Ms Duff's conclusions seem to be based on who approached Mr Hunter, but nothing to do with what Mr Cunningham said to Mr Hunter. Mr Cunningham in either cases conceded his actions.

PN180

MR DUBE: Sorry, Senior Deputy President.

PN181

SENIOR DEPUTY PRESIDENT WATSON: The report of Ms Duff at 365, paragraph 16, indicates confirmation by Mr Hunter of Mr Cunningham's statement that Mr Hunter contacted him after he'd changed the tips. He told him he had. Ms Duff then goes on to refer to later observations by Mr Cunningham that the differences went really as to who approached who first, rather than to whether or not Mr Cunningham conceded his actions to Mr Hunter. In both instances, in both of the statements quoted there, Mr Cunningham seems to have conceded his actions of altering the footy tips.

PN182

MR DUBE: Yes. In respect of - I suppose in this instance Ms Duff was of the view that there was - and she elaborated on this in her oral evidence that there was a significant inconsistency between Mr Cunningham saying initially that he approached Mr Hunter and said I changed the tips and what appeared to be he later evidence which was that Mr Hunter had contacted Mr Cunningham and said I've noticed your tips have been changed, what's going on, so that was the point of Ms Duff's - - -

PN183

SENIOR DEPUTY PRESIDENT WATSON: But in both instances,
Mr Cunningham conceded to Mr Hunter what he did, if you like.

PN184

MR DUBE: Yes, although there was - in both instances Mr Cunningham didn't concede or didn't in any way tell Mr Hunter that he had changed his tips after the results of the games were known. The evidence that was before Commissioner Eames was that Mr Hunter assumed from his discussions and emails with
Mr Cunningham that he had changed his tips on the Friday afternoon, after the close-off of the competition, but before any games were played and so that was we would say a significant omission by Mr Cunningham and significantly damaged the claim that he has made that he was open and up front to the organisers in respect of the changes.

PN185

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN186

MR DUBE: Your Honour, we would say that the way the case was run by both Mr Cunningham and the Bureau clearly pointed to the following key issues being very much at issue during the hearing and requiring determination by Commissioner Eames and those issues were firstly did his conduct amount to breaches of three separate elements of the APS code of conduct?

PN187

The second would be did Mr Cunningham attempt to mislead ABS in respect of the nature and extent of his conduct? The third issue was did that constitute a valid reason for the termination? Fourthly, was Mr Cunningham given an opportunity to respond to the proposed termination and then the subsequent termination and there appeared to be, although probably for the purpose of this appeal, it doesn't appear to be a significant issue, but it was sort of raised in passing by Mr Cunningham, that did ABS comply with its procedures and were they adequate having regard to the requirements or the issues that must be considered in section 170CG(3)?

PN188

SENIOR DEPUTY PRESIDENT WATSON: You don't put on that list of issues whether the punishment, the termination was proportionate to the offence.

PN189

MR DUBE: That we would say fits within - or part of the issue, did it constitute a valid reason. Your Honour, if we then were to go to Commissioner Eames' decision which is at appeal book page 1, from pages 1 through to 5 of Commissioner Eames' decision he sets out essentially the background of the case and the arguments put by Mr Cunningham and by the Bureau and we say he does indicate at least in the background that the issues I've just highlighted to your Honour were live issues between the parties before him, being that - and this is at paragraphs 11, 12 and 13, being what Mr Cunningham's case was, particularly on the balance of probabilities, no breaches of the ABS code of conduct took place and then paragraph 13, that the view that Mr Cunningham was acting in accordance with custom and practice and he was up front about his conduct to people in authority prior to any investigation commencing.

PN190

Then the case put by the Bureau being that there was breaches of the code and that there was an attempt, this is paragraph 25, to conceal the extent of the misconduct, paragraph 29:

PN191

The applicant continued to conceal the nature and extent of his misconduct.

PN192

At paragraph 36:

PN193

The applicant continued his pattern of trying to conceal the extent of his misconduct and trying to place a benign face on the misconduct.

PN194

So we would say Commissioner Eames clearly was aware that those were all live issues between the parties and that he was required in determining whether or not there was a valid reason for the decision to address those issues. Now, his findings and reasoning are then set out in paragraphs 39 through to the end of the decision and with respect to Commissioner Eames, it would be the Bureau's submission that his reasons do not disclose with any certainty an understanding of the reasoning process he's applied in adjudicating those live issues before the parties.

PN195

We would say most importantly his findings and his reasons do not make any findings on the issues or the questions he was obliged to make or the questions and answers he was obliged to consider.

PN196

JUSTICE GIUDICE: Does he make any findings about precisely what happened in relation to the access to the system and alteration?

PN197

MR DUBE: Your Honour, not particularly. I will come back to this in a minute, but at paragraph 44 there is a rather intriguing statement that the applicant's behaviour in the footy tipping competition left a lot to be desired. There is then references at paragraph 46 that the applicant agreed that some tips were changed after the results were known and that Commissioner Eames wasn't satisfied at least in respect to the explanation for the double right clicking as that was the reason for some of the tips being changed, but he doesn't anywhere indicate in his reasons whether he's satisfied as to what tips were changed and when they were changed and we would say that's a very important part of the nature of the conduct and I have taken your Honour to some of those issues that arose in respect of that, our submissions in our notice of appeal about the failure to make findings on particular issues.

PN198

SENIOR DEPUTY PRESIDENT WATSON: Well, the Commissioner does not, doesn't he, the applicant's concession that some tips were changed after the event and, indeed, a concession that the applicant had breached the code of conduct and then he goes on to ask the question whether the punishment, the termination, fitted the crime, was the breach a valid reason for the termination? He seems to have accepted the applicant's concessions on those points, does he not? Some tips were changed, there was a breach of the code of conduct. In a sense, it doesn't matter how many tips were changed.

PN199

MR DUBE: Well, I think it is an issue because of the fact that it was quite clear that the Bureau's argument was if the tips had been changed and he'd been honest and up front about it, it wouldn't have been a matter that warranted termination, but in not being up front and attempting at every step along the way to provide other explanations for why the tips might have been changed or not explained and not be up front in saying when the tips were changed, that that was a real live issue before Commissioner Eames and even in respect to that finding, if that's what it is at paragraph 50, that Mr Cunningham acknowledges he's breached he code of conduct, it's not clear - I will take your Honours back to it shortly - as to which elements of the code Commissioner Eames is then satisfied have been breached.

PN200

Your Honour, these points were outlined in grounds 1 and 2 of our notice of appeal and at paragraph 13 of our outline of submissions we note that we would say the Commission was required to consider and make findings in respect of each of the reasons for termination in issue. When the reasons for termination are based on misconduct of an employee, the Commission must determine whether that conduct occurred and what it involved.

PN201

If it did occur, the Commission just then go on to consider whether the applicant's conduct was sufficiently serious to warrant termination. There's a number of cases which have dealt with that particular issue, but the one which we've referred to in our list of authorities is the decision of the Full Federal Court in Edwards in which Moore and Marshall JJ addressed a decision of the Full Bench of this Commission on this whole issue of what needs to be done to satisfy the requirements under paragraph (a) of section 170CG(3) and his Honour Moore J said in that decision and this is at page 93 that:

PN202

The obligation was -

PN203

under paragraph (a) -

PN204

to give reasons which deal with the material, legal and factual issues presented for determination.

PN205

We would say and I'll expand on it, that Commissioner Eames didn't do that. Marshall J says at page 98 of that decision what we would say is almost equally applicable to Commissioner Eames' decision and Marshall J said at paragraph 40 on page 98:

PN206

It appears to have been accepted by Commissioner Tolley that Ms Edwards engaged in misconduct. However, there were no findings made precisely identifying that misconduct or its gravity. The failure to make such findings in my view reveal a deficiency in the reasoning process engaged in by the Commissioner, to the extent that in a real sense, the obligation to give reasons for the decision at first instance was therefore not fulfilled.

PN207

And that was the same view taken by his Honour Moore J at pages 92 and 93 so, your Honour, we would say that that is clearly on point with the way Commissioner Eames has approached the decision-making process and perhaps if now I could to illustrate that take your Honour through what appears to be the findings and reasons to illustrate why we say that those findings weren't made and reasons provided in respect of that.

PN208

The first paragraph, your Honour, would be paragraph 41 where Commissioner Eames acknowledged that he was required to look at the relevant sections of the code and he goes on in paragraph 43 to identify what those elements were and as has been outlined earlier this morning, each of those were findings by the Bureau that each of those elements of the code had been breached by virtue of the conduct. Commissioner Eames then makes what I described earlier as this intriguing statement at paragraph 44. He says:

PN209

On the question of behaving with honesty and integrity, in general I am satisfied on the basis of the evidence before me that the applicant's behaviour regarding the footy tipping competition left a lot to be desired.

PN210

Now, with respect to Commissioner Eames, the question must be, well, what does that actually mean? Has he made a finding that there's been a breach of section 13(1)? Has he made a finding that there's been a breach of subsection 13(11)? He doesn't say anything in respect to whether or not there's been a breach of subsection 13(10) so we have what appears to be a finding.

PN211

JUSTICE GIUDICE: Under the relevant statement in paragraph 54 I suppose might be taken as an expression of opinion that the code hadn't been breached because changing footy tips isn't work related.

PN212

MR DUBE: So that would then be a finding, if that's correct, that Commissioner Eames is saying I'm not satisfied that there's been a breach of subsection 13(1), but he's still saying that I'm satisfied there's been a breach of subsection 13(11) and paragraph 54 doesn't still illuminate in any way what his finding is in respect of subsection 13(10).

PN213

JUSTICE GIUDICE: Yes, well, in your submission 13(11) extends beyond conduct in the course of employment.

PN214

MR DUBE: Yes, your Honour, and there's Federal Court authority, a decision of Finn J in McManus v Scott Charlton which related to the Public Service Act 1922, but deals with the regulations under that Act which are quite similar to the code and forms a view that the course of employment - that extra element of the code goes beyond just employment.

PN215

JUSTICE GIUDICE: That's not in your authorities, is it, this decision?

PN216

MR DUBE: Sorry, your Honour, I can get the citation for that, for your Honour.

PN217

JUSTICE GIUDICE: Yes, I think I've recently had to look at that case for another reason.

PN218

MR DUBE: So, your Honour, we've got paragraph 44 where Commissioner Eames says the behaviour has left a lot to be desired. We then have paragraph 46 where he says Mr Cunningham agrees that some tips were changed after the results were known and then we have paragraph 50 which is this again blanket statement that there has been a breach of the code of conduct or an acceptance by Mr Cunningham that there has been a breach of the code of conduct and I'll come back to paragraph 50 in a minute, but Commissioner Eames says having accepted that charge, the question is which charge?

PN219

Has he accepted that all elements of the code have been breached or having regard to paragraph 54, is he saying two elements of the code have been breached and it's just, with respect to Commissioner Eames, not clear what he means when you read those paragraphs together and we would say on the authority of the Full Court's decision of Edwards that that in itself amounts to an error of law in that there hasn't been a finding as to what the conduct involved and what the conduct was, particularly because he makes no findings on whether the alleged conduct took place other than in passing and he specifically doesn't say whether it amounted to breached of two elements of the code and in respect of section 13(1) of the code, that paragraph 54 then raises doubt as to whether he accepts there was a breach of that element of the code.

PN220

The further point, your Honour, is nowhere in his reasons does Commissioner Eames address in any way the second element of ABSs argument that there was a valid reason for termination being the attempt - the benign face on his conduct. It just is not addressed at all in the reasons.

PN221

SENIOR DEPUTY PRESIDENT WATSON: What do you mean by that, the argument that he attempted to place a benign face on his conduct?

PN222

MR DUBE: The case that was put to Commissioner Eames was that on the basis of authorities such as McIndoe, that Post v Cadbury Schweppes case, a decision of Williams v Centrelink, that if conduct itself which might be considered trivial and might not in itself warrant termination of employment, if because of the way in which the employee attempts to cover up that conduct or it attempts to explain or justify that conduct, to the extent of possibly being dishonest about the conduct itself, that that when considered in all of the circumstances of the case can give rise to that trivial incident amounting to - - -

PN223

SENIOR DEPUTY PRESIDENT WATSON: You say the Commissioner didn't give consideration to that?

PN224

MR DUBE: We say he didn't at all.

PN225

SENIOR DEPUTY PRESIDENT WATSON: What about page 9 of his decision? Doesn't he address issues of that type there? He comes to a different view to
Ms Duff as to remorse, for example, but certainly addresses Mr Cunningham's actions after the conduct and makes findings in relation to it. There's a difference between whether he accepted your argument as against not considered.

PN226

MR DUBE: Senior Deputy President, we would say that he didn't consider it and he didn't - we would say that paragraph 64 and 65 don't indicate why he has rejected the Bureau's arguments on that. I mean, he's accepting that he's remorseful.

PN227

SENIOR DEPUTY PRESIDENT WATSON: Well, he's done it on the basis firstly of the applicant's demeanour and on the basis of pieces of correspondence which he's cited in the decision, so he does say why he has come to that conclusion.

PN228

MR DUBE: Senior Deputy President, in respect to that - - -

PN229

SENIOR DEPUTY PRESIDENT WATSON: Have you looked at the conclusion against the balance of the evidence?

PN230

MR DUBE: I beg your pardon:

PN231

SENIOR DEPUTY PRESIDENT WATSON: Is the conclusion against the balance of the evidence?

PN232

MR DUBE: We would say it is and I was going to come back to those particular two paragraphs later in respect of particularly some of those exhibits just not indicating what Commissioner Eames says they do, but what we would say Commissioner Eames is doing is because he's only - even if the Senior Deputy President is correct in that Commissioner Eames has dealt with our argument in respect of the conduct, he's doing it in isolation and this is set out at paragraph 16 of our written submissions of simply on the issue of changing the footy tips and not in respect of we say the whole nature of the conduct.

PN233

Perhaps if I can come back to paragraphs 64 and 65. Your Honour, in our outline of submissions at paragraphs 15 through to 35 we do a couple of things. Firstly, some of the background to the case which I've taken your Honour through this morning as to what the case was before Commissioner Eames and how it was argued is set out in some detail there, but it does go on to look at this issue which we say is tied up in terms of like the jurisdictional error and the failure to make findings, being that it was only looked at in respect of the changes to the footy tips and not the broader context and this is paragraph 16 of what ABS says the case was put to Commissioner Eames.

PN234

Your Honour, in respect of the failure to make findings, they are dealt with in some detail in our written submissions, but perhaps just as a way of highlighting one of those, paragraph 16.4, we would say Commissioner Eames doesn't in his reasons indicate at all why he wasn't satisfied with the Bureau's argument that there was a serious damage to the relationship of trust and confidence with the Bureau and there was we would say significant evidence before Commissioner Eames on that issue.

PN235

It was clearly a live issue before Commissioner Eames and he just didn't address it in his reasons and just perhaps to give the Commission an indication of what some of that evidence was, Ms Watson gave evidence. She's a senior within the Bureau and at page 121 of the appeal book, she was asked and this is paragraph 938 by myself how serious she considered the conduct to be. She said she considered it very serious:

PN236

The ABS places its entire reputation on trust and if we don't have the trust in the census and statistics as to the use to enforce information from our providers.

PN237

She was I think then asked - the other evidence was the evidence of Mr Chubb and this is at appeal book page 132, paragraphs 1033 and 1034 that Mr Chubb was asked in terms of the seriousness of the conduct and how it affects the ABS and he goes on to take the view, he expresses the opinion that:

PN238

Once someone has demonstrated a lack of judgment in terms of using their administrator access, it becomes an ongoing management issue as to how you manage that person in the workforce thereafter.

PN239

And he was asked also in respect of:

PN240

It is not whether he did anything wrong.

PN241

He says:

PN242

No, in my view I think that underscores it, someone not prepared to take responsibility for their actions and take responsibility for their mistakes and it underlines my opinion that they're untrustworthy.

PN243

And Mr Chubb was also asked by the Commissioner at page 138:

PN244

From your point of view, at what level of trustworthiness or a breach of trustworthiness does one risk termination. What is the cut-off in relation to that?

PN245

Mr Chubb said:

PN246

My opinion is much higher than in practice. We have people working at ABS who I thought would have been terminated. I think that petty larceny, I think that misuse of administrator access, I think that misuse of access to buildings are all things that I'll be looking at very carefully in considering that.

PN247

Mr Rorty was asked by the Commissioner whether he - and this was the decision-maker in respect of just a breach, whether he agreed with the sanction of termination and this is at appeal book page 172, Mr Rorty said:

PN248

At the time I was doing it, it wasn't my decision. I was just there to try and investigate and determine whether there had been a breach. In hindsight, thinking about it, I don't disagree.

PN249

And that's the sanction of termination and Ms Duff's evidence which is at appeal book pages 173 and 177, it's the case that she formed the view that because of the breach of trust and confidence, that was her reason for saying termination was appropriate and she particularly addressed at appeal book page 177 this whole central issue of changing of footy tipping in itself seems to be quite a trivial thing, how then do you say that that warrants the sanction of termination and paragraph 1469 sets out Ms Duff's reasons for why she formed that view. Now, we would say that Commissioner Eames, with respect, just doesn't deal with any of that in questioning whether or not, as he says in paragraph 51 whether the punishment of termination fitted the crime.

PN250

SENIOR DEPUTY PRESIDENT WATSON: In respect to that, Mr Dube, you put the Commissioner at paragraph number 1650 and put to us on appeal, well, looked if he 'fessed up, put his hand up straight away, then he wouldn't have been terminated, we wouldn't be here, so that obviously raises issues as to the evidence of what his actions after the termination were - sorry, after the conduct involving the footy tipping were as well as the conduct in respect to the footy tipping.

PN251

Are you going to take us to the evidence that supports your proposition that the applicant did seek to deceive the employer and place a benign face on it? In the outline at - sorry, you refer to 1476 and that really seems to be Ms Duff saying, well, yes, he did say he was remorseful and understood the consequences, but, hey, I've been investigating these sorts of things for a long time and he would, wouldn't he, so I just don't believe him. It raises the question of how one could ever demonstrate one's remorse to Ms Duff.

PN252

MR DUBE: I don't think I'm in a position to answer Ms Duff's opinion on that, but in terms of the evidence, perhaps particularly the evidence - if I approach it from this way, if I can take your Honours to the explanations that Mr Cunningham initially gave, the explanations that he gave in evidence in chief and the explanations he gave in cross-examination, so probably the first document would be appeal book page 179, towards the end of volume 1, which is an email which Mr Cunningham sent to - it refers to Jenny and that's Ms O'Connor who was the delegate in respect of the decision to suspend Mr Cunningham.

PN253

His explanation there is on Saturday the changes were made to the tips and that on the Monday morning, he'd been to see Mr Sweeney and told him he'd changed his tips after close-off and then he told Mr Hunter that he'd changed his tips after close-off. So Mr Sweeney is the administrator of the Tasmanian tipping competition, Mr Hunter is the administrator of the Sydney tipping competition and Mr Lucas, as it says, from the Victorian competition was the administrator of that competition and he didn't notify him at all.

PN254

JUSTICE GIUDICE: How do the three competitions as a matter of practice, how did they work? Were there three entries?

PN255

MR DUBE: Yes, they are all AFL tipping competitions.

PN256

JUSTICE GIUDICE: I understand that much of it, but could you alter - I mean, let's say the alterations that are referred to here, they had to actually be made in three separate competitions?

PN257

MR DUBE: That's right, your Honour.

PN258

JUSTICE GIUDICE: Yes, so three separate web pages?

PN259

MR DUBE: Yes. Your Honour, perhaps to illustrate that, if I take your Honour to appeal book page 387 and, your Honour might be familiar with the concept of screens, so this is the screen for the different competitions for the Victorian rules in round 21 and you'll see that there are the eight games that were played that weekend and also a reference to goals down the size.

PN260

JUSTICE GIUDICE: Yes.

PN261

MR DUBE: Now, to pick a game, you would tick the box of the team you're going to pick and in respect to the Victorian rules competition, you also had to pick a margin, so that's the Victorian rules one, then over at page 390 is the Sid and Stella's competition. Now, that's what's been referred to also as the Sydney football tipping competition.

PN262

JUSTICE GIUDICE: I see, yes.

PN263

MR DUBE: Similar tick a box, but it's a separate database and finally at page 393 there is the Tasmanian tipping.

PN264

JUSTICE GIUDICE: I see. Is there evidence about what the prize money was in each of those competitions? I know there's something about the Sydney one we've read recently, but I'm not sure that's actually in the evidence.

PN265

MR DUBE: At page 521, your Honour, there is a document which lists a number of those competitions and the approximate prize pool. The two are the Sid and Stella's - sorry, the Victorian and the Tasmanian tipping.

PN266

MR GRUEBER: Your Honour, perhaps if I could assist, the only recollection I have of the evidence that was led that related to a dollar amount is at paragraph number 101 which was page 32 of the appeal books. It refers to Mr Cunningham's evidence in chief relating to his interview with Mr Rorty and he refers to Mr Rorty - at the end of that paragraph we spoke about the amount of money that was to gain from the Victorian rules competition that week of $15.

PN267

JUSTICE GIUDICE: It was a weekly prize by the sound of it?

PN268

MR GRUEBER: My assumption is that it was a weekly prize, yes.

PN269

MR DUBE: Your Honour, there is at least in terms of the amounts of money that Mr Cunningham won, at appeal book 637 is the witness statement from Mr Lucas who was the administrator of the Victorian rules competition and if you win the round, there was a prize of $15 and that's referred to at paragraph 16 and then an indication at paragraph 19 that Mr Cunningham won second prize which was $115.

PN270

JUSTICE GIUDICE: Is that in the Melbourne one?

PN271

MR DUBE: Yes, it's the Melbourne one. In Mr Hunter's statement which is appeal book page 619, he indicates the prize money for the bucket which you'll see at paragraph 5 indicates is a combination of the Australian rules so the AFL and the rugby league competitions and that that was $180.

PN272

JUSTICE GIUDICE: For what?

PN273

MR DUBE: That's for winning the combined competition.

PN274

JUSTICE GIUDICE: At the end of the year?

PN275

MR DUBE: Yes, at the end of the year.

PN276

JUSTICE GIUDICE: Well, what's that? Is that Sid and Stella, is it?

PN277

MR DUBE: That's Sid and Stella's and the NRL competition and you'll see at paragraph 15 Mr Cunningham says:

PN278

Two changes was as a result of scoring an extra eight points in the Sid and Stella's, an extra four in the bucket, he would have won the bucket with those additional four points after the amendments were made and the scores correctly tied for first place in the bucket.

PN279

So he would have got, I assume if it's $180, $90 for the bucket competition.

PN280

JUSTICE GIUDICE: What page is that?

PN281

MR DUBE: Appeal book 619 to 621.

PN282

JUSTICE GIUDICE: Thank you.

PN283

MR DUBE: I'm not sure, your Honour, whether Mr Sweeney gave any evidence as to the amounts in the Tasmanian competition, but I think there's evidence that there wasn't a weekly prize in the Tasmanian competition. Your Honour, then perhaps just going back to appeal book page 279, we have this initial response when Mr Cunningham has indicated - he's informed that there's a suspected breach of the code. He says:

PN284

I changed all my tips on the Saturday, I told Chris Sweeney and then after that I changed my tips. I didn't tell Peter Lucas and the reason for changing the tips is that I had picked those games which I subsequently changed when I entered my Tattersall's tip on the Friday afternoon.

PN285

So it was a crucial part of Mr Cunningham's case that his explanation for changing his tips were justified because of the Tattersall's tipping ticket because that indicated he had formed a view as to the games that were going to be played that weekend on the Friday afternoon prior to any of the games being changed and
Mr Cunningham expressed the same explanation in his response to Mr Rorty which is at appeal book page 285. It is essentially the same document that he sent to Ms O'Connor.

PN286

JUSTICE GIUDICE: You were at 279 a moment ago, before you took us to that last piece of evidence. There's no suggestion in that explanation that the tips were changed after the results were known.

PN287

MR DUBE: No, although because of the games that had been - or the round, there was a game on Friday night and at least one game on the Saturday afternoon. Both of those two games Mr Cunningham changed the results in.

PN288

JUSTICE GIUDICE: What was the state of the evidence eventually? I know that you're going to take us to that, but just for the purpose of comparing this statement on 3 September - - -

PN289

MR DUBE: Your Honour, what we would say the points that come out of this would be is that firstly Saturday afternoon when Mr Cunningham says the tips were changed because they didn't match my Tattersall's entry, there's a few points from that. Firstly, the tips he'd put in for three competitions were different in respect of some games. So the results he changed weren't consistent across all three competitions, so depending on, for example, in one game he changed the Kangaroos to beat the Western Bulldogs whereas in another pub competition he' already - the other way around. In another competition, he'd already picked the Western Bulldogs to win.

PN290

The other thing which he doesn't admit in this document or in fact didn't admit at any time until evidence in chief was that in respect of the Victorian rules competition, he also changed the margins of the results of one of those games and the Tattersall's footy tipping competition doesn't have a margins component, so there's we would say a key point in there that the Tattersall's tip which he says explains why it is that he had prior, or had formed his view as to the results prior to the games being played, had no explanation in respect to changing the margins.

PN291

JUSTICE GIUDICE: Now, what about the statement that the tips were changed on the Saturday afternoon? Was that subsequently proven to be incorrect or not?

PN292

MR DUBE: It was proven - we would say it was proven that some games were changed on the Saturday afternoon and a further result was changed on the Sunday afternoon, again after the game had been played on the Saturday night. Your Honour, what we would say the evidence then established in the course of the hearing was that Mr Cunningham evidently did not tell Mr Sweeney or
Mr Hunter or, indeed, Mr Lucas that he had changed his tips after the results of the games were known.

PN293

The evidence of all those three gentlemen was that a clear impression they got from the discussion they had with Mr Cunningham was that he had changed his tips on the Friday afternoon prior to any games being played. Again from the change from this first letter on 3 September was at no stage did he inform
Mr Lucas that he had changed the margins in respect of one, the Victorian rules competition and didn't tell Mr Sweeney or Mr Hunter either that he had changed margins in respect to the Victorian rules competition.

PN294

JUSTICE GIUDICE: But that was admitted later?

PN295

MR DUBE: It was admitted in evidence before the Commission. The other issue relates to the round 19 changes which were referred to - - -

PN296

JUSTICE GIUDICE: 20 August was which round? That was 18? That might have been the last round.

PN297

MR DUBE: That was 21, then the weekend of 8 August was round 19. Now, the code of conduct investigation Mr Rorty did in respect of round 21 - I suppose there's two points to make in respect to that. In the initial notification of the breach, for the suspected breach of the code is at appeal book page 267.
Ms O'Connor included a security incident report.

PN298

COMMISSIONER SIMMONDS: Sorry, what was the page reference again?

PN299

MR DUBE: 267.

PN300

COMMISSIONER SIMMONDS: Thank you.

PN301

MR DUBE: Attached to that and this starts at page 270 is the security incident report which notes the changes to round 21. It then goes on your Honour will see two-thirds of the way down appeal book page 271 under that box it says:

PN302

It should be noted that a similar pattern of activity after close of entries was found to have occurred elsewhere.

PN303

And then in respect to the Victorian rules in round 19 and that:

PN304

There was a similar pattern found in respect of SFL, Sid and Stella's Tas tipping and tip before the season.

PN305

And so it was noted in the security report that there had been these other changes been made. I understand that on further investigation that at least the tip the season before it starts, there weren't any changes made and also I think the SFL competition, there weren't change made, but the Sid and Stella's, the Tas tipping, there had been changes made and those changes were in respect of rounds 19 and also round 21 and Mr Rorty in undertaking his investigation focused on the changes to the Victorian rules competition in round 21 because that was the subject of the complaint that was made by a fellow competitor that it had been changed and so his view was, well, that was what the issue was to be investigated and further it goes on to say that for resource reasons, he wasn't able to investigate at that stage the changes in the other competition, but felt he didn't need to, because he was satisfied that there had been clear breaches in respect to the round 21.

PN306

Now, the point that comes out of that security incident report is that
Mr Cunningham also has said that he was always up front about everything and was willing to admit to additional breaches notwithstanding it had never been raised with him. Now, he gave evidence in chief that - I think it's also in his witness statement, that he had been up front in telling Mr Rorty and Ms O'Connor that he'd changed the tips beyond simply the Victorian rules round 21, whereas in actual fact, at appeal book page 271 it's quite clear from the outset that the Bureau knew that tips had been changed in other competitions.

PN307

SENIOR DEPUTY PRESIDENT WATSON: Did Mr Cunningham know that the Bureau knew at the time?

PN308

MR DUBE: Yes, because that report had been provided to Mr Cunningham. That was annexed to Ms O'Connor's letter of 2 September 2004.

PN309

JUSTICE GIUDICE: What page is that at?

PN310

MR DUBE: The letter is at 267 to 271 and I think, your Honour, there may be - Ms O'Connor emailed those three pages to Mr Cunningham. There were attachments which were the actual logs that went with them and the Commission may have seen in Mr Cunningham's evidence and in his outline of submissions that those documents weren't provided to Mr Cunningham until he was interviewed by Mr Rorty, but this particular incident report which indicates all of those breaches was provided to him on or about 2 September. Your Honour, in evidence before the Commission, this is at appeal book page 22, paragraph 22,
Mr Cunningham says at the bottom of that paragraph and this is on the Saturday, round 21:

PN311

I changed my tips to match the tips to match the Tipstar entry that I had in my wallet at the time, so my AFL tips were changed in all three competitions to match the Tipstar entry that I had and then I packed up and left for the day.

PN312

So his explanation in evidence in chief which is the same as what is in his witness statement, the same as what he told Ms O'Connor and Mr Rorty was that having or formed a view as to what the tips should be based on his Tattersall's tipping competition, he came in on Saturday afternoon and changed all the games in all three competitions. Now, it wasn't until - I suppose the next point is in respect of the evidence in chief that Mr Cunningham says he first told Mr Sweeney, his evidence is at appeal book page 24, paragraph number 38 where he says:

PN313

I spoke to Chris Sweeney and told him I'd changed my Tipstar for the close-off on Friday night and asked him if that was okay.

PN314

And refers to the Tatts Tipstar competition and the discussion went on between them as to, well, that wasn't appropriate and they should be changed and then appeal book page 25, paragraph number 51, it's the discussion he has with Ian Hunter. He says:

PN315

I changed them after close-off on Friday. Is that okay? I told him I'd won the Tatts Tipstar that weekend.

PN316

They had a discussion and said that he should change them back. He goes on to say that there was no discussion with Mr Lucas, then Mr Cunningham first admits at appeal book page 49, at paragraph 235 in answer to a question:

PN317

Did you actually change the margins in round 21 when you changed the tips?

PN318

And this is he first time anywhere in the documentation or any evidence that
Mr Cunningham gave was that he agrees that he changed margins as well. What was then put - - -

PN319

SENIOR DEPUTY PRESIDENT WATSON: Where is that again?

PN320

MR DUBE: Appeal book 49, paragraph number 235.

PN321

COMMISSIONER SIMMONDS: At 232, Commissioner Eames puts to
Ms Grech that:

PN322

There's no debate that it happened, is there, from anyone?

PN323

And that's referring to the changing of the margins.

PN324

MR DUBE: Well, Commissioner, it hadn't been admitted at all prior to that. The Bureau had filed a number of - - -

PN325

COMMISSIONER SIMMONDS: By that stage of the proceedings, though, there was no debate about it. That's the comment the Commissioner made.

PN326

MR DUBE: That may be - I am not sure what his view was, but Mr Cunningham hadn't admitted it in any documentation.

PN327

COMMISSIONER SIMMONDS: Ms Grech in the next line says:

PN328

No, but I'm going to the intent of his changes.

PN329

So certainly by that stage there was no debate about whether or not the changes had occurred to the margins, that is.

PN330

MR DUBE: My understanding was that - - -

PN331

COMMISSIONER SIMMONDS: Well, the words are there.

PN332

MR DUBE: Yes, Commissioner. I'm not in a position to say why the Commissioner formed that view and it may be because he had read the witness statements for the Bureau, but there is nothing in any of the documents filed by Mr Cunningham prior to the hearing or anything in his evidence in chief up until this point in time where Mr Cunningham admits that he changes the margins.

PN333

JUSTICE GIUDICE: This evidence was led, though, by his own counsel, wasn't it?

PN334

MR DUBE: Yes, and in our submission it was in response to the fact that the Bureau's witness statements made it quite clear that margins had been changed in respect to round 21 and the point is that at no time prior to that had
Mr Cunningham admitted to it or alerted anyone that he had changed the margins.

PN335

His explanation up until that stage was I formed my view in relation to the Tattersall's tipping competition and I changed my tips on the basis of that view and nothing is said at all about margins being changed and I think I've indicated, I would say it again, the Tattersall's tipping competition doesn't require margins to be tipped. Now, in respect of the explanation given for the changes, your Honour, there were a number of explanations first given by Mr Cunningham as to why those changes might have been made.

PN336

JUSTICE GIUDICE: I am sorry, I have missed that.

PN337

MR DUBE: The explanation as to how the changes to the tips might have been made.

PN338

JUSTICE GIUDICE: Yes, this is about the mouse clicks.

PN339

MR DUBE: Yes, so that the explanation about it perhaps being a right double click, there was some discussion, but I think it was eventually not pressed that it could have been a replication error within the system. There was a further explanation given that Mr Cunningham did testing on the system and he might sometimes change his tips to see how the system would work and he may have written down his tips as he says he put them in on a Friday and then re-entering them once he had finished his testing, he might have accidentally re-entered them back in.

PN340

SENIOR DEPUTY PRESIDENT WATSON: When did all this occur? His initial 3 September letter or explanation concedes that he went in and changed it on the weekend.

PN341

MR DUBE: This is in respect of round 19, but initially - it would be my submission, initially in examination in chief there was some attempt to suggest that the tips may have been changed because of say the right double clicking error, but that was admitted in cross-examination - - -

PN342

SENIOR DEPUTY PRESIDENT WATSON: On the Saturday/Sunday or - - -

PN343

MR DUBE: Yes, but in cross-examination, I think it's fair to say that it was admitted that the changes in round 21 were all deliberate conscious changes made, but Mr Cunningham wouldn't admit that the changes he made to round 19 were deliberate. It was his sworn evidence that they were all inadvertent changes, either caused by a double clicking error or writing down the tips incorrectly when he re-entered them. Your Honour, I don't know if that is an appropriate time.

PN344

JUSTICE GIUDICE: Yes, it's getting pretty close. We'll resume at 2 o'clock. Are you able to say how much longer you might be?

PN345

MR DUBE: I think I might be a little while. Your Honour, in respect to the issues, once I've dealt with this issue of the changes in evidence, then I was proposing to go through the errors on the finding of fact which is ground 3 of our notice of appeal and just to take your Honour through those documents may take a little while.

PN346

JUSTICE GIUDICE: Very well, anything you can do to shorten that process would be useful, I think, but nevertheless, obviously in a case such as this where findings are in issue, then you'll need to take us to the relevant material. We'll adjourn now until 2 o'clock.

<LUNCHEON ADJOURNMENT [12.58PM]
<RESUMED [2.06PM]

PN347

JUSTICE GIUDICE: Thanks, Mr Dube.

PN348

MR DUBE: Thank you, your Honour. Your Honour, perhaps just to give an indication of what is left for me to address, there's just a few points to finish off the issue of the change in perhaps I will describe it as storage that
Mr Cunningham told about the changes to his tips and then I was proposing to address the no evidence or inadequate evidence grounds which are set out in our notice of appeal.

PN349

JUSTICE GIUDICE: Thank you.

PN350

MR DUBE: Your Honour, in respect of Mr Cunningham's evidence as to telling the organisers of the various competition when he changed his tips, the implication that was drawn from the correspondence he sent to Mr Rorty and to Ms O'Connor was that he told Mr Sweeney and Mr Hunter that he'd changed the tips on the Friday afternoon, before the results of the games were known - sorry, before the games were played and at appeal book page 86 in cross-examination at paragraph 623 through to 628, Mr Cunningham admitted that he was quite happy to leave them and that being Mr Sweeney and Mr Hunter and Mr Churchill with the impression that his tips had been changed on the Friday and he said at paragraph 628:

PN351

And you were quite happy to leave them with the impression that your tips had been changed on the Friday?

PN352

And he says:

PN353

I guess so.

PN354

Now, Mr Sweeney, Mr Churchill and Mr Hunter all gave evidence before Commissioner Eames and I won't take your Honour to what each of them said, but the references to their evidence is, Mr Sweeney's is at appeal book page 105,
Mr Churchill's is at appeal book page 112 and Mr Hunter is at appeal book page 150 and all of those three - - -

PN355

JUSTICE GIUDICE: Page?

PN356

MR DUBE: 150.

PN357

JUSTICE GIUDICE: Thank you.

PN358

MR DUBE: All of those three gentlemen indicated in their evidence that they were under the impression or they thought it was a matter of logic that
Mr Cunningham would have changed his tips on the Friday afternoon prior to any games being played. The next point, your Honour, would be in respect of changing of the margins and the first page I would take your Honour to would be appeal book page 56 from paragraph 288 through to 295 where I put to
Mr Cunningham that the first time that he'd admitted to changing margins and he said:

PN359

I believe that might be correct.

PN360

He agreed it wasn't in his brief of evidence, he agreed he didn't tell Ms Duff, he didn't tell Mr Rorty, he didn't tell Ms O'Connor and he didn't tell Mr Lucas and his answer was, no, explicitly he didn't tell Peter Lucas who was the administrator of the Victorian rules competition that he'd changed the margins. The cross-examination then went on to deal with the question of what would constitute cheating according to Mr Cunningham and at appeal book page 50, paragraph 333, I said to Mr Cunningham:

PN361

Do you agree with me that a person who knows the results of games and then changes the tips is, to put it bluntly, a cheat?

PN362

He said:

PN363

Well, in my case I don't believe so.

PN364

If we then go to page 61 to Mr Cunningham's view that without documentary evidence he was willing to agree that changing tips when you know the results of the games constitutes cheating and his explanation for why his changes didn't constitute cheating was the Tattersall's tip receipt and that's at paragraph number 352. It says:

PN365

Your explanation to the changes you made to the tips not being cheating is because you had Tatts tip receipt?

PN366

He said:

PN367

Correct.

PN368

At page 73 in paragraph 474 to pretty much the bottom of that page, it was put to Mr Cunningham that the Tipstar, or the Tattersall's receipt doesn't in any way indicate Mr Cunningham's view as to the margins of games prior to the close-off on Friday and he said he agreed with me that:

PN369

The Tipstar receipt does not in any way at all indicate your view prior to close-off on Friday, 20 August, that you intended to tip Adelaide to win by three goals and not two goals?

PN370

And he said:

PN371

Yes, I agree with that.

PN372

Now, your Honour, just in terms of explaining the way the Victorian rules competition worked was the close you got your margins to the actual results, the more points one got in respect of that particular tip in that round and I put it to him that the Tipstar receipt would no way establish that he formed the view that Adelaide would win by three goals instead of two and he said:

PN373

That's correct.

PN374

I put to him that that would have been cheating even on the formula he had accepted and he said:

PN375

If that's what you want to call it.

PN376

So then I put it to him directly that in terms of the Adelaide/Geelong game, round 21:

PN377

When you changed the tip on Saturday afternoon -

PN378

so this is after the game had been played -

PN379

you cheated?

PN380

And he said no and your Honour will see the Commissioner said at that stage he thought I had made my point and so I moved on from that, so clearly the explanation that the Tattersall's receipt was the reason why Mr Cunningham was justified in changing all his tips in round 21 was established to be clearly incorrect in respect to the change in the margins in the Adelaide/Geelong game in that round. Your Honour, the final point in respect to that would be again in respect to the Victorian rules competition. Mr Cunningham and this is at appeal book page 647 sent an email to Peter Lucas who was the administrator of the Victorian rules competition.

PN381

Now, that email was sent to Mr Lucas after Ms Duff had written to
Mr Cunningham and indicated that she was of the mind to terminate his employment and in that letter, sorry, in that email to Mr Lucas he doesn't indicate that he changed the margins, he doesn't indicate that he changed the tips in round 19 notwithstanding that he was fully aware at that stage that he had and so again we would say he attempted, even explaining himself at that stage, to - sorry, and the other point is he doesn't tell Mr Hunter when he changed the tips, whether that was on the Friday, before the commencement of the games, or on the Saturday and the Sunday when he actually changed them, so, your Honour, we rely on our outline of submissions at paragraph 15 to 35.

PN382

I've taken the Commission through an example of one of those points. Our submissions do outline further the explanation for some of those other points and this morning I took your Honour through the basis of the Bureau's case and why all those issues were relevant to determine why Commissioner Eames was required to make findings on those points.

PN383

Moving on then to the question of wrong findings of fact, we say and this is set out in our submissions from paragraph 36 through to 50, your Honour, looking at the first what we say is no evidence or any adequate evidence to make the finding, that is the conclusion that Commissioner Eames reaches at paragraph 50 of his reasons that it is clear that Mr Cunningham acknowledges that he has breached the code of conduct by his actions in spite of his qualified evidence at paragraphs 721 to 732.

PN384

Perhaps firstly if we go to paragraphs 721 to 732, the two relevant paragraphs really are paragraphs 724 and 725 and this is questioning from the Commissioner to Mr Cunningham. He says:

PN385

Do you think you've breached the code of conduct?

PN386

Mr Cunningham's answer was:

PN387

I don't believe so, not with all the explanations accounted for.

PN388

He's asked:

PN389

Why do you say that?

PN390

He says:

PN391

I need to know the three areas I was dismissed on. I don't believe I've behaved dishonestly for starters. I was totally up front about the changes. I did them purely out of having some other tips to tick off and I don't believe that I said anything untrue or incorrect to any of the people during the course of the investigation, so I don't believe I was acting dishonestly.

PN392

So that's in direct questioning to the Commissioner. The Commissioner relies entirely on that finding on a letter which Mr Cunningham wrote to Ms Duff having received her I am a mind letter and that's exhibit G9 which is the letter of 9 November 2004 and, your Honour, that letter is in the appeal book at page 359. The relevant paragraph which Commissioner Eames relied on, the second one, is on page 360 where he says:

PN393

I realise I breached the APS code of conduct. I've made a terrible mistake and I'm truly sorry for abusing my privileges and trust that have been granted by APS and for potentially damaging the reputation of TSD -

PN394

being technical services division -

PN395

and the ABS.

PN396

Now, in cross-examination - before I go to that, the other letters which
Mr Cunningham had written prior to being notified by Ms Duff that it was her intention to terminate his employment was the letter we went to earlier from
Mr Cunningham to Ms O'Connor which is appeal book page 279 and in that letter at page 280, Mr Cunningham says:

PN397

I agree I've breached the rules for late entries in the tipping competitions, but I don't believe I've breached the APS code of conduct. I was honest and up front with the administrators of the competition.

PN398

He repeated that same statement and that's at appeal book page 286. He says:

PN399

I don't believe I've breached the APS code of conduct. I was honest and up front with the administrators of the competition.

PN400

Now, we went through this morning in submissions to the Commission put on by Mr Cunningham, both the opening and their closing submissions. At both instances, Mr Cunningham's submissions are that he didn't believe he had breached the code of conduct. In his witness statement which was filed in the ABS there's no admission of a breach of the code of conduct.

PN401

In oral evidence before he Commission, at no stage did he agree that he'd breached the code of conduct and in respect of the statement he made in the letter of 9 November 2004 in cross-examination, I discussed that paragraph with
Mr Cunningham. Now, your Honour will see at page 360, Mr Cunningham says:

PN402

I have made a terrible mistake and I'm truly sorry for abusing my privileges and trust that I've been granted by the ABS and for potentially damaging the reputation of TSD and the ABS.

PN403

Now, at appeal book page 59, paragraph 333, I said to Mr Cunningham:

PN404

And you agree with me that in changing your tips for the tipping competitions, you breached the trust placed in you by ABS?

PN405

And his answer was:

PN406

Not entirely. I believe that I breached the trust placed in me by the administrators, but I don't believe that it's wide ranging enough to affect the whole of ABS.

PN407

And he said:

PN408

It's not a statistical system. It's got nothing to do with ABS work.

PN409

He says:

PN410

I don't believe these allegations are serious enough to cause irreparable damage between the ABS and me.

PN411

So I said to him, this is over at page 60:

PN412

So when you wrote that to Ms Duff on 9 November, you didn't mean it?---Well, at the time, I was under a lot of pressure. You understand it's my career, it's my job, it's my life we're talking about here.

PN413

And I suggested to Mr Cunningham that this letter to Ms Duff was really just paying lip service to her, hoping that he wasn't going to get sacked and he says:

PN414

Well, it was written on the suggestion of Steve Mathieson, who was the director of the Hobart office who said I think you could say a few more things.

PN415

So then I went on at paragraph 339 to say:

PN416

So when you say I humbly apologise for betraying the trust and confidence the ABS had placed in me, you didn't mean it.

PN417

He says:

PN418

I did mean it. I meant the ABS administrators at the time.

PN419

So he was - then he goes on at paragraph 341 to say:

PN420

Perhaps I should have written and humbly apologise for the perceived trust. It's a semantics error. Of course I apologise for what I did. What I did was wrong and I know what I did was wrong. At the time, I thought if I spoke to the administrators, it would be able to be cleared up and it certainly wouldn't be a job threatening problem.

PN421

So in respect to that paragraph, he qualified his evidence and said he didn't really think that he'd abused his privileges and trust other than the football tipping competition. Nowhere in cross-examination did Mr Cunningham admit that he had breached the code of conduct. In fact, at appeal book 82 he says and this is in respect of Ms O'Connor or Mr Rorty:

PN422

You didn't think you'd breached the code, did you?

PN423

And he says no:

PN424

In fact, you didn't admit it to being a breach of the code until such time as
Ms Duff wrote to you and said I'm of the mind that the appropriate sanction was termination of your employment.

PN425

And he says:

PN426

Correct.

PN427

Then finally the paragraph which I've already taken your Honour to is on direct questioning on the issue. He says, no, I didn't breach the code, not when you take into account all my explanations. We would say, your Honour, that there is nothing in the evidence before Commissioner Eames on which he could have been satisfied that he acknowledged he'd breached the code of conduct.

PN428

He admits he changed his tips, but he doesn't we would say in any way go on to say that he's admitted he's breached the code of conduct and we say there's no adequate evidence upon which Commissioner Eames could have made such a finding and definitely no evidence upon which he could make the conclusion from his evidence from the witness box that he acknowledges he's breached the code of conduct. So, your Honour, that's he first finding which we say there's no or insufficient evidence. The second one is a finding at paragraph 64:

PN429

I'm satisfied that Mr Cunningham is remorseful with regard to what has occurred.

PN430

And he refers to exhibits G6, G9 and G10 and exhibit G6 is the letter
Mr Cunningham wrote to Mr Rorty in which he admits he changed his tips and agrees he's breached the rules for late entries, doesn't admit he's breached the code, says he's honest and up front, says he's made mistakes and that he's embarrassed by it and would look forward to clearing the matter up as soon as possible.

PN431

We would say there's nothing in that exhibit G9 that indicates Mr Cunningham was remorseful with regard to what has occurred and in particular paragraph 65 where Commissioner Eames goes on and says:

PN432

In each of the abovementioned pieces of correspondence, he acknowledges the breach.

PN433

Now, if that's meant to mean the breaches of the code of conduct, well, he didn't acknowledge it in exhibit G9 and the other two exhibits are the letters that he wrote to Ms Duff having been told that she was of a mind that she was going to terminate his employment and so paragraph 66 again we would say there's insufficient evidence because Commissioner Eames says:

PN434

These expressions are offered to both Ms Duff and Mr Rorty prior to termination.

PN435

Again when you look at the evidence, he admission to Mr Rorty was, yes, I changed the tips, but there's no admission of a breach of the code and there's no we would say in exhibit G9 expression of remorse as opposed to, well, I did it, it was a mistake, but I feel I'm fully justified in what I did. Your Honour, we've been through the evidence just a minute ago in terms of the effect of that letter at G9, being that in our submission Mr Cunningham was simply paying lip service to Ms Duff because he was told he was going to lose his job and he felt he needed to say the right things to try and persuade Ms Duff otherwise and that was in our submission what the effect of his evidence was and that was inadequate evidence upon which Commissioner Eames could have concluded from that material which I've taken your Honour through that he was remorseful with regard to what has occurred as opposed to just being of the view that it was a silly mistake, but nothing further than that.

PN436

Your Honour, the next finding of fact is the finding that data for the most part is protected by secure encryption keys. This is paragraph 67. Now, the evidence that was before Commissioner Eames in respect to that is the evidence in chief of Mr Cunningham and that's at appeal book page 52, paragraph 259 and 260 and this is what the EMPA database was and in paragraph 260 he says:

PN437

The data itself was stored in a pdf which was encrypted inside of the database. To see the actual contents of the pdf, you needed to have the encryption key inserted into your particular ID file.

PN438

So that was the evidence of Mr Cunningham as to what was protected by the encryption keys, being data stored in the pdf file in respect to the EMPA database. Now, Mr Chubb's evidence at appeal book 138, paragraph 1091, said and this is at the bottom of that paragraph:

PN439

Generally data is not protected using encryption keys within ABS.

PN440

And he agreed that data was secure if it was encrypted which is at paragraph 1092. At paragraph 1031 he said:

PN441

Generally the ABS does not use encryption heavily because there is an associated business risk involved in it, that can lose the keys or don't manage he keys fairly, well, then you can lose access to your own data.

PN442

And then having sought to recall Mr Chubb, his evidence was that in respect to the EMPA database and this is at appeal book page 140:

PN443

Our determination is that it is not encrypted.

PN444

And he was asked in cross-examination about that and he says:

PN445

When you say the data in the database was encrypted, what you actually mean is that you can see the name of the documents in there, but you can't open the documents. That's correct, isn't it?

PN446

Mr Chubb said:

PN447

No, it's not. The administrator went in and actually opened the documentation, the publication which is the actual data that we were releasing, rather than just the Notes document that it's attached to.

PN448

Your Honour, we would say in respect to that finding that it was simply just not open to Commissioner Eames to find the data for the most part is protected by secure encryption keys and that again was a further finding not supported by the evidence. Your Honour, in respect to the next finding, this is paragraph 81, being the fourth bullet point, Commissioner Eames says:

PN449

I am satisfied that the ABS statistical data is protected in the embargoed material print access database whereby embargoed data is protected by encryption keys which the applicant would not be in possession of and would be unable to decode.

PN450

Now, the evidence is that - I have taken your Honour through that evidence being Mr Cunningham's evidence that pre-embargoed data was encrypted and
Mr Chubb's evidence which was tested in cross-examination on being re-admitted, that it wasn't protected. The only other evidence and we would say it's not even evidence before Commissioner Eames on that point was the applicant's closing submissions which are at appeal book page 263. The closing submissions simply state:

PN451

ABS statistical data is protected in the embargoed material print access database whereby embargoed data is protected by encryption keys which the applicant would not be in possession of and would be unable to decode.

PN452

Now, Commissioner Eames has simply taken that bullet point and indeed a number of the other bullet points in those submissions and reproduced them in the absence of any evidence or any sufficient evidence to be satisfied on that particular point. The last finding, your Honour, is again a finding at paragraph 81 that the applicant could have been demoted to a position where he did not have administrator access to databases, like an ordinary programmer in TSD.

PN453

Now, your Honour, you will see if the Commission goes back to appeal book page 263 that that's a direct copy from the applicant's closing submissions. It's our submission there was absolutely not one skerrick of evidence on this point given that there was an availability that Mr Cunningham could have been demoted to a position where he did not have administrator access to the databases.

PN454

The applicant gave no evidence whatsoever on that point. Nothing was put to any ABS witnesses who gave evidence that he was open for a demotion where
Mr Cunningham would not have administrator access to the databases and it was contrary to Mr Chubb's statement which is document number 34 in the appeal book which starts at page 613 where he said, for instance, at paragraph 16:

PN455

It would be very difficult to continue to use Mr Cunningham as a Notes programmer at any level without a higher level of Notes access.

PN456

So it would be our submission, your Honour, that in respect of that finding again there was no basis on which Commissioner Eames could have made that finding. Your Honour, we would say that the combined effect of the three grounds of appeal which we've set out, being Commissioner Eames' exercise of powers affected by jurisdictional error, that he failed to consider and make findings in respect of all of the valid reasons for termination relied upon by the Bureau and that he erred in making various findings of fact, errors sufficient upon which the Commission can be satisfied that an appeal can be made having regard to section 45 and section 170JF(2).

PN457

We say the Commission was in error in deciding to make the order it made. Our submissions go on and I won't take the Commission through those, but we say that the errors in respect of determining the valid reason also infected the Commissioner's order that Mr Cunningham be reinstated and we've included in our list of authorities a couple of cases which refer to that proposition being correct.

PN458

Your Honour, in respect of the orders we seek, that's set out at paragraph 55, we would ask that leave be granted to appeal, that the appeal be allowed and that the decision and orders of Commissioner Eames be quashed and the application be dismissed. We would say there's sufficient evidence before your Honour to make that decision, particularly, your Honour, in respect to the issue of reinstatement being quite consistent evidence by many senior people within ABS who gave evidence that the trust and confidence that ABS has in Mr Cunningham would not be able to be restored. Your Honour, unless you have any questions, they would be the submissions for the Bureau.

PN459

JUSTICE GIUDICE: Thank you, Mr Dube. We might just for the sake of identifying your submissions mark them, I think.

EXHIBIT #A1 APPLICANT'S SUBMISSIONS UNDER THE HAND OF K BENNETT FOR THE AUSTRALIAN GOVERNMENT SOLICITOR DATED 14/07/2005

PN460

JUSTICE GIUDICE: Thank you, Mr Dube.

PN461

MR DUBE: Thank you, your Honour.

PN462

JUSTICE GIUDICE: Mr Grueber.

PN463

MR GRUEBER: If it please the Commission, I'll start by handing up if I may copies of authorities referred to in the written submissions.

PN464

JUSTICE GIUDICE: Mr Grueber, we have in mind marking the submissions which were filed dated 11 August 2005.

EXHIBIT #R1 RESPONDENT'S SUBMISSIONS DATED 11/08/2005

PN465

MR GRUEBER: Thank you, your Honour.

PN466

JUSTICE GIUDICE: Thank you for those authorities.

PN467

MR GRUEBER: Your Honour, if you look at any decision by taking its minutiae in isolation, you'll find inconsistencies and what may appear to be errors. In respect to the decision of the Commissioner, the appropriate course in the submissions is to look at the approach that he took and essentially that was in the first step to look at what was the conduct complained of and did it occur and Commissioner Eames dealt with this in the context of looking at whether there was a breach of the APS code of conduct and he did that on a background of
Mr Cunningham having admitted making the changes to his tips in round 21.

PN468

If I can take you to the decision itself, at paragraphs 41, 42 and 43 the Commissioner refers to code of conduct and the relevant provisions of the code of conduct for the purposes of this case. At paragraph 44 he makes some comment about Mr Cunningham's behaviour, the question of him behaving honestly and with integrity and then he goes on at paragraph 50 to say that there is an acknowledgment of the breach of code of conduct and he finds that particularly by reference to the exhibit G9 which is referred to at paragraph 47 and which my learned friend has taken you to.

PN469

The important consideration at this point is not necessarily Mr Cunningham's acknowledgment of a breach of the code of conduct, but a finding of a breach of the code of conduct as the first step in the reasoning applied by the Commissioner, so at that point he finds that there was a breach of the code of conduct. The next step - well, actually, I'll go back.

PN470

My learned friend has talked about the failure to find specifically breaches of the relevant subsections of section 13 which sets out the code of conduct and it's correct that the Commissioner doesn't expressly say that there was a breach of section 13(1) and section 13(10) or section 13(11), but the breach in this context arose from a defined course of conduct and the approach of the ABS in respect to the investigation was to look at whether that particular course of conduct breached section 13(1), 13(11) or 13(10).

PN471

It wasn't a case where there were separate charges analogous to a criminal context, where it was necessary to determine whether there had been a breach of a particular portion of the code by reference to this behaviour and another breach of another section by reference to this behaviour. It was sufficient for the purposes of this case for the Commissioner to make a general finding that there was a breach of the code of conduct which he did.

PN472

He could indeed have been more specific in respect to which subsection of the code he found was breached and in my submission, given that there was a single course of conduct and that the important question was whether or not there had been a breach of the code, he's given sufficient reasons to avoid a miscarriage of justice. Having found the breach, the next logical step is to determine whether that breach warranted termination and that follows from the comment that the Commissioner made at paragraph 51 where he says:

PN473

Having accepted that charge, it's then a question of whether the punishment of termination fitted the crime. Was the breach a valid reason for termination?

PN474

And then he goes on to make a series of findings on the evidence which I would submit are quite clearly open to him. The first is that changing footy tips was not work related and this is at paragraph 54, then at paragraph 57 that footy tipping data is not important data from an ABS perspective. That was self evident.

PN475

JUSTICE GIUDICE: Are you going to deal with each of these propositions separately?

PN476

MR GRUEBER: I don't propose to take you any further than - - -

PN477

JUSTICE GIUDICE: In that event, could I just ask you about the conclusion in 54?

PN478

MR GRUEBER: Yes.

PN479

JUSTICE GIUDICE: As I understand it, the footy tipping system was run on the ABS internal email system, possibly on the web, using software which I must say doesn't appear to be the standard AFL software which suggests that it's something that might be ABS related, although there's no evidence about that, one can't say much about it. It's done during working time. Presumably that's permissible, putting in the tips during working time and it's obviously by the number of competitions that seem to be going, it was at least part of the social context in which people did their work with ABS. Why do you say that finding at 54 is justified?

PN480

MR GRUEBER: Mr Cunningham's evidence was that when he created the program for the tipping, he did that in his own time. He gave evidence about - - -

PN481

JUSTICE GIUDICE: What does that mean, incidentally?

PN482

MR GRUEBER: The creation of the program?

PN483

JUSTICE GIUDICE: No, no, in his own time.

PN484

MR GRUEBER: Well, outside his working hours.

PN485

JUSTICE GIUDICE: But he seems to have worked at weekends and that sort of thing. Is that regarded as - perhaps if I explain what I mean. In some workplaces there's a culture of working set hours, in others, particularly at a certain level, the concept of working hours doesn't have quite the same connotation. Barristers are in a similar situation, I suspect.

PN486

MR GRUEBER: Yes, I understand that, but in any workplace within the public service, you have a period of office hours.

PN487

JUSTICE GIUDICE: Yes, there would be official hours.

PN488

MR GRUEBER: And then certain people will go in after hours and do work outside those hours.

PN489

JUSTICE GIUDICE: Yes.

PN490

MR GRUEBER: But whether that's work related or not will be characterised by what's done outside those hours, so if I go into the office and read the newspaper, I wouldn't consider that reading of the newspaper a work related activity.
Mr Cunningham went in to collect some documents for his tax, for instance. That wasn't work related activity, so the creation was done in time that Mr Cunningham at least considered was his own and the tweaking of that and the ABS essentially is a large information gathering body.

PN491

The information that was gathered for the purposes of tipping, that is the tips, was not information that was used by the ABS for any purpose. It's essentially a social or a recreational activity for staff and I'd accept that it appears to have been if not fostered, at least accepted by the ABS, but that doesn't mean it's ABS work, if I can put it that way, in the same way that having a drink after work with your colleagues isn't work related.

PN492

JUSTICE GIUDICE: It might be.

PN493

MR GRUEBER: Well, it might be I would submit perhaps if you're talking about work, but if it's in a purely social context, I would submit it's not work related.

PN494

JUSTICE GIUDICE: It's saying nothing more than the footy tipping isn't the work of the ABS and one could readily accept that.

PN495

MR GRUEBER: Well, that's probably the best way to describe it and it follows on from that in my submission his finding that the footy tipping data is not important from an ABS perspective and at paragraph 57 on this occasion they had evidence from Mr Chubb at paragraph 56 in support of that. He goes on to say at paragraph 61 that he's formed the view that the manipulation of the footy tips which he finds did occur had not been demonstrated by the respondent, ABS, to have impacted on either the community or the government and there was no evidence that that was the case.

PN496

JUSTICE GIUDICE: What about the trust between colleagues within the ABS, would that have an impact?

PN497

MR GRUEBER: He doesn't refer to that in this context. He's dealing with the community or the government. In terms of the ABS hierarchy, if I can put it that way, I think the evidence and the approach that the ABS witnesses have taken would mean that there has been an effect.

PN498

JUSTICE GIUDICE: Yes, I wasn't really talking about the hierarchy. I meant the people, whoever they are, whoever are in the footy tipping competition.

PN499

MR GRUEBER: The only evidence that springs readily to mind in respect to that specific point, the witness statement of Mr Sweeney and Mr Churchill - - -

PN500

JUSTICE GIUDICE: Anyway, the Commissioner didn't make any finding, other than the ones that you've referred us to. Quite possibly, he wasn't asked to make any other finding.

PN501

MR GRUEBER: I think that's probably right.

PN502

JUSTICE GIUDICE: He was certainly asked to make a finding about the confidence of management, I guess, if you can put it that way, but perhaps not about the colleagues.

PN503

MR GRUEBER: There's the statement of Mr Sweeney, document number 28.

PN504

JUSTICE GIUDICE: Which page is that?

PN505

MR GRUEBER: It starts at 401 and on page 404 where Mr Sweeney says that in his opinion, footy tipping is a minor part of Mr Cunningham's role and it wouldn't affect his ability to carry out his ABS work and then the statement of Mr Churchill commences at 407 and the relevant paragraph is paragraph 11, page 408 where Mr Churchill expresses a view that the changes to the tips were pretty trivial in the scheme of things.

PN506

JUSTICE GIUDICE: Who expressed that view?

PN507

MR GRUEBER: That was Mr Keith Churchill.

PN508

JUSTICE GIUDICE: What position did he hold?

PN509

MR GRUEBER: APS level 6 according to paragraph 2 of his statement.

PN510

JUSTICE GIUDICE: Is level 6, that's the top of the non-executive level, is it?

PN511

MR GRUEBER: I don't know, your Honour. I would be happy for any assistance that someone else may provide me. It's below Mr Cunningham's level.

PN512

JUSTICE GIUDICE: Yes, thank you.

PN513

MR GRUEBER: And Mr Churchill sets out in paragraph 4 or refers in paragraph 4 to him being the back-up administrator for the Tasmanian footy tipping competition.

PN514

JUSTICE GIUDICE: I must say I find it interesting to say the least that the back-up administrator would say that people changing their tips in this fashion was not something significant. That might be greeted by the other participants in the competition with some dismay, mightn't it? I'm in several football tipping competitions, not with much success.

PN515

SENIOR DEPUTY PRESIDENT WATSON: I can endorse the president's remarks.

PN516

JUSTICE GIUDICE: He's also in some tipping competitions.

PN517

MR GRUEBER: He does clarify that to some degree in saying that - putting it in the context of making an error of judgment and these errors can be rectified and people move on, so it may be that Mr Churchill is a particularly forgiving person. The Commissioner at paragraph 42 makes a finding that no detailed personal or business information had been accessed, released or impacted upon in any way and there was no manipulation of ABS material or data relating to ABS operations.

PN518

JUSTICE GIUDICE: 62, I think.

PN519

MR GRUEBER: 62, that's correct, sir, and at 75, consistent with that, he makes a finding that there had been no manipulation of ABS data by Mr Cunningham and refers to him having a clean record. He then goes on, or perhaps if we can step back, in the context of those findings, he made a finding that Mr Cunningham was remorseful with regard to what had occurred.

PN520

This is paragraph 64. The advantage that Commissioner Eames had was his ability to observe Mr Cunningham while he was giving his evidence and he expressly refers to his observation of Mr Cunningham's demeanour in the witness box in the context of that finding. You've already been taken to the correspondence from Mr Cunningham to his superiors, G6 at page 285, G9 at 359 and G10 at 361 and I would submit that those documents have the Commissioner's observation that Mr Cunningham, it was sufficient for him to reach a conclusion that Mr Cunningham was remorseful.

PN521

So essentially the respondent's submission is that the approach taken by the Commissioner when looked at as a whole sufficiently exposes his reasoning to make it clear that he gave appropriate consideration to the reasons for the termination and whether in the context of those reasons the termination was harsh, unjust or unreasonable.

PN522

JUSTICE GIUDICE: Mr Grueber, can I ask you a question about the findings in 47 and 48, or I should say paragraphs 47 and 48? 47 sets out the letter to Ms Duff or at least part of it and when one gets down to paragraph 50, the Commissioner makes the finding you've referred to that there'd been an acknowledgment that he'd breached the code of conduct and so on. If you look at the first paragraph of the extract in paragraph 47, it finishes with the words:

PN523

My tips were not as I had intended on the Friday afternoon and I stupidly changed them, not realising the consequences.

PN524

Now, we've been taken to some evidence to support the proposition that that wasn't what he had done at all, that he had actually put in - at least on the later occasion, he had made changes after the results had been known firstly and secondly that he had also altered the points margin. Are you going to challenge that construction of events that - - -

PN525

MR GRUEBER: Mr Cunningham's evidence and he's been consistent throughout the case in respect to this is that his actions in changing the round 21 tips were to bring his tips into line with the final decision he made in respect to tipping for that weekend which was reflected in the Tatts tip ticket and his evidence was at some length in chief as to how he would formulate his tips, how he'd go out at lunch time and buy a newspaper and he would adjust his tips during the afternoon, so in my submission there's no inconsistency between that explanation and that paragraph in his letter to Ms Duff.

PN526

JUSTICE GIUDICE: I thought that the evidence that Mr Dube took us to indicated that there were three different competitions and, in fact, the tips weren't changed in a uniform way in the three competitions. Now, I may have got that wrong, but I thought that was the import of the evidence that he was referring us to.

PN527

MR GRUEBER: Can I just take a moment?

PN528

JUSTICE GIUDICE: Yes, of course. I may have misunderstood that.

PN529

MR GRUEBER: I've just clarified that point with my learned friend. At the end of the day, at the end of the changes, the tips in each of the competitions were identical, were the same, and that would be shown from the security documentation.

PN530

JUSTICE GIUDICE: Yes, I follow, so the tips as originally put in were different?

PN531

MR GRUEBER: They started off differently, but they ended up the same.

PN532

JUSTICE GIUDICE: I see.

PN533

MR GRUEBER: Consistent with the Tatts tip ticket.

PN534

JUSTICE GIUDICE: Yes, I follow. Well, that's the first point. The second point was the points margin.

PN535

MR GRUEBER: Yes, the points margin was changed and again Mr Cunningham's evidence was that he had a formula which he kept in his head as to how a points margin would be determined and having regard to that formula, although I don't recall the evidence specifically on this point, but the logical conclusion, or the logical step after changing a tip where there's a points margin would be to determine whether the points margin was appropriate for that tip and the change would flow.

PN536

A lot has been made about the fact that Mr Cunningham didn't disclose the change to the points margin when he disclosed the changes to the tipping on the Monday morning and in my submission there's not really much to be made by that. He's put his hand up essentially and said, look, I changed the tips. It's not surprising in my submission that he wouldn't have gone into specific detail about the entirety of the change. The fact that he's changed the tips is the issue and that he was required to change them back and agreed to change them back.

PN537

JUSTICE GIUDICE: Thank you. The other thing that I wanted to ask you about was paragraph 48 and the rejection of the inadvertent double right click theory or explanation. I'm not sure, but I think that refers to the round 19 changes.

PN538

MR GRUEBER: It did.

PN539

JUSTICE GIUDICE: But Mr Cunningham never conceded was something he remembered, but my question is where are we left if the explanation that's put forward is one that's rejected by the Commissioner?

PN540

MR GRUEBER: Well, there were two explanations given by Mr Cunningham and essentially you can draw a clear distinction between round 19 and round 21. Round 21, Mr Cunningham says I changed the tips and I disclosed the fact that I changed them. Round 19 was something that was brought to his attention as a consequence of the investigation.

PN541

Round 19 was a situation where there was a change which didn't give him a material advantage. He'd switched from a team that lost to a team that won, but in the context of moving from I think three out of eight winners to four out of eight winners, so it wasn't a case of him winning that round.

PN542

He consistent with him having somehow done it accidentally, he says that he doesn't have any recollection of how that came about and he gives two explanations about how it could have come about and one explanation is the right clicking mouse which the Commissioner has found he doesn't accept.

PN543

The second explanation was that he was running a test, that he had used for the purpose of that test his tips and that once he had completed the test, he had reinserted his tips incorrectly and Mr Cunningham's evidence for that is at paragraph number 116 to 122 and also at paragraph number 309.

PN544

JUSTICE GIUDICE: Wasn't the issue about what happened in round 19 a material issue in the case? It seems odd that there's really no positive finding about what happened, unless it's to be implied in paragraph 44, for example. It's the sort of thing one might expect there to be a finding about.

PN545

MR GRUEBER: It perhaps is a little surprising that there wasn't a direct finding in respect to that, but given the flow, if I can put it that way, of the Commissioner's decision, having found that there was a breach of the code of conduct, he satisfied himself that the first step had been completed and then went on to the next step, so although in retrospect it probably would have been preferable if there had been a finding in respect to that matter, given that there was some issue surrounding it, in the context of the entire case, it wouldn't lead to a different result.

PN546

JUSTICE GIUDICE: Yes.

PN547

MR GRUEBER: Perhaps if I can move to the issues surrounding findings of fact. Ground 3.1 of the appeal is that it's clear that the finding complained of is the finding at paragraph 50 of the Commissioner's decision where it's said:

PN548

It's clear that Mr Cunningham acknowledges that he'd breached the code of conduct by his actions in spite of his qualified evidence.

PN549

Again I go back to my proposition that the importance of this particular finding is not necessarily Mr Cunningham's acknowledge of the breach of the code of conduct, but the fact of there having been a breach of the code and notwithstanding the criticism that's been made in respect to Mr Cunningham's letter to Ms Duff of 9 November 2004, he's in a situation really where he's damned if he does and damned if he doesn't.

PN550

If he doesn't acknowledge a breach of the code and remorse, then he's damned for not understanding the consequences of his activities. If he does, then he's criticised for telling the ABS what it wants to hear. It's really a no win situation for him. What is clear I think from his evidence generally, particularly at paragraph number 341 is that Mr Cunningham acknowledged that what he had done was wrong and that flows through in respect to the second part of the third ground of appeal, that is the Commissioner's finding that he was satisfied that Mr Cunningham was remorseful with regard to what had occurred.

PN551

Under quite robust cross-examination at 341, Mr Cunningham acknowledges that what he did was wrong and that he knew that it was wrong and that he apologised for what he did. There's no evidence, direct objective evidence of a lack of remorse by Mr Cunningham. There's no evidence of any statement he made to any person that indicates that he had got away with it or that he had pulled the wool over anybody's eyes.

PN552

There was no subsequent activity along the same lines, that is in terms of use of data or misuse of data. The Commissioner was in a position where he was able to assess Mr Cunningham's demeanour while he was giving his evidence and in my submission there's sufficient there to ground a finding that Mr Cunningham was remorseful.

PN553

In respect to the third part of ground 3 which relates to data for the most part being protected by secure encryption keys of 128 bits in length, it probably doesn't really matter for the context of the case what the length of the encryption is. The issue really and this takes in part 4 of ground 3 is the broader issue of Mr Cunningham's ability to access and power to modify sensitive information.

PN554

Mr Cunningham gave evidence in respect to this at paragraph number 258 to 266. At paragraph number 258 he is asked what data he actually had access to in his position and his answer was that he had access to mainly administrative data and he goes on to say that he wasn't a statistical programmer if you like and wasn't working in statistical systems.

PN555

He's then asked whether he had access to embargoed or pre-embargoed ABS data and he talks about working on a system for the publishing section of ABS and then he's asked whether he could actually see that data and his evidence was that he couldn't see the encrypted data. He expands on that over the subsequent paragraphs and says at paragraph number 263 that unless he used an encryption key, he couldn't access that data.

PN556

He goes on at paragraph number 265 and 266 to describe the limitations to his access and particularly in respect to statistical information. Mr Chubb at paragraph number 1031 talks about attacking encrypted data and expresses the view that, as he says it:

PN557

It would be debatable whether Mr Cunningham would actually be able to get time and computing power to do that.

PN558

The implication is that in respect to encrypted data, it was safe from access by Mr Cunningham, except in circumstances where he was provided with the key to that access. There was Mr Chubb's subsequent evidence on recall, but that evidence needs to be looked at in the context of the evidence that Mr Cunningham's been given, the fact that the evidence that Mr Chubb gave on recall was quite clearly hearsay in nature, that is that in terms of this test to access data, he was relying on information that had been provided to him and in the absence of there being any particular detail as to the type of data that was accessed or how it was accessed.

PN559

There's also the consideration that I referred to in submissions concerning the admission of further evidence in that when dealing with Mr Cunningham's application to reopen his case to address the issues raised by Mr Chubb on his recall, the Commissioner essentially declined to allow the case to be reopened, but indicated that he would deal with the issue rather in terms of the weight that he would allocate to Mr Chubb's subsequent evidence and the only conclusion that can be drawn from the Commissioner's final conclusions is that he preferred Mr Cunningham's evidence.

PN560

As to the last part of ground 3, as to whether Mr Cunningham could have been demoted to a position where he didn't have administrator access to databases like an ordinary programmer in TSD, it's correct to say that there is no direct evidence on this point, but I would submit it's an implication that the Commissioner could draw in a general context.

PN561

If there are senior positions with administrator access, it almost flows as a logical necessity that there must be more junior positions without that degree of access and it's a reasonable inference to draw that Mr Cunningham could have been demoted to those positions. There was also Mr Cunningham's evidence at paragraph number 268 to paragraph number 272 that, to paraphrase it, Lotus Notes was being wound down and that it was likely that he would have to move away from that area where he had a particularly narrow area of expertise and to move from technical into more managerial work, that Lotus Notes would be phased out, that he would have to develop new skills and that evidence was essentially confirmed by Mr Chubb in his evidence at paragraph number 1030, although he talks about the difficulty of management in the context of moving Mr Cunningham more swiftly than might otherwise have been the case.

PN562

The Commissioner having heard the evidence which was quite comprehensive was required to exercise a discretion as to the seriousness of the nature of Mr Cunningham's conduct. In exercising that discretion, in my submission he clearly came to the view that while Mr Cunningham's actions amounted to a breach of code of conduct, that breach was relatively minor and this flows from his comments at paragraph 79 where having gone through the sanctions lesser than termination in paragraph 78, he refers to the appropriate sanction as being one at the lower end of the scale and certainly not termination and that accords with the evidence in the statements of Mr Sweeney and Mr Churchill that have already been referred to.

PN563

There was evidence from Mr Cunningham of his long period of employment at the ABS, almost 14 years at paragraph number 247. There was evidence that this was the only incident of inappropriate use of administrator access in his employment history during those almost 14 years. That's at paragraph number 248. There's evidence that this matter was the only issue that ever had been raised with him relating to his personal integrity in connection with his employment at paragraph number 249.

PN564

There was an absence of any evidence of damage to the reputation of the ABS, that is objective evidence. Mr Cunningham immediately raised changes, the fact that he'd made changes to tips with his colleagues. He didn't deny the fact that he had made the tips and he didn't take any steps, notwithstanding his technical capacities, to cover up the fact that the changes were made.

PN565

He was consistent in his reasons for making the changes and his explanations in the context of the Tatts tip ticket. He expressed contrition in writing to his employer and it would appear that the ABS didn't take into account
Mr Cunningham's personal circumstances in determining that the appropriate sanction was termination and in particular the difficulty that he would have in transferring his expertise to the private sector and the practical implications of losing his employment in his particular social context and family context and he gave evidence of that at paragraphs 242 to 244 and paragraph 246.

PN566

Essentially, the respondent's submission is that the Commissioner properly disclosed his reasons and adequately disclosed his reasons, that there was foundation for his findings of fact and in the event that there was circumstance where there was insufficient foundation for a finding of fact, taken as a whole, there was no miscarriage of justice and that the orders made by the Commissioner ought stand. May it please.

PN567

JUSTICE GIUDICE: Mr Grueber, can I just tax you again about the changes in the tips and the factual situation? I was asking you about it before and in particular the round 21 changes. I will see if I've got it right this time. At the end of the day, the evidence seems to be that there was a change or changes on the Saturday when Mr Cunningham was in the office. I'm not sure whether the evidence shows that the change reflected the result of the Friday night game or not, but one assumes it did because he got eight out of eight that week and then there was a change also made on the Sunday.

PN568

It's almost irresistible I think the inference that if there was a change, I think the evidence was taken to suggest that it was a change in the Saturday night result. Now, whether those changes were to bring the tips into line with the Tatts ticket or not, it does seem to be significant that changes were made in two lots if that's the case and that they resulted in a perfect forecast for that round.

PN569

MR GRUEBER: Yes.

PN570

JUSTICE GIUDICE: Have I got the facts right?

PN571

MR GRUEBER: There were certainly changes made on the Saturday and logically they must have been made after the Friday night game had been played. There's no evidence - well, I stand to be corrected, but my understanding is that there's no evidence that there was a change to the Friday night game. In any event, presumably Mr Cunningham would have known the result of that Friday night game and wouldn't have changed it if he'd picked a winner in the first case, so long as it accorded with his Tatts ticket which it must have done if it was the case that he'd picked eight out of eight on the Tatts ticket.

PN572

The evidence in respect to there being a change on Sunday, Mr Cunningham didn't at any stage accept that he'd made a change on the Sunday. The security records indicate the changes were made by checking the backups if I could put it that way of each day in the context of - I think my learned junior was criticised for using the term photograph, but essentially a picture of what the situation was on those particular days, but there was quite a deal of evidence in cross-examination particularly in respect to the consequences of replication and that is that
Mr Cunningham's computer was set up - I struggle to explain this technically appropriately and I apologise for that, but essentially every half hour it would write the data to the - - -

PN573

JUSTICE GIUDICE: Backup.

PN574

MR GRUEBER: The backup. Now, when he went in to work on the Saturday, he was there for a period which was approximately 15 minutes and if he had not had his computer running for half an hour which he couldn't have done if he was only in there for 15 minutes, there could well be the possibility that the replication didn't occur on the Saturday, but occurred subsequently on the Sunday, such that even though he made the changes on the Saturday, it would appear through the investigation that the changes were made on the Sunday because that's when he went in, turned his computer on, on the Sunday, that's when the replication would have happened, but I can certainly assert that Mr Cunningham never accepted that he made a change on the Sunday.

PN575

JUSTICE GIUDICE: I see, and does it follow from that that in your submission there's no direct evidence that Mr Cunningham ever altered a tip to accord with a result which had already eventuated?

PN576

MR GRUEBER: No, there's certainly no direct evidence that that's what he did.

PN577

JUSTICE GIUDICE: Well, there doesn't seem to be any finding that he did, either.

PN578

MR GRUEBER: No. No, there isn't. Consistently from the start, he's said I changed the tips to accord with my final tips as reflected in the Tipstar ticket. That leaves open the possibility of what would have occurred had he picked none out of eight in the Tipstar ticket. That's not an issue we have to deal with.

PN579

JUSTICE GIUDICE: Thanks, Mr Grueber. Mr Dube.

PN580

MR DUBE: Thank you, your Honour. I've probably said enough today, but I'll say a little bit more. Appeal book page 580 may assist your Honour in going through this issue of the changes. This is, your Honour, the statement from Ms Watson when she did an analysis of the various logs and changes and so forth. That sets out, your Honour, firstly paragraph 6, the result and the time of the games being played.

PN581

I think the Commission took judicial notice that approximately two hours after the game started there would be a result known. If we look then at the Victorian rules changes, your Honour will see that a change was made of Melbourne by a margin of two to Carlton by a margin of three at 5.32 on the Saturday and your Honour will see that Carlton played Melbourne at 2.10 o the Saturday afternoon, so that by that stage the result of that game would have been known.

PN582

The one which is more obvious, your Honour, is Port Adelaide played Collingwood on the Friday night and you'll see at paragraph 13 of Ms Watson's statement that Collingwood was changed to Port Adelaide at 5.32 on the Saturday. Now, the change back at 9.21 on the Monday we understand is following the discussion with Mr Sweeney that he put his tips back to how they were.

PN583

Your Honour, the next game which we would say was changed after the results were known was the Kangaroos by two goals. This is in the Victorian rules competition, was changed on Sunday, 22 August, and they played on I understand Saturday night. Just in terms of looking at that issue, the evidence which was led by the Bureau on this issue of replication which my friend has just taken you to as to logging on and replications back to the database not being done for 30 minutes so that if a change was made on the Saturday afternoon, if he logged off within 30 minutes as we were shown up until Saturday, at appeal book page 146 there was evidence given by Mr Nick Vanhook who was called to give evidence on the way the system works in terms of replication and the details of the logs and the first point would be paragraph number 1177, Mr Vanhook said that as soon as someone logs back on, automatic replication would take place.

PN584

The next point that was put to Mr Vanhook is at paragraph number 1193 and Mr Cunningham's explanation, the one explanation that was put to why the game wasn't changed on Sunday was that this issue of, well, I'm only set up to replicate every 30 minutes, I put my tip in on Saturday afternoon before the game was played, but because I was in and out in 15 minutes, it didn't show up until Sunday.

PN585

Now, your Honour, there were other changes made on that Saturday afternoon and the evidence is that they showed up on the backup on Saturday night, so the changes made as you'll see in Ms Watson's statement at page 580, the changes that were made at 5.32 on Saturday to Melbourne and Carlton and Adelaide and Geelong and also the Collingwood to Port Adelaide, they all showed up on the Saturday night backup, yet the change Mr Cunningham says he also made to the Kangaroos being beaten by the Western Bulldogs didn't show up on the Saturday night backup and Mr Vanhook at appeal book page 147 was asked, over the page at 148:

PN586

Could only a portion of the tipping database be replicated?

PN587

And he said:

PN588

That wouldn't happen.

PN589

So I asked him, I said:

PN590

If you were to be asked is it more likely than not that a Kangaroos game is changed on the Sunday, what would you say?

PN591

He said:

PN592

I'd say it would have to be the Saturday replication happens around 7 pm, so that's the backup of what's on the database. If you look at the revision made between the Saturday and the Monday backup, the only time stamp that's within that time frame is on 22 August at 5.14.

PN593

So we would say there was very conclusive evidence before the Commissioner that the game, the particular game of the Western Bulldogs and the Kangaroos was changed on the Sunday after the game had been played on the Saturday night. The only other point, your Honour, I would make in respect to this whole concept of what was changed and the Tattersall's ticket being the guide to how the formula was put together, I understood my learned friend to say earlier that changing the margins was a follow-on from changing the games themselves because of the way Mr Cunningham apparently puts his formula together is depending on which team you're going to pick and where they're playing, then you might have a different formula.

PN594

The paragraph of Ms Watson's statement is the change of the Adelaide/Geelong game. That result in terms of he didn't change who he tipped, he simply changed the margin and he changed the margin to get himself a better result, being Adelaide had won you see by 22 points and he had originally tipped them to win by one goal and he increased that to two goals. On that issue of changing margins, Mr Sweeney said in evidence in chief to the Commission, this is at appeal book page 103, firstly he said:

PN595

I can't see any reason why someone would change their tips because everyone would find it out.

PN596

And then he goes on to say:

PN597

I could understand if he'd actually changed margins because their competition, this is Victorian rules, runs on margins. The easiest way to cheat in their competition is not to change teams, because they stand out the same way, but to change margins, because unless you have a plan of the actual database, you would still see eight teams up along the piece of paper and if you didn't change any of the teams, you're not going to actually open up a document to find out what his points margins are, so if he really wanted to cheat, he would have gone in and changed the points margins, such as they were closer to the real result and he'd get more for it.

PN598

The other margin which was changed was in round 19 where Port Adelaide defeated Melbourne by 73 points. Mr Cunningham changed his margin from winning by three goals to the margin of seven goals and without taking the Commission to his evidence, he essentially said in cross-examination that he would have Commissioner Eames believe that that was a lucky coincidence, that every change he made in round 19 resulted in him getting a better result.

PN599

JUSTICE GIUDICE: Was there any evidence about whether, with the administrator access, it was possible to see what margins other tipsters had gone for?

PN600

MR DUBE: I don't know the answer to that.

PN601

JUSTICE GIUDICE: I'd assume there wasn't.

PN602

MR DUBE: With the administrator access, you can go into anyone's tips, so
Mr Cunningham as an administrator of the database could have gone into, assuming I was the tipper, he could have gone in and looked at my tips, including the margins, and changed any of those.

PN603

JUSTICE GIUDICE: Or he could have hypothetically put in a margin which was sufficient to be the closest.

PN604

MR DUBE: Yes. Your Honour, the only other point I would make is in respect of this issue of Mr Churchill's statement at appeal book page 408 and I took your Honour earlier to the fact that Mr Churchill wasn't aware of whether the tips were changed or his understanding was that the tips were changed prior to the beginning of the games. Commissioner Eames to Mr Churchill at appeal book page 112, this is paragraph 874 and 875, the Commissioner said:

PN605

Just one question. If you'd known the tips had been changed after the results were known or some of them, would that have changed your view about all of this? At the time, I mean on the Monday morning.

PN606

So this is when the discussion was between Mr Cunningham and Mr Churchill and Mr Churchill's answer was:

PN607

It's possible. It's a different issue.

PN608

Commissioner Eames said:

PN609

Would you see that as a more serious issue than changing it before the game started?

PN610

And he said:

PN611

I would need to think that through, but, yes, prima facie, yes.

PN612

Your Honour, that would be the only issues I would seek to say in reply unless you have any further questions.

PN613

JUSTICE GIUDICE: Yes, thank you. Thanks very much for your submissions, gentlemen. It won't be possible for us to give a decision today. We would like to consider what has been put, so it will be necessary to reserve our decision and we will announce it as soon as we can. We will adjourn now.

<ADJOURNED INDEFINITELY [3.46PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 APPLICANT'S SUBMISSIONS DATED 14/07/2005 UNDER THE HAND OF K BENNETT FOR THE AUSTRALIAN GOVERNMENT SOLICITOR PN459
EXHIBIT #R1 RESPONDENT'S SUBMISSIONS DATED 11/08/2005 PN464