Atkins v North Australian Aboriginal Justice Agency Ltd - [2024] FCA 686 - FCA 2024 case summary — Zoe

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Atkins v North Australian Aboriginal Justice Agency Ltd

[2024] FCA 686

Federal Court of Australia|2024-06-27|Before: Agency Ltd J, Charlesworth J

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Source facts

Court

Federal Court of Australia

Decision date

2024-06-27

Before

Agency Ltd J, Charlesworth J

Source

Original judgment source is linked above.

Judgment (78 paragraphs)

[1]

These proceedings threatened 135 Ms Atkins' lawyer later wrote to Mr Kellock on 14 February 2023 complaining about the manner in which the allegations had evolved and asking for a further week in which to respond. Ms Atkins also requested that NAAJA undertake not to terminate her employment and sought a response to that request by 16 February 2023. She said that in the event that no undertaking was agreed she reserved the right to commence proceedings, and to seek urgent relief, without further notice. 136 The extension request was refused, as was the request for the undertakings. In his response, Mr Kellock said that Ms Atkins "has been given ample procedural fairness; indeed more than could reasonably be expected in the circumstances". 137 By a further letter sent on the following day, Ms Atkins's lawyer repeated the request for undertakings, specifically in the following terms: 1. NAAJA will not finalise its investigation into any of the allegations contained in the stand down allegations letter, the principal allegations letter (as amended by the amended allegations letter) until it has considered our client's response to those allegations and any other matter that she wishes to raise (see opportunity (ii) of the principal allegations letter). 2. NAAJA will extend the time for that response until Friday 24 February 2023, or such later time as may be agreed between NAAJA and our client which agreement shall not unreasonably be withheld. 3. NAAJA will not terminate our client's employment (or take any other disciplinary step against our client) until it has afforded our client the opportunity to show cause (opportunity (iii) of the principal allegations letter) in response to, and on the basis of, those allegations it finds are substantiated once the investigation is finalised having completed steps 1 and 2 above. 4. If following step 3 above, NAAJA decides to terminate our client's employment (or take any other disciplinary step against our client) it will give our client 72 hours' notice of its decision to do so. 138 That letter went on to state: Please advise whether your client is prepared to provide an undertaking in the terms we have requested by no later than 12 pm on Thursday 16 February 2023. In the event your client does not agree, or we do not receive a response by this time, our client reserves the right to commence proceedings, and to seek urgent relief, without further notice and to rely upon this correspondence should it do so. Our client otherwise reserves her rights. (emphasis in original)

[2]

Ms Atkins responds to the allegations 139 Ms Atkins gave a partial response to the some of the allegations by letter from her lawyer to Mr Kellock dated 17 February 2023. She reiterated that she required more time to complete her response, including because she was obtaining information from two former CFO's of NAAJA (Mr Morris and Mr Rossingh) and because she had an outstanding request to access NAAJA's systems to obtain documents relevant to her response. The cover letter assumes some significance in what follows and so is extracted here in full: We refer to the letters from Colleen Rosas on behalf of NAAJA to our client dated 28 November 2022 and 19 January 2023 and your letter to us of 3 February 2023. There have been three iterations of allegations raised against our client. We note that the first iteration of allegations raised against our client on 28 November 2022 - which contained the extremely serious allegation that our client had, without authority, applied or affixed Ms Rosas' electronic signature to a letter dated 29 June 2020 - has been abandoned by your client. This has occurred notwithstanding that this first iteration of allegations was the basis upon which our client was suspended from work, and was the sole identified subject of the investigation first notified to our client in Ms Rosas' letter to our client 28 November 2022. Notwithstanding the shambolic process adopted by your client to date, our client has been able to provide a partial response to the current iteration of allegations annexed to your letter to us of 3 February 2023. The partial response prepared by our client is attached and marked 'Attachment A'. As we have explained to you already in our correspondence dated 14 and 15 February 2023, our client requires further time to prepare a complete response to the Allegations, having regard the historical nature of the allegations against her and the extended time period to which they relate. Further, she can only be in a position to show cause why her employment should not be terminated, in accordance Ms Rosas' letter to our client on 19 January 2023, once she has a complete response to the Allegations. She will provide her complete response to the Allegations, and a response to the invitation to show cause why her employment should not be terminated, by Friday 24 January 2023. In particular, we note that she intends to rely on material and information provided by two previous Chief Financial Officers of NAAJA, Noel Morris and Stephen Rossingh. We have only recently been able to establish contact with them and require time to complete gathering material and information from them. Given that the current iteration of allegations annexed to your letter to us of 3 February 2023 primarily relate to matters of alleged financial mismanagement or misconduct occurring when Mr Morris or Mr Rossingh was the CFO of NAAJA (or, in Mr Rossing's [sic] case, the Independent Chairperson of the Finance and Audit Risk Committee), the material and information they can provide is extremely probative and possibly determinative of one or more of the allegations raised. Further, our client reserves the right to provide further particulars upon receipt of the additional material previously requested, including access to the NAAJA IT system. Our client reiterates that she requires such access in order to locate such relevant documents as may still exist, and to have a genuine and meaningful opportunity to respond to the current iteration of the allegations. (emphasis in original) 140 Ms Atkins provided documents in support of the partial response, some of which had earlier been provided to Mr Taziwa. They are discussed elsewhere in these reasons.

[4]

20 February meeting 145 On 20 February 2023 at about 4.30pm there was a telephone meeting with Mr Kellock (and two other lawyers from King & Wood Mallesons) to discuss Ms Atkins' response to the allegations (February Meeting). Those in attendance included Ms Rosas, Ms Ellis, Mr Espie (then appointed as NAAJA's Principal Legal Officer), Ms Evans, Mr Taziwa and Ms Rena Stanton and Ms Moore. 146 Ms Stanton was referred to in evidence as an administrative officer responsible for taking minutes of NAJAA's meetings, although no minutes emanating from NAJAA were admitted in evidence in connection with the February Meeting. 147 A file note of the meeting was taken by a person employed by NAAJA's lawyers. The typewritten note contains a statement that it was prepared by Ms Sarah Tyrrell and that it was not and should not be regarded as a verbatim record of the telephone call. 148 The document was admitted in evidence as a record that accorded with Ms Rosas' recollection of events. I do not consider that to be a wholly reliable or complete record as to what occurred for reasons I will later explain. 149 The notes record events to the following effect: (1) Ms Rosas referred to Ms Atkins' response as "straight out lies" and said that "so many things … are absolutely fabricated". (2) Mr Kellock said "Is that a unanimous decision of the Board?" (3) Ms Rosas said "Yes, a majority of the Board - the ones we have been able to speak to all agreed. The Board agreed at our last board meeting on 12 and 30 [sic] January to terminate her when we didn't get any responses. We can get the minutes for that. No one knows [sic] anything about the other 8 vehicles until we got the report from [Mr Taziwa]". (4) Mr Espie queried whether it was necessary for the Board to be reconvened. (5) Ms Ellis responded "[t]he Board have agreed". (6) Mr Espie asked whether an "updated decision" was needed. (7) Ms Rosas responded "[n]o". (8) The content of a letter giving notice of the termination was discussed. Ms Rosas confirmed that she would sign the letter that day, return it to Mr Kellock, and then send it to the Board. (9) Mr Kellock said: Thank you for giving me that instruction. I now need to tell you something, that will not surprise you. I am glad you told me you've made that decision, and we can execute it today. [Ms Atkins] has instituted Federal Court proceedings late this afternoon against The NAAJA. Basically, it's an adverse action claim. As part of those proceedings, she has sought an urgent interlocutory injunction to make any decision to terminate. I didn't want to tell you about that until I heard from you what you wanted to do - but you were clear that you had decided to terminate already, so we should proceed down that path. That interlocutory application will disappear now that you have made the decision to terminate. Does that make sense?

[9]

Adverse actions 156 Ms Atkins relies on five actions each of which is alleged to fall within the definition of "adverse action" in s 342 of the FW Act. I will refer to them by the same definitions employed in the pleadings (omitting the word "adverse" in connection with them). 157 The Suspension Action comprises action taken by NAAJA against Ms Atkins in: (1) suspending Ms Atkins from the duties of her employment; (2) alleging that she had engaged in impropriety in connection with the application of Ms Rosas' signature on the Contract Extension Letter; (3) directing that she not attend for or perform work; and (4) informing her that her access to NAAJA's IT systems had been suspended. 158 NAAJA admits that the Suspension Action was "adverse" because it prejudicially altered Ms Atkins position in her employment by making her employment less secure, denied her access to the workplace and the benefits of that access, preventing her from performing the duties of the employment and exercising her skills and responsibilities as CEO, humiliating her and subjecting her to distress and psychological injury: 2ASOC, [20]; FAD, [20]. NAAJA denies that doing those things had the additional consequence of subjecting Ms Atkins to treatment that was substantially different to the way in which she was ordinarily treated in the employment: 2ASOC, [19]; FAD, [19]. I do not understand the basis for that denial. The factual consequences of the action were seismic shifts in the manner in which Ms Atkins had previously been treated in her employment. She had not ordinarily been subjected to allegations having no proper basis (as to which see below), nor had she been shut out of her workplace, prevented from doing her duties or prevented from accessing NAJAA's IT systems. I am satisfied that the Suspension Action can be characterised in the additional manner pleaded and so fall within the alternate limb of the definition. 159 Ms Atkins further alleges that the Suspension Action was an adverse action for the additional reason that it discriminated adversely between NAAJA employees, namely between her and Ms Evans: 2ASOC, [21]; FAD, [21]. That disputed issue is resolved elsewhere in these reasons. 160 The Review Action comprises NAAJA's conduct in engaging BDO "to discover evidence" about whether Ms Atkins had engaged in irregular, inappropriate or criminal activity: 2ASOC, [28A(a)]. There are disputes as to whether NAAJA took the Review Action other than in good faith and on a proper basis and thereby injured Ms Atkins in her employment and as to whether, in taking the Review Action, NAAJA discriminated between Ms Atkins and Ms Evans: 2ASOC, [28B], [28D]; FAD, [28B], [28D]. 161 The Review Reliance Action comprises NAAJA's conduct in adopting the conclusions, opinions or recommendations in the BDO Report in deciding (whether by valid resolution or otherwise) to terminate Ms Atkins' employment and reporting her to the police. NAAJA admits that the Review Reliance Action altered Ms Atkins' position in the employment to her prejudice: 2ASOC, [28E]; FAD, [28E]. There is a dispute as to whether the action was adverse for the additional reason that it discriminated between Ms Atkins and Ms Evans: 2ASOC, [28D]; FAD, [28D]. 162 The Misconduct Action comprises NAAJA's conduct in sending the Allegations Letter to Ms Atkins on 19 January 2023. There is a dispute as to whether the conduct was adverse in that it injured Ms Atkins in the employment, and as to whether it altered her position in the employment to her prejudice, or involved a threat to do so: 2ASOC, [25], [26]; FAD, [25], [26]. 163 As mentioned earlier in these reasons, there is a dispute as to whether NAAJA has terminated the employment relationship. Ms Atkins' written closing submissions make repeated reference to there being an onus on NAAJA to prove that the termination of the employment relationship was legally effective. I do not accept that submission. The onus of proof in all respects is on Ms Atkins, except to the extent that s 361 of the FW Act provides otherwise. Section 361 does not operate to reverse any onus of proof concerning proof of whether an action was taken or proof that the action was adverse. 164 The case alleging a contravention of s 340 of the FW Act proceeds on alternate basis that Ms Atkins has either been purportedly dismissed or actually dismissed, each scenario alleged to involve an adverse action. The relevant action is NAAJA's conduct in sending the Termination Letter to Ms Atkins on 20 February 2023 following the February Meeting. It is convenient to refer to that conduct as the Dismissal Action irrespective of whether the employment relationship has been validly terminated. NAAJA's position is that the employment relationship was terminated and it is on that basis that it admits that the action was adverse: 2ASOC, [32]; FAD, [32]. It disputes that a purported dismissal could constitute an adverse action. It is necessary to resolve that dispute because the assessment of any remedy will depend in part on a proper identification of the manner and extent to which Ms Atkins has been prejudiced in her employment. 165 If there has been a purported dismissal, I would have no difficulty concluding that the conduct of an employer in purporting to dismiss an employee is adverse action for the reasons alleged by Ms Atkins (at 2ASOC, [31]), specifically because it made her employment less secure (by denying the existence of the employment relationship) and because it deprived Ms Atkins of the opportunity for the Board to consider her response to the Allegations Letter (as later revised). 166 The several aspects of the dispute about whether there has been a dismissal or purported dismissal will be summarised in Part 9 below.

[10]

NAAJA's reasons for taking the actions 167 The starting presumption is that the adverse actions were taken because of the reasons alleged by Ms Atkins in the 2ASOC. The allegations (and hence the presumptions) are that the: (1) Suspension Action, Review Action, Review Reliance Action, and the Misconduct Action were each taken because Ms Atkins had exercised the Complaint Right: 2ASOC, [22], [27], [28F]; and (2) Dismissal Action was taken because Ms Atkins had exercised the Complaint Right, or because she had exercised (or had proposed to exercise) the Proceedings Right, or in order to prevent Ms Atkins from exercising the Proceedings Right: 2ASOC, [33]. 168 Section 361 of the FW Act operates to supply the factual findings as to NAAJA's reasons for taking each action: the presumed reasons are contravening reasons. Proof of those matters by Ms Atkins is not necessary. It is enough that she has pleaded that the actions were taken because she exercised one or more of the workplace rights. The issue to be determined in this aspect of the case is whether NAAJA has established, to the requisite standard, that the adverse actions were not taken for reasons that included the pleaded prohibited reasons. NAAJA must positively establish those matters in order to displace each of the presumptions that must otherwise operate. 169 NAAJA's pleaded case is that the: (1) Suspension Action was taken to facilitate an investigation into the validity of Ms Rosas' signature on the Contract Extension letter: FAD, [22]; (2) Review Action was taken because of concerns of directors as to the "inconclusive findings" of the Ward IT Report and as to whether Ms Atkins had engaged in (or was engaging in) conduct that breached standards of corporate governance which risked bringing NAAJA's reputation into disrepute: FAD, [28F]; and (3) Misconduct Action, Review Reliance Action and the Dismissal Action were taken "because of the BDO Findings": FAD, [28F], [33]. 170 There are additional disputes concerning the status of Mr Taziwa as an agent of NAAJA acting within the scope of his actual or apparent authority within the meaning of s 793(1)(a) of the FW Act giving rise to a question of whether his conduct and accompanying state of mind can be attributed to NAAJA: AR, [11]. A similar plea is raised in connection with the status, conduct and state of mind of NAAJA's lawyer, Mr Kellock: AR, [14].

[11]

Claimed relief 171 Ms Atkins alleges that she has suffered loss and damage in the form of lost income, distress, anxiety, shock, humiliation, damage to her professional reputation, psychiatric injury, loss of earning capacity and medical expenses. 172 The relief sought on her Third Amended Originating Application filed on 27 September 2023 includes: (1) several declarations of contravention; (2) an order restraining NAAJA from taking any further steps to act upon the investigations into alleged misconduct by Ms Atkins, and from preventing her from performing her duties as CEO; (3) an order restraining NAAJA from terminating Ms Atkins' employment or taking other action by reason of any misconduct alleged against her or, alternatively, an order that Ms Atkins be reinstated and treated as though she had been continuously employed; and (4) orders for compensation and the imposition of penalties (made payable to Ms Atkins) pursuant to ss 546(1), 546(2)(b) and 546(3)(c) of the FW Act in respect of proven contraventions. 173 Beneath the broadly stated pleaded disputes is a multitude of factual contests, some of which are unnecessary to decide. Before turning to summarise the witness testimony I consider it convenient at this juncture to make findings about two subject matters that form part of the objective background against which the disputes on the pleadings will be assessed. They relate to Ms Atkins' participation in a scheme for the purchase of vehicles (a topic referred to in the BDO Report, the Allegations Letter and the Updated Allegations Letter) and the approval of Ms Atkins' salary in the period following 2017. The findings set out in later sections of my reasons have been reached following my assessment of the evidence as a whole, including the witness testimony. It is borne in mind that my assessment of the witnesses is to remain focussed on whether they in fact had the states of mind alleged in their testimony, which includes an assessment as to whether their beliefs about the existence or non-existence of fact are bona fide. A belief may be bona fide, even if it be objectively wrong. But that does not render the background objective facts irrelevant. In the present case they assume some forensic significance for reasons that will be explained.

[12]

PART 5: TRIAL 174 The trial proceeded over eight days in Darwin and Adelaide. The evidence included the SOAF and the documents attached to it, two books of documents and the affidavits or statements of 19 witnesses, 15 of whom were cross-examined. 175 For the most part, evidence-in-chief at the trial was adduced by affidavit or by witnesses adopting the truth of written statements. 176 The SOAF is read into evidence for the purposes of s 191 of the Evidence Act 1995 (Cth). No party gave notice of any challenge to the authenticity of any document. 177 The following materials were read on Ms Atkins' case (subject to the exclusion of some parts of them, and rulings as to the use of other parts): (1) affidavits of Ms Atkins affirmed 4 August 2023 and 27 September 2023; (2) affidavit of Ms Kate Barter affirmed 4 August 2023; (3) affidavits of Mr Santhiraruban Sivasubramaniam affirmed 7 August 2023 and 6 October 2023; (4) affidavit of Ms Moore sworn 30 August 2023; (5) affidavit of Ms Nicole Suzanne Dunn affirmed 27 September 2023; (6) affidavit of Mr Morris affirmed 28 September 2023; (7) witness statement of Carol Smith adopted in evidence on 25 October 2023; (8) witness statement of Marilyn Smith adopted in evidence on 25 October 2023; and (9) parts of affidavits of Ms Rosas not read on NAAJA's case. 178 In addition, upon learning that he would not be called to give evidence on NAAJA's case, Ms Atkins read two paragraphs of the affidavit of Mr Espie affirmed 4 September 2023. 179 The Court read the following material on NAAJA's case, against subject rulings on admissibility and use: (1) affidavit of Ms Rosas sworn on 8 September 2023 (which on its terms refers to and relies upon an earlier affidavit of 9 March 2023); (2) affidavit of Ms Ellis sworn 8 September 2023; (3) affidavit of Ms Garlett affirmed 8 September 2023; (4) affidavit of Ms Taylor sworn 31 August 2023; (5) witness statement of Ms Assan dated 30 October 2023; (6) witness statement of Ms Maymuru dated 30 October 2023; (7) affidavit of May Rosas affirmed 8 September 2023; (8) affidavit of Mr Woodbury affirmed 5 September 2023; (9) affidavit of Ms Shannon sworn 7 September 2023: (10) witness statement of Mr McLennan (undated); and (11) affidavit of Mr Hill sworn 7 September 2023.

[14]

The Terms 182 The "Priority" items set out in the Terms are as follows: Priority: 1. Was the Chief Executive Officer's work credit card used in accordance of NAAJA's Financial Management Framework, a. ie; work related purposes only, if not, identify and list what transactions, including costs were outside of Financial Management Framework Policy: 2. list the number of contracts and funding agreements that NAAJA entered into and identify if any of these contracts and agreements were used outside of NAAJA Managing Contracts and Funding Agreement Policy? a. ie; any misused/discrepancies/illegal/unethical approvals outside NAAJA's Policy. 3. The use of NAAJA funds/funding agreement for the private purchase of 4 senior staff personal vehicles or expenditure through the salary sacrifice process. a. ie; who authorised these purchases and was the authorisation within the Financial Management Framework Policy. 183 Under the heading "Medium" there appears a list of disparate issues going to the question of whether Ms Atkins had acted without the necessary approvals from the Board in a variety of subject matters, or otherwise acted unethically. BDO was directed to identify who had authorised certain benefits such as travel allowances, a vehicle allowance or working from home arrangements. There is a question about whether there had been proper approvals of staff long service leave arrangements. There is then an allusion to nepotism against Ms Atkins without any specific allegation, coupled with a request that BDO review whether she had complied with recruitment processes. There are "concerns of transparency" raised about a commercial relationship for the provision of training and mentoring for employees, including a question about whether those arrangements involved a conflict of interest. That topic includes a reference to the Board seeking confirmation on questions it wanted investigated. There is then a question about whether Ms Atkins had engaged in "unethical practice" by first opposing but then supporting a proposal for the appointment of a Deputy CEO. 184 The issue relating to Ms Rosa's signature on the Contract Extension Letter is raised in the Terms as the second last "Medium" priority item. The scope of BDO's work on that topic was limited to the following: Audit all relevant documentation related to the Chief Executive Officer and other employees contracts commencing 1 July 2017 and their entitlements: • The Board would like a review into the following dot points: • The Chief Executive Officer's contract extension and Chairperson's signature on a Letter dated in July 2020. • Need access to the Renumeration Committee Minutes • Who authorised the Salaries/Levels of employees outside the Enterprise Bargaining Agreement. • The Board Chairperson is meant to sign off on the Chief Executive Officer's credit card reconciliations each month and these reports were meant to be table [sic] at Audit and Finance Risk Committee - would like to view detailed transactions of the monthly reconciliations? In the Chief Executive Officer's Contract, what other entitlements is the position entitled to receive.

[15]

Content of the BDO Report 185 The BDO Report contains "factual findings" to the effect that from 2010 "management" established an in-house "Novated Lease" structure which allowed for staff to acquire motor vehicles funded by NAAJA, which had not been approved by the Board. It states that the arrangement did not meet the description of a novated lease but was in fact in the nature of a personal loan facility. It states that the arrangement was not cost neutral to NAAJA because no administration fees had been charged and there was a "lost opportunity" cost in the provision of the finance. 186 The BDO Report describes the scheme as involving repayment of a personal loan by way of monthly salary deductions. It states that a review of the "Financial Management Framework" and employee contract documents "did not indicate that this was a permissible arrangement" or that the Board had approved it. 187 The BDO Report identified that Ms Atkins had purchased nine vehicles using the scheme between September 2010 and August 2014 with a total value of $346,907.00 described in a table identifying each vehicle, including a Range Rover Sport purchased in August 2014. The BDO Report goes on to state: We could not establish, through documentation provided, as to whether this arrangement was approved by the Board considering that NAAJA was acting a [sic] finance provider. Clause 15 of the Financial Management Framework stipulates the following in relation to loans: 'All Mortgages, loans, notes, and other indebtedness contracted in the name of NAAJA (other than a routine supplier or vendor credit applications, leases or item of an administrative nature required for general operations) shall require the approval and authority of the Board of Directors.' In addition, we could not establish, through documentation provided, as to whether the individual vehicle purchases were approved by the Board, especially considering that the August 2014 transaction had a value of $118,841. According to the Financial Management Framework, the CEO has an upper purchasing and payment limit of up to and including $100,000. Any transaction exceeding this threshold would have required Board authorisation. 188 There is no reference in the BDO Report to the Board having considered the operation of the scheme and examining its Fringe Benefit Tax (FBT) implications in 2015, nor of the Board approving amounts for each employee to pay, nor of the arrangements identified by Mr Rossingh for the payments to be made by Ms Atkins upon the cessation of the scheme. The BDO Report contains no reference to a 2015 memo (discussed below) and no reference to the Board minutes in which that memo was considered and acted upon. 189 The BDO Report goes on to discuss "repayments" of the personal loan that Ms Atkins had made in 2015. It contains "findings" that in order to make some of that payment, Ms Atkins had "cashed" out significantly more annual leave hours that were then owing to her. It states that BDO was unable to establish whether the annual leave encashment was approved by the Board "in the absence of any guidance from the available documents at the time when the transaction took place". 190 There is a separate "finding" to the effect that in June 2014, Ms Atkins had cashed out her accrued long leave entitlement, before she had served 10 years employment. That was described as a transaction involving illegality. 191 The BDO Report stated without qualification that "the corporate credit card" had been used for personal transactions" and that it had been used for vehicle expenses in circumstances where Ms Atkins had been paid a vehicle allowance. Details of those transactions were provided in annexures to the report. In and of itself the BDO Report does not explain why the expenses listed in the annexures were assumed to be "personal" in nature nor does it explain why the vehicle expenses were assumed to relate to Ms Atkins' personal vehicle. Of themselves, the descriptions in the annexures provide scant information upon which those assumptions could be based. On their face some of the descriptions of personal expenditure relate to accommodation and flights referrable to the names of other NAAJA employees mentioned in the evidence. The "personal" expenditure is said in the BDO Report to involve 61 transactions totalling $20,658.00. 192 The BDO Report contained no information in relation to the signature allegation, notwithstanding that the Terms had sought a review of "The Chief Executive Officer's contract extension and Chairperson's signature on a Letter dated in July 2020".

[16]

Content of the Allegations Letter and the Updated Allegations Letter 193 There are eight allegations contained in the Allegations Letter, expressed as follows: Allegation 1 1. Without Board approval, you recklessly and/or wrongfully, entered into leases for a total of nine vehicles via the NAAJA novated lease arrangement, as set out in Attachment 2, which contravened clause 15 of the Financial Management Policy: 15. Mortgages, Loans, Notes All Mortgages, loans, notes and other Indebtedness contracted in the name of NAAJA (other than a routine supplier or vendor credit applications, leases or item of on administrative nature required for general operations) shall require the approval and authority of the Board of Directors. All such loans or indebtedness must be reviewed and recommended to the Board by the CEO for approval before entering into a binding contract. Allegation 2 2. On 8 August 2014, you recklessly and/or wrongfully arranged for the purchase by NAAJA of a Range Rover Sport for a price of $129,119.07, exceeding the $100,000 purchase delegation limit without approval of the Board. Allegation 3 3. On 24 June 2015, you recklessly and/or wrongfully cashed out 278 hours of holiday (annual) leave plus corresponding annual leave loading, totalling $43,017.29, 236.74 hours of that figure, totalling approximately $31,000, exceeded your holiday leave accrual at that date. In this regard, your holiday leave accrual at that date was only 41.26 hours. See supporting documentation at Attachment 3. Allegation 4 4. On 24 June 2015, in contravention of applicable long service leave legislation, and further, wrongfully and/or recklessly, you cashed out $53,172.09 of long service leave. See supporting documentation at Attachment 4. Allegation 5 5. In respect of the period from 2019 onwards (if not earlier), you were provided with an annual vehicle allowance. Such vehicle allowance was paid to you to compensate you for all running costs/expenses of your applicable vehicle in the performance of your duties as CEO of NAAJA. Notwithstanding this, you charged your company credit card with vehicle-related expenses which the vehicle allowance was otherwise intended to cover on the occasions set out in Attachment 5. Allegation 6 6. Without appropriate Board approval and recklessly and/or wrongfully, you made personal purchases with your company credit card on the following occasions: (a) On 14 February 2019 you purchased tyres for personal vehicle registration CB42BB to the value of $884.00; (b) On 27 September 2021 you purchased material and canvases for an artwork to the value of $1,310.00; and (c) On 27 October 2021 you purchased material and canvases for an artwork to the value of $60.00. See supporting documentation at Attachment 6. Allegation 7 7. You failed to obtain appropriate approval for your credit card reconciliations for all months throughout the period of 1 January 2019 to 30 November 2022 excluding the following months: (a) July 2021; (b) August 2021; (c) September 2021; (d) October 2021; and (e) November 2021. See supporting documentation at Attachment 7. Allegation 8 8. You recklessly and/or wrongfully approved your own Lost Receipt Declaration Forms on the following occasions: (a) 17 October 2022, amount totalling $74.00; (b) 18 November 2020, amount totalling $30.00; (c) 23 November 2020, amount totalling $58.59; (d) 23 November 2020, amount totalling $62.98; and (e) 30 November 2020, amount totalling $110.00. See supporting documentation at Attachment 8. 194 The first two allegations relate to an arrangement for the purchase of vehicles participated in by a number of NAAJA employees, including Ms Atkins. I will refer to it as the Vehicle Scheme. 195 The allegation concerning personal expenditure on the credit card is significantly more narrow than the "findings" of personal expenditure set out in the BDO Report. It is confined to three transactions totalling $2,254.00. 196 The Allegations Letter contained no allegation concerning forgery or other misuse of Ms Rosas' signature. 197 The Updated Allegations Letter was sent on 3 February 2023, after the Termination Resolution was made. It contained revisions to the first two allegations in a number of respects. The revised allegations were as follows: Allegation 1 1. You improperly used NAAJA funding money to purchase the following seven vehicles for personal use between 2010 and 2014, in breach of clauses 8 and 13 of the Indigenous Legal Assistance and Policy Reform Program Funding Agreement dated 20 July 2011. 1. February 2012 Mazda 2 MAXX $21,100 2. February 2012 Jeep Patriot $22,500 3. July 2012 Jeep $8,736 4. August 2012 Range Rover Sport $88,253 5. May 2014 Toyota RAV4 $18,500 6. June 2014 VW Amarok $28,700 7. August 2014 Range Rover Sport $118,840 Allegation 2 2. On 8 August 2014, you arranged for the purchase by NAAJA of a Range Rover Sport for a price of $129,119.07, exceeding the $50,000 purchase delegation limit contained in clause 2.3 of the Finance Process dated 18 July 2014 and in breach of clause 13.3 of the Indigenous Legal Assistance and Policy Reform Program Funding Agreement dated 20 July 2011. 198 There are notable differences between the original allegations and those revisions, including the removal of that part of the allegation that referred to the lack of Board approval, the removal of the phrase "recklessly and/or wrongfully", the removal of a reference to "entered into leases", and the reduction in the vehicle numbers from nine to seven. The words "recklessly and/or wrongfully" were also removed from the second allegation, and the exceeded purchase limit was reduced. To the extent of those differences, the updated allegations do not reflect the "findings" contained in the BDO Report considered by directors at the January Meeting, 199 As I have mentioned, neither the Allegations Letter nor the Updated Allegations Letter contained any allegation about the misuse of Ms Rosas' signature.

[17]

Ms Atkins' correspondence to BDO 200 Ms Atkins' correspondence of 9 January 2023 was received by Mr Taziwa after BDO received the Terms and before the BDO Report was complete. Ms Atkins sent the correspondence after becoming aware that BDO was conducting an investigation, although she was not aware of the scope of the Terms. As explained elsewhere in these reasons, the content of the correspondence was known to Ms Rosas. She did not return it to Mr Taziwa nor ask him to read it or take it into account. She withheld the information contained in it from those in attendance at the January Meeting. That correspondence is therefore relevant to my assessment of Ms Rosas' knowledge and motivations. 201 By her email, Ms Atkins said that she understood that BDO had been contracted to investigate her salary and contractual arrangements. As to the contract, she said that she had been accused of giving herself a salary increase, making up her own salary and putting the Chairperson's signature on a letter of extension dated 29 June 2020. She provided Mr Taziwa with a copy of the Complaint and said that it was strange that the Board was accusing her of something that occurred in June 2020 in the same week that she had made the Complaint about Ms Evans. On the topic of her contractual arrangements, Ms Atkins said: I provided the Chairperson on the 14th November 2022 with documentation which including: • Megan Lawton conducting my salary review in December 2017 (Attachment 2) • The NAAJA Board minutes from 14 December 2017 which approves my salary (attachment 3) • A letter from Chairperson Ruby Stanley confirming this salary • An external performance review conducted by Megan Lawton in January 2020 which was used to extend my contract. • The letter of extension signed by the NAAJA Chairperson on 29th June 2020 extending my contract from 1/7/20-30/6/25. I had a lawyer do a certified copy and video copy and the Chairperson come into the NAAJA office and took the original from my Executive Services Co-Ordinator and left with it. (Attachment 4) • My payslip from November which shows I didn't receive a salary increase or CPI from January 2018-30 June 2020 and I didn't receive a salary increase from 1/7/20 to November 2022 and only received a CPI as per the NAAJA EBA on 1/7/20, 1/7/21 and 1/2/22. (Attachment 5) 202 On the topic of vehicle leasing, Ms Atkins provided information to the effect that in 2014 NAAJA's then CFO Mr Morris organised "NAAJA lease agreements" for seven staff, including herself, and that advice had been received by NAAJA's auditors in relation to them. She said that in 2014 NAAJA purchased a Range Rover vehicle for $129,118.00. She said that after Mr Rossingh replaced Mr Morris in 2015, Mr Rossingh presented a memo to NAAJA's FAR Committee on 13 May 2015 and that the matter had been considered at a Board meeting on the following day. She stated the minutes of those meetings could be found in a folder in her office. She said that the Board had agreed that she pay a contribution to reduce NAAJA's FBT, and agreed that the vehicle be sold to her for the outstanding amount of $115,801.41. She said that she had paid those amounts by taking out a personal loan for $100,000. She said that the remaining balance was paid by way of deduction from her annual leave. 203 The correspondence attached a number of documents now in evidence before me. They include Mr Rossingh's memo to the Board in 2015. That is a document that was in Ms Rosa's possession at the time of the January Meeting and its contents are relevant for that reason. It is convenient to record its content here.

[20]

The affidavit of Mr Morris 211 Mr Morris gave unchallenged evidence as why the Vehicle Scheme was established and how it operated. An initial objection to the whole of the affidavit was not pressed and he was not required for cross-examination. I accept his evidence and here summarise its effect. 212 Mr Morris commenced employment with NAAJA in 1997. He was appointed NAAJA's CFO some years into his employment. In that role he had oversight of NAAJA's financial operations as well as its human resources. He retired in 2014 and was then replaced by Mr Rossingh. 213 Before Ms Atkins commenced her employment, a financial audit had identified that there were some employees who had large amounts of accrued leave. NAAJA's auditor recommended that the staff be required to take the leave or that some other way be found to use it. About 12 months later Mr Morris came up with an idea of a "novated vehicle leasing arrangement" which was discussed with and approved by NAJAA's new auditor. He described the arrangement as follows: … The way I saw this was that employees with a lease arrangement who left NAAJA could if they wanted to use the money they had accrued as leave that NAAJA was obliged to pay out when the employment ceased to payout the novated lease. The leave offered us security that the vehicle could be paid for and enabled us the ability to offer another benefit of NAAJA employment to attract and retain staff. 214 Mr Morris presented the arrangement to the whole of NAAJA's Board when he came up with the idea. He explained it to Board members. He did not recall any of the directors asking questions about it. Mr Morris also explained the Vehicle Scheme to the FAR Committee which at that time included three of NAAJA's directors. No members of the FAR Committee asked any questions or expressed any opinion about it. 215 Transactions relating to the Vehicle Scheme were recorded in NAJAA's financial records that were provided to all directors on quarterly basis. Between the time of the creation of the Vehicle Scheme and Mr Morris's retirement in 2014, the FAR Committee met twice a year to review the financial records in detail. The "novated leases" were always identified by a line item in the ledgers. In addition, NAAJA's financials were audited each year while the Vehicle Scheme was in place and that the auditor never raised any issues or concerns about the arrangement with him. In late 2013 or early 2014 NAAJA's financial records were audited by the Commonwealth Attorney-General's Department. Mr Morris disclosed the Vehicle Scheme to that auditor and he had heard nothing from that auditor about it. 216 Following his retirement, Mr Morris became aware that NAAJA had received advice about negative tax implications arising from the Vehicle Scheme. He was aware that employees were required to make payments for the purpose of correcting the FBT implications, and he personally paid $42,874.44 to NAAJA to correct the implications for the vehicles he had purchased under the Vehicle Scheme. 217 Mr Morris established the Vehicle Scheme before Ms Atkins commenced her employment with NAAJA. She played no role in its creation or implementation. When Ms Atkins commenced her employment, Mr Morris explained to her that she could access the Vehicle Scheme once she had accrued sufficient annual leave entitlements. 218 Under the Vehicle Scheme, the eligible employee would select a vehicle with a value equivalent to or less than the monetary value of their leave balance. The employee's chosen vehicle would then be purchased in NAAJA's name. To cover the cost of the vehicle, an agreed amount was deducted from the employee's salary over an agreed period. The employee's leave balance was treated as "security for the value of the vehicle" and the value of each employees' "current novated lease" was recorded as a separate line item in the NAAJA's financial accounts. Once the cost of the vehicle had been met by the employee's repayments, the employee paid a $1 residual amount and the vehicle was transferred into the employee's name. Employees signed a contract with respect to the purchase of each vehicle. 219 Mr Morris said that no vehicle was ever purchased under the Vehicle Scheme for Ms Atkins or any other employee without the knowledge and approval of Mr Morris.

[21]

Ms Atkins' response to the allegations 220 Through her lawyer's letter of 17 February 2023, Ms Atkins sought an additional week to provide a complete response including because she intended to rely on material provided by Mr Morris and Mr Rossingh that were "extremely probative and possibly determinative of one or more of the allegations raised". The lawyers' letter contained her partial response to the allegations, authored by Ms Atkins in the first person. 221 Among other things, Ms Atkins asserted that the Board had obtained advice from NAAJA's auditors that the "leasing arrangements" could be used to incentivise NAAJA employees and could be legally entered into, and that the arrangements were approved by Mr Michael Petterson (now deceased) on behalf of the Board. She enclosed Mr Rossingh's memo and stated that she entered into arrangements for motor vehicles between 2012 and 2015. She asserted that NAAJA's Board had at the relevant time been aware of the conduct forming the subject of the allegation and NAAJA had waived any right to complain about it now. She said that the Range Rover vehicle forming the subject of the second allegation was purchased under the same Vehicle Scheme with the approval of Mr Petterson. She said that her lawyers had requested minutes of the Board to assist with her response, but those requests had been refused. 222 In response to the allegation that she had used a corporate credit card for personal expenses, Ms Atkins said that the two items described as art supplies were not personal expenses but related to the purchase of art work for NAAJA's Palmerston and Darwin Offices where they remained on display. She said that she could not respond to the allegation about the purchase of tyres without having access to the computer that had been taken from her. 223 In response to the allegation that she had used the corporate credit card for fuel expenses Ms Atkins said that she required the use of her computer to respond to discrete items. She said that the expenditure related to the use of NAAJA vehicles and otherwise were referrable to work related travel. She said that she understood that her vehicle allowance related to her personal vehicle as a part of her salary package and that she had not been told that she could not charge any other work-related vehicle expenses to the corporate credit card. 224 In response to the allegation that she had "recklessly and/or wrongfully" cashed out annual leave in excess of her accrued entitlement, Ms Atkins provided a payslip from June 2015 showing that she had a balance of 198.90 hours after the leave entitlement was cashed out. She said that she had been directed by the Board to work with Mr Rossingh (then CFO) to facilitate payment for the Range Rover vehicle and that he had advised her to make a part payment by cashing out her leave entitlement, which she did. 225 In response to the allegation that she had illegally cashed out long service leave, Ms Atkins said that the entitlement had been cashed out on the advice of Mr Rossingh after she had been directed to work with him to facilitate payment for the Range Rover. 226 Ms Atkins provided responses to the remaining allegations. It is not necessary to summarise them here as they do not feature in the evidence to follow. 227 In respect of the allegations more generally, Ms Atkins said that the Board had at relevant times been aware of the matters that were raised and that NAAJA had waived any right to now complain about the conduct.

[23]

Ms Atkins 230 Ms Atkins deposed that she first became aware of the Vehicle Scheme in 2007 following her appointment, that she had been told by Mr Morris that it was approved by the Board and was intended to be cost neutral to NAAJA, that she was not at that time eligible to participate because she had not accrued sufficient leave entitlements, and that she had later been told (in 2012) that she was eligible to participate. Her evidence about her participation in the Vehicle Scheme and its cessation was consistent with the material she attempted to provide to BDO, the evidence of Mr Morris and with her written response to the allegations. She said that there had been a mistaken deduction from her long leave entitlements but that had later been corrected by a reversal made on her own instructions. That reversal occurred before the involvement of BDO and is evidenced by a payslip. 231 Ms Atkins said that she received no cash payment in lieu of annual leave. Rather, her leave accruals were applied in reduction of the debt owing after the cessation of the Vehicle Scheme. Ms Atkins said that all of that was done as advised by Mr Rossingh, then the CFO. 232 Ms Atkins' evidence relating to the Vehicle Scheme is supported in part by contemporaneous records of NAAJA annexed to her affidavits or otherwise before the Court and I accept it. Those records include: (1) payslips recording the recovery of money from Ms Atkins; (2) documents evidencing the taking of the personal loan in the amount of $100,000.00; (3) Mr Rossingh's memo concerning the FBT implications of the Vehicle Scheme; (4) minutes of the special purpose meeting of NAAJA's FAR Committee held on 13 May 2015 (attended by Ms Ellis), at which Mr Rossingh presented information and recommendations were prepared for the Board; and (5) minutes of a Board meeting dated 14 May 2015 recording resolutions calculating amounts to be paid by various employees upon the dissolution of the Vehicle Scheme, including a resolution (moved by Ms Rosas) calculating amounts to be paid by Ms Atkins for the sale of a vehicle to her and for her contribution to the FBT liability. 233 In cross-examination, Ms Atkins said that she sent her correspondence to BDO on 9 January 2023 because she had been informed BDO were investigating her at the request of Ms Evans. 234 In her affidavit, Ms Atkins said that Ms Rosas had signed the Contract Extension Letter on 29 June 2020 in her office. She said that the document was provided to her by Ms Keightley. She said that Ms Keightley brought the document into her office when Ms Rosas was there, that Ms Rosas signed it and gave it back to Ms Keightley. She said that the document was then placed in her personnel file in Ms Keightley's office. 235 Ms Atkins denied that there was any requirement for the Board to approve the extension of her contract. She said that since her initial appointment there had been a series of contract extensions for terms of either three or five years. She said that at no time since 2008 had she been aware of NAAJA specifically voting on and approving any of her contract extensions and that as far as she was aware, the Board had only ever voted on and approved salary increases that were applicable to her. 236 In respect of her salary approval, Ms Atkins said that she did not have access to NAAJA's records. In cross-examination she denied that she "well knew" there was no resolution approving the extension of her contract. Ms Atkins said that she did not draft the December 2017 Minutes recording an increase in her salary at that time and she could not shed light on them. Ms Atkins said that salaries had been increased on the recommendation of a consultant Ms Megan Lawton. 237 Ms Atkins said that there had been no issues raised about her performance at her performance review interview on 5 October 2022. She said that at the end of the interview Ms Rosas had congratulated her on her work. She said that on 14 October 2022 Ms Rosas had also commended her following a report of a meeting with the Commonwealth Attorney-General, and that on 3 November 2022 Ms Rosas had again commended her for her work on a document relating to Board reforms. The latter two communications are in evidence. 238 In cross-examination, Ms Atkins accepted that in an earlier affidavit she had wrongly stated that her performance review report of October 2022 had been prepared by Ms Rosas, Carol Smith and Mr Brown. She denied that was deliberate. The performance review report is in evidence. On its face it is a document obviously prepared by Ms Atkins. 239 She also asserted that there would have been a resolution of the Board approving the extension of her contract in around May 2022. 240 Ms Atkins was cross-examined about the objective subject matter of her Complaint about Ms Evans. For reasons I will explain later, it is unnecessary to summarise that cross-examination here. Nor is it necessary to summarise evidence on topics such as Ms Atkins' resistance of payments of directors' fees to members of the Board. 241 In her affidavit, Ms Atkins set out the asserted factual basis for the concerns she raised in the Complaint about Ms Evans. Again, I do not consider it necessary to explore the detail of that evidence and will explain later why that is so. 242 Ms Atkins said that in early November 2022 she made a telephone call to Carol Smith to discuss her concerns about Ms Evans, and that Carol Smith had suggested that she put her concerns in writing to the Board. She said that at that point she believed Ms Evans had been ignoring the concerns and the situation was getting out of hand. She said that she wanted the intervention and assistance of Ms Rosas, Marilyn Smith and Carol Smith in addressing the conduct referred to in the Complaint. She said that she understood she did not have the authority to take disciplinary action against Ms Evans or to terminate her employment without the approval of the Board, nor did she feel comfortable managing any investigation process because of Ms Evans' behaviour towards her. 243 Ms Atkins said that she had been informed by Ms Rosas that the First November Meeting would be an in-camera session of the Board. She said that when she arrived at 2.00pm on the first day of the meeting, she saw Ms Evans exiting the in-camera session. 244 Ms Atkins said that she had not been contacted by any director about the matters raised in the Complaint and that as far as she was aware, there had been no investigation into the matters. 245 Ms Atkins agreed that her salary had been mentioned at a Board meeting in June 2022 (June Meeting). She denied that after that time Ms Rosas had repeatedly asked for copies of her contract. She referred to the requests made on 3 and 7 November 2022 and said that she had provided the requested information on 8 November 2022. She denied that Ms Rosas had asked for a copy during a drive from Katherine to Darwin in 2022, or repeatedly after that time. 246 In cross-examination Ms Atkins agreed that she reported matters about Ms Evans set out in the Complaint because she considered Ms Evans posed a number of risks to NAAJA. 247 Ms Atkins said following her telephone discussion with Ms Rosas on 15 November 2022 she had sent an email to her saying that there had been a review of NAAJA salaries and referred to minutes of a Board meeting. The minutes do not appear to be attached to the email, but the email does state that they could be found in Ms Atkins' office in a folder called "minutes". 248 On the morning of 16 November 2022 Ms Atkins arranged for NAAJA's then Principal Legal Officer to make a certified copy of the original of the Contract Extension Letter. The certified copy was annexed to her affidavit and no issue was taken with the authenticity of the copy. Ms Atkins said she was later informed that Ms Rosas had attended NAAJA's Darwin Offices later on 16 November 2022, that she had taken the Contract Extension Letter from Ms Keightley's hand and removed it from Ms Keightley's office. 249 Ms Atkins said that the matters raised in the Allegations Letter dated back to 2014 and yet had never been raised with her after that time. She said she was asked to respond to the allegations even though she did not have access to NAAJA's records, nor to her laptop. 250 On 29 December 2022 Ms Atkins reported her "grievances and concerns" to the Office of the Independent Commission Against Corruption NT (NT ICAC) including concerns about the payment of fees to NAAJA's directors. 251 Ms Atkins said that on the basis of the Allegations Letter and the Updated Allegations Letter she believed that NAAJA's Board would take into account the responses she made to the allegations before making any decision relating to her employment. She continued: 198. I also believed that NAAJA had not formed a final view about the allegations made against me, as stated by Ms Rosas in the Allegations Letter, or a final view about the action it might take. That is why I responded as I did. I believed and relied upon the statements in the Allegations Letter. By my response, I set out to persuade the NAAJA Board that I could explain the concerns that it had raised and that I had not, as alleged 'recklessly or wrongfully' acted in the ways that had been alleged. I did want the opportunity of more time to address some matters. I explained what these were in my response and why. I thought that having done so I would be given that opportunity by the NAAJA Board once I [sic] had considered what I had said. 199. I didn't, and don't, believe that the NAAJA's Board should lose trust and confidence in me which is why I wanted to take up the opportunities referred to in the Allegations Letter. I was really troubled and upset by the suggestion in the Allegations Letter that one outcome of the Board's decision making might be to dismiss me and sought to avoid this by the response I gave on 17 February 2023. 252 Ms Atkins said that she was not aware of the January Meeting or any of its outcomes until after this proceeding was commenced. 253 She said that whilst it was her responsibility to update NAAJA's records with the Australian Securities & Investments Commission (ASIC) (including in relation to the status of directors) it was Ms Rosas who had possession of the login details and it was necessary for Ms Rosas to log in before she could notify changes to the Regulator. 254 Ms Atkins said that Ms Shannon was a member of NAAJA but not a director nor has she been appointed as an alternate.

[25]

Ms Marilyn Smith 260 Marilyn Smith was elected as a director in early 2022 for the Central Region. She resigned on 25 January 2023. She said that Ms Rosas and Ms Evans drove from Darwin to Alice Springs together to attend the First November Meeting. She said that she saw them arrive at the meeting together. She said that Ms Evans did not attend the in-camera session of the meeting. 261 In her witness statement Marilyn Smith said that when Ms Rosas provided copies of the Complaint to directors at the First November Meeting she told the Board that she had already given a copy of it to Ms Evans. She said there were then these exchanges: Me: 'But this is confidential. Why did it go to [Ms Evans]? Why didn't it come to the Board? Colleen: It was about [Ms Evans], and she has a right to know … Me: 'Is [Ms Evans] going to respond to these allegations?' Colleen: 'I am giving her time to respond' … '[b]ecause I've given it to [Ms Evans], we have to wait for a response from [her].' 262 Marilyn Smith said that the Board agreed to suspend Ms Atkins' employment "due to [Ms Rosas'] claim" about the Contract Extension Letter. She said that she voted in favour of the Suspension Resolution because Ms Rosas was adamant that Ms Atkins had used her electronic signature without permission, and she considered that to be a serious matter that needed to be investigated. She recalled that some directors had said that the things Ms Atkins had raised in the Complaint were things she should have dealt with as CEO. 263 Marilyn Smith said that Ms Rosas told the Board that the misuse of her signature had been "investigated gradually over the years". 264 Marilyn Smith said that about month after the Complaint was tabled, a response prepared by Ms Evans was provided in hard copy at another Board meeting. She disputed evidence of Ms Rosas to the effect that the Board had decided it was comfortable with Ms Evans response. She said the discussion was focussed principally on Ms Rosas' allegations about the misuse of her signature. She said that the Board decided that Ms Rosas would take up Ms Evans' response with Ms Atkins. She did not recall ever receiving any update about that while she was a director. 265 Marylin Smith said that during a meeting in December 2022 in Darwin Ms Rosas had raised new claims against Ms Atkins relating to the purchase of staff vehicles and the misuse of credit cards. She said that there was not a lot of detail to the allegations and that she had asked Ms Rosas how those things had come up. She said there was then an exchange to the following effect (at [17]): Colleen: 'It's all confidential. A staff member has shown me evidence. I can't show you. I'll come back to you later.' Me: 'We need to have a look.' Colleen: 'No, no, they told me in confidence.' Me: 'Well, if I don't see anything, I'm not taking part in it, it's just hearsay. Someone has told you this or that, but we don't get to see it, and if you want us to vote on it, I am not doing it.' Colleen: 'I'll talk to you about this later.' 266 Marilyn Smith said that she was not aware of a meeting between Ms Rosas, Mr Brown and Mr Taziwa referred to in Ms Rosas' affidavit but said that Mr Taziwa "may" have been at one of the Zoom meetings she attended in December 2022. She said she did not know about the Terms or about the basis for the matters described as the "scope of works". She said that she had not been made aware of any evidence of wrongdoing by Ms Atkins prior to 3 January, the date of the Terms. 267 Marilyn Smith said that she was not provided an opportunity to attend the January Meeting by Zoom, which was unusual because the Board had been conducting meetings by Zoom since the prior November. She said she did not nominate any alternative or proxy "for approval by the Board or at an annual general meeting". She said that she resigned from the Board because she believed that certain directors were making decisions without including her and when all other directors should have been included. 268 In cross-examination, Marilyn Smith maintained that she had seen Ms Rosas and Ms Evans arrive together by car to the First November Meeting. She said she believed they had driven together from Darwin because she understood they were going to view a property in Tennant Creek. She maintained her evidence that Ms Rosas had told the Board at the First November Meeting that the Complaint had already been given to Ms Evans. She said that whether the Complaint should be given to Ms Evans was beyond the control of the Board because it had already been given. She agreed that the Board resolved that Ms Evans should be given until 2 December 2022 to respond. She maintained her evidence that Ms Rosas had told the Board that the misuse of her signature had been "gradually investigated" over the years. She insisted that she had heard Ms Rosas allege that Ms Atkins had been using a NAAJA credit card to purchase personal cars for NAAJA staff.

[26]

Ms Carol Smith 269 Carol Smith was elected a member of the Board in late 2018 or early 2019 for the Central Region. She resigned on 25 January 2023. In her witness statement, she confirmed that Ms Atkins had spoken to her by telephone about the Complaint before she sent it to Ms Rosas, herself and Marilyn Smith. She confirmed that she had advised Ms Atkins to send a letter to the Board about her concerns. 270 Carol Smith's account of what occurred at the First November Meeting included the following: 20. When Colleen gave us hard copies of [Ms Atkins'] email there were some Board members who started saying that the email reflected badly on [Ms Atkins] and that she couldn't manage her own staff. I remember a comment about this being a diversion from the NAAJA organisational review. I don't recall who said what, except that in paragraph 18 of Rebecca Moore's affidavit, Rebecca says that another Board director raised an issue about [Ms Atkins'] purchase of a car for her personal use using NAAJA funds and that to the best of Rebecca's recollection it was Natalie Ellis who raised this. I agree the topic was raised by Natalie on that day, but Colleen had previously raised this. I do not remember when she raised this previously, and I do not recall whether that was during a board discussion, or in a private conversation. Colleen also said that she had heard that [Ms Atkins'] husband had got flagged for drugs and thought that maybe [Ms Atkins] was on them too. 21. In paragraphs 19 and 20 of her affidavit, Rebecca refers to [Ms Atkins'] complaint and says the Board went through the complaint together and that she formed the view the complaint was about Madhur's performance and that it was [Ms Atkins'] responsibility as CEO to take disciplinary action against Madhur where that was warranted. I do remember Rebecca saying words to this effect. There was criticism like this, but the criticism was that [Ms Atkins] shouldn't have made the complaint to the Board, but instead handled things herself. 271 Carol Smith said that when the meeting broke for morning tea, Ms Rosas "took what I would describe as a poll of Board members". She continued (at [27]): She asked which of us would continue to serve as Directors of the Board if [Ms Atkins] remained as the CEO. This completely blindsided me. While criticisms of [Ms Atkins] were being made during the in-camera session, the poll that [Ms Rosas] took just before morning tea came out of the blue. 272 Carol Smith said that she abstained from the Suspension Resolution at the Second November Meeting because she didn't consider there was sufficient evidence to give rise to a concern about the signature issue. She considered Ms Rosas had memory problems including because she had not remembered participating in Ms Atkins performance review. She said of the Second November Meeting (at [30]): When someone, I don't recall who, pressed [Ms Rosas] about the report from Greg Ward her response was that it must have been [Ms Keightley] who put her signature on [Ms Atkins'] contract. It was just allegations. No evidence was presented. Other allegations started to come up too. There was an allegation that [Ms Atkins] had used her credit card to buy the male NAAJA directors shirts. I don't recall now who raised this, but I recall male directors saying that [Ms Atkins] hadn't bought them any clothes. Again, just allegations. Other allegations were being made too. By then, we knew about a worker's compensation claim from [Ms Atkins]. 273 Carol Smith disputed evidence of Ms Rosas to the effect that the Board had considered a copy of Ms Evans' response to the Complaint at a Board meeting and that it had decided that the issues raised in the Complaint were management issues and that the Board was comfortable with the response. She said "that didn't happen at any Board meeting at which I was present after 27 November 2022". 274 Carol Smith referred to Ms Rosas evidence concerning a meeting she had with Mr Taziwa. She said that she was not aware that that meeting had occurred until she read Ms Rosas' affidavit. She said that she had been introduced to Mr Taziwa at a Zoom meeting "at which only some of us were present just before Christmas". Her recollection was that the issue discussed related to the alleged use of a credit card to buy shirts for male directors. She said she had no other involvement in providing information to Mr Taziwa, that she was not aware that Ms Garlett, Ms Ellis and Ms Moore had signed the Terms. She said she had not been asked to approve the Terms and she hadn't seen the document until the time she prepared her witness statement. 275 Carol Smith said that when she received an email giving notice on 4 January of the January Meeting, she did not understand the issues referred to in it. She said that she did not have specific knowledge of what the "draft investigation report" or "NAAJA constitution items" would be addressing. Carol Smith's response to the email relating to the appointment of alternates is in evidence. She described the effect of the communications as follows (at [37]): … The response from me was that I would be happy for her to try any of the other members. I meant members of the Central Australian or Southern Region. I thought she could ask if there was another member who would be available. However, I heard nothing more from her after that email. I wasn't asked to endorse any member that she might have found. I subsequently learnt that Joyce Taylor and Hugh Woodbury had been asked to attend the meeting. But I didn't know about that until after the meeting had occurred. [Ms Rosas] didn't ask me to nominate them or sign a document nominating them. 276 Carol Smith said that she resigned as a Board member because she felt that Ms Rosas was not including her and Marilyn Smith in some decisions that were being made by some directors relating to Ms Atkins and because Ms Rosas had accused her of leaking information (an allegation she denied). 277 Carol Smith maintained her evidence in cross-examination, denying assertions that some events did not occur.

[29]

Ms Moore 281 Ms Moore was appointed to the Board in February 2020 for the Southern Region. 282 Ms Moore said that at the June Meeting Ms Rosas had asked Ms Atkins to provide a copy of her contract to the Board. She said that on 19 October 2022 Ms Rosas had forwarded to her Ms Keightley's email attaching documents which included the Contract Extension Letter. 283 Ms Moore said that she attended the First November Meeting when the Complaint was tabled. She said that at that meeting another Board member (she believed, Ms Ellis) had raised an issue about Ms Atkins purchasing a car using NAAJA funds. She said there was a brief discussion about that but no course of action was decided. As to the content of the Complaint, she said (at [20]): The Board went through the Complaint together. I formed the view that the issues raised in the Complaint were about Madhur's performance and that it was [Ms Atkins'] responsibility, as CEO, to take disciplinary action against Madhur where it was warranted. Some of the matters I thought were things that you wouldn't really complain about. Some of the things raised were petty. 284 Ms Moore said that the Board decided that Ms Evans "had to be given natural justice" and that she should be given a fortnight to respond to the allegations in the Complaint. She said that Ms Evans did not attend the in-camera session of the First November Meeting. 285 She said that she voted favour of the Suspension Resolution at the Second November Meeting so that the Board "could put in place a transparent investigation in the Contract Extension Letter, which was not subject to interference from [Ms Atkins] or [Ms Keightley]." She denied voting in favour of the suspension because of the Complaint. 286 Said that "[a]t a Board meeting held in December 2022, the Board agreed to have BDO investigate a number of issues" relating to the use of Ms Rosas' signature, the purchase of vehicles and Ms Atkins' use of her NAAJA credit card. She said (at [28]): I was in favour of having BDO look into these issues because I thought these were things that should be investigated to find out if there was something going on that shouldn't have been going on. I didn't vote in favour of having BDO look into these issues because of the Complaint. 287 She said she did not "vote in favour" of BDO looking into the issues because of the Complaint. 288 Ms Moore said that at the January Meeting Mr Taziwa provided the Board with a "draft report" and that he went through it with the directors. She referred to the four resolutions made at that meeting and said (at [36]): I voted in favour of [Ms Atkins'] employment being terminated because of what I considered to be the fraudulent activity she was engaging in that was described in [Mr Taziwa's] draft report. I have been involved in Aboriginal affairs for a long time and in my view, the worst of the worst conduct is when our own people rip us off. 289 Ms Moore went on to say that she also had concerns about how Ms Atkins was performing in her role "in terms of Board governance", referring to the way in which Board meetings were arranged and the absence of a scribe. She raised other performance related issues unconnected to the Complaint, such as a lack of NAAJA lawyers at Tennant Creek. Ms Moore said that she abstained from the resolution requiring that Ms Atkins' termination occur after consultation with the Attorneys-General because she thought that process would take too long and she wanted the termination to be effective immediately. 290 Ms Moore said that she was "part of a decision by NAAJA" to send the Allegations Letter to Ms Atkins. She said that she wanted to send the letter "following NAAJA receiving legal advice" and that her decision to send the letter was not because Ms Atkins had made the Complaint. She said she was "part of a decision by NAAJA" to send the Updated Allegations Letter by which Ms Atkins' request for more time to respond to allegations was refused, and that she made that decision because she felt that Ms Atkins was "just buying time". She denied making that decision because of the Complaint. 291 Ms Moore said that she "saw" a response NAAJA received from Ms Atkins. She did not state when that occurred, nor that she had read it, nor what she thought of it. In additional evidence-in-chief she confirmed that she received the response in an email forwarded by Ms Rosas (but did not say that she had read it) and that she attended the February Meeting. 292 Ms Moore said that she was also "part of a decision by NAAJA" to send the Termination Letter. She said that she knew at that time that Ms Atkins had threatened to sue NAAJA, but she did not decide to send the Termination Letter because of those threats. She said she wanted to send the Termination Letter "for all the reasons I voted in favour of the resolutions to terminate [Ms Atkins'] employment at the January Board meeting" and that at the time of that decision she was aware that this proceeding had in fact been commenced. 293 As to the Complaint, Ms Moore said that it was her view that it was "dealing with performance issues that [Ms Atkins] should have brought up directly with [Ms Evans], without Board involvement". She said that she had read Ms Evans' response to the Complaint and that the Board had decided that it was not necessary to take any action. She could not recall when that was decided but thought it might have been in a Board meeting in December 2022. 294 Ms Moore was cross-examined on her role in having a letter sent to Ms Atkins threatening defamation proceedings. That topic is of little consequence to the substantive issues to be tried. 295 Ms Moore denied that when the Complaint was tabled at the First November meeting Ms Rosas said it had already been provided to Ms Evans. 296 She denied that Ms Atkins' threat of legal proceedings operated on her mind when joining in the decision to send the Termination Letter. 297 Ms Moore stood by her assertion that Ms Atkins had been asked by Ms Rosas to provide the Contract Extension Letter at the June Meeting. She could not explain the inconsistency between that evidence and Ms Rosas evidence on the same topic. 298 Ms Moore said that the only allegation made about Ms Atkins at the First November Meeting related to her purchase of a car for personal use. 299 She said that the Board discussed the Complaint and "decided under natural justice that Ms Evans should be given the opportunity to respond to the allegations". She acknowledged that some of the allegations made against Ms Evans were serious but said she did not think they were worthy of investigation because "under natural justice" Ms Evans should be given an opportunity to explain them. She said that Ms Rosas told the Board that other allegations concerning Ms Evans' approval of her travel allowance were not correct and she believed Ms Rosas. 300 When asked whether she didn't think as a matter of "natural justice" Ms Atkins should be afforded an opportunity to comment on the matter raised in the Terms she had signed, Ms Moore responded that Ms Atkins was given an opportunity to respond by way of the Allegations Letter. She agreed she had asked BDO to investigate without putting any of the matters raised in the Terms beforehand to Ms Atkins. 301 Ms Moore was asked about an aspect of the Complaint concerning the purchase of a large amount of IT equipment that could not be accounted for, and unanswered requests for their production. She said: I would have believed that the CEO's role is to be responsible for organisational issues within the organisation. Ms Evans and Mr Ward were Ms Atkins' subordinates, so she should have taken action against them. And it's not up to the board. The board has a strategic role. 302 Ms Moore went on to say that she believed it was the CEO's role to deal with it. She said: It's not a board issue. That's why you have a CEO and that's their role and responsibility, is to be responsible for the organisational performance of the company. 303 She later added that the CEO of a large organisation should know where the IT equipment was. 304 Ms Moore repeated several times that it was not the role of the Board to take disciplinary action against Ms Evans and that it was Ms Atkins' role to do that where it was warranted. She agreed that she considered Ms Atkins had done the wrong thing by raising some matters that she considered to be "petty". She later denied saying that Ms Atkins had done the wrong thing by making the Complaint. 305 Ms Moore denied that Ms Evans and Ms Atkins were given differential treatment by reason of Ms Evans being provided with an opportunity to respond to the Complaint but Ms Atkins not being given an opportunity to respond to allegations that formed a part of the Terms. She said there was no differential treatment because the former process involved a complaint whereas the BDO process was in the nature of an investigation. She agreed that she did not have any material in writing pointing to there being anything untoward in relation to some topics mentioned in her affidavit. She agreed that the exercise with BDO was "looking to see whether there would be material that supported each of the allegations". 306 Ms Moore accepted that she had read the Ward IT Report and knew that the signature on the Contract Extension Letter was not explained by the use of either of the only two electronic signatures for Ms Rosas in NAAJA's IT systems. She insisted that the signature on the Contract Extension Letter did not look like a signature that appeared on Ms Rosa's "personal cards". Said at that at the time of the Suspension Resolution she did not believe the signature was Ms Rosas. She could not say why she did not disclose that personal belief in her affidavit. 307 Ms Moore said that Ms Atkins had been provided with the opportunity to respond to allegations about the misuse of Ms Rosas signature, but later said that she was not sure whether the opportunity to respond related to that issue. 308 Ms Moore said that she had no involvement in developing or drafting the Terms she had signed. She said that she was given the document to sign if she agreed with it. She agreed that a central feature of the Terms was the requirement that BDO identify whether there had been intentional and unethical practice. There was then the following exchange: Can you tell the court how you - how BDO was to go about identifying whether Ms Atkins had intentionally breached any of NAAJA's policies if the allegations hadn't been put to her?---Can I just have a look up on the priorities? No - yes. Yes. So, sorry, what was the question again? HER HONOUR: The question was how was BDO to identify whether Ms Atkins had intentionally breached or, if the allegations - if the allegations hadn't been put to her?---Because the - might - because the investigation would identify - if it was unintentional, then there would be no further thing, but if there was intentional stuff that was found, then it would be put to Ms Atkins. MR HARDING: But my question to you is how is BDO to establish whether Ms Atkins had intentionally breached if the allegations had not been put to her?---Because they would have done a review of the documents that was held in the office. And how do you - how do you say that would establish her intention?---It wouldn't have, but then it would - - - No?---But then it would have given the - given us, as a board, to go back to Ms Atkins and ask why this happened - to put the allegations to her. So is the - your reasoning here that BDO would discover the intention of Ms Atkins from a document?---Yes. And if - and your - as a signatory to these terms of reference, you've asked BDO to identify if they were intentional or unintentional. How did you - how did you expect BDO to identify either of those things?---I'm not real sure. You don't know?---I'm not real sure. You don't know?---I'm not real sure. That's my answer. 309 Ms Moore confirmed that she was convinced by the BDO Report that there was fraud. She said that the "fraudulent activity" she relied on at the January Meeting included the BDO Report's conclusion that a NAAJA credit card had been used for vehicle expenses. She acknowledged that she had no evidence to contradict Ms Atkins' evidence that the expenses were incurred in relation to NAAJA vehicles. She acknowledged that she did not ask that question of Mr Taziwa. She agreed that she had "just assumed" that the expenses were used in connection with Ms Atkins' personal vehicle. She said that the BDO Report was presented to her as evidence of deliberate wrongdoing, and that she was persuaded by the fact that Mr Taziwa worked as an auditor for BDO to conclude that the Report contained factual findings. 310 Ms Moore said that she based her decision "on the evidence that was at hand". When it was put to her that the evidence did not include the voice of Ms Atkins, she said "exactly". She otherwise disclosed some appreciation of the absence of any opportunity given to Ms Atkins: And you were so keen to have her out of the organisation that you voted for a termination resolution at the meeting, although you hadn't put any of these things to Ms Atkins?---I based my decision on the evidence that was at hand. Evidence that did not include the voice of Ms Atkins?---Exactly. 311 Ms Moore accepted that the assertion in the Allegations Letter that NAAJA had not yet formed a view as to Ms Atkins' ongoing employment was entirely inconsistent with the Termination Resolution. She accepted that the Allegations Letter represented that the Board would consider the response and that the Board would then consider whether she would "still have a job" after her response. 312 She confirmed that she attended the February Meeting even though her name is not recorded as an attendee and she is not noted as a speaker in any written record. She said she was aware that the meeting had been arranged by NAAJA's lawyers to consider whether to dismiss Ms Atkins. She said this of that meeting: Now, you've just given some evidence in answer to a question from me that the consideration referred to in the 19 January allegations letter was consideration - was the consideration of the board. Now, as a director, did you not think it sensible to say, 'Let's defer this meeting until we can get a meeting of the board together'?---No, because Colleen Rosas, Natalie and myself are an executive of the board. And you believed you had authority to make the decision yourselves?---Well, we didn't make the decision. The decision was made on 12 and 13 January. We just enacted it. 313 Ms Moore claimed to be naïve about the legal process of an injunction restraining NAAJA from dismissing Ms Atkins. She said that she relied on legal advice and that "[a]ll I was wanting to do was get the letter sent". She denied that she wanted the Termination Letter sent that day to make the interlocutory application "disappear". 314 In re-examination Ms Moore elaborated on her assertion that she had seen Ms Rosas' signature on personal cards which did not resemble the signature on the Contract Extension Letter. She said that she viewed those cards in early December 2022.

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Ms Rosas 315 In relation to the Contract Extension Letter, Ms Rosas said "I have no recollection of signing that document and I don't believe that I did so". She said that the Contract Extension Letter "purported" to extend Ms Atkins' salary for a period of five years which required the approval of the Board. She said she had not been part of any Board meeting that had passed a resolution to extend the contract to 2025. 316 She referred to a document that "purports" to be the December 2017 Minutes which record her presence and a resolution to approve Ms Atkins' salary increase. She said that she may well have attended a Board meeting at that time but had "no recollection of this resolution". 317 Ms Rosas said that she "emailed all the Board of Directors and sent them a copy of the Contract Extension [Letter] and suggested we discuss the document at the next Board meeting". The email included a reference not solely to Ms Atkins' contract but also to the contracts of two other senior managerial staff. It is the same email referred to earlier in these reasons, sent after Ms Rosas asked Ms Keightley for copies of the contracts for the purpose of meeting with "the consultants". 318 Ms Rosas said that in around late November 2022 "the NAAJA Board" had engaged BDO to conduct "an independent special audit". She said (at [53]): More specifically, BDO was engaged to review, analyse and report back to the NAAJA Board on any irregular or inappropriate actions within specified areas of the CEO's role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023. 319 In her second affidavit she said this of the engagement of BDO (at [85]): In late 2022, [Mr Brown] and I met with [Mr Taziwa], Partner, Audit & Assurance, BDO Australia Ltd (BDO), an independent auditing body. This led to the Board engaging BDO to conduct an independent special audit in respect of [Ms Atkins'] conduct as CEO. More specifically, BDO was engaged to review, analyse and report back to the Board on any irregular or inappropriate actions within specified areas of the CEO's role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023 (BDO Audit). Now produced and shown to me marked 'CJR-15' is a copy of the Terms of Reference of the BDO Audit signed by various directors in early January 2023. 320 In her second affidavit, Ms Rosas alleged that at the June Meeting she had learned of Ms Atkins' salary in the context of a request then being made for a number of senior managerial staff to be given pay increases because of the newly introduced auspice arrangements. She said that she was "horrified" to learn of Ms Atkins' salary. She said that the salary seemed "much higher to me than I remembered" and that she had "no memory of any involvement in its approval". She said that she decided to ask Ms Atkins for a copy of her contract of employment because she was troubled by the level of her remuneration. She said that she asked Ms Atkins to provide a copy of the contract after the June Meeting when they were travelling together from Katherine to Darwin. She said that she told Ms Atkins that "the Board" needed to see the contract, and that Ms Atkins had assured her it would be provided. Ms Rosas alleged that in the months that followed she repeatedly asked Ms Atkins "in conversation" to provide a copy of the contract, but by October Ms Atkins had still not provided it, despite assurances she would do so. Ms Rosas said that she requested a copy of the Contract Extension Letter from Ms Keightley on 18 October 2022 and received a copy of it (together with the contracts of other staff members) on the following day. She said that she was not a party to a discussion of directors about an extension of Ms Atkins' employment to 2025, nor had she been part of a Board resolution to extend the contract to that time. 321 Ms Rosas said that when she received the Complaint she was "dumfounded and surprised". She said that she had observed a friendly relationship between Ms Atkins and Ms Evans. She said "I also didn't think the Complaint should have come to the Board. It was a performance management issue and [Ms Atkins] should have had the skills to deal with it herself". 322 Ms Rosas said that in the in-camera session at the First November Meeting she raised the matter of Ms Atkins' salary and her belief that she had not signed the Contract Extension Letter. She did not elaborate on any discussion that followed. Ms Rosas said that she also raised the issue of the Complaint with the Board. She said only that the Board discussed it and agreed to notify Ms Evans of the matter "and to give her an opportunity to respond in keeping with natural justice". She referred to Ms Garlett being tasked to investigate the signature issue through Mr Ward, and said "I was not involved in these investigations to avoid any suggestion of a conflict of interest". She referred to the Ward IT Report sent to Ms Garlett on 14 November but did not specify when she received a copy. 323 Ms Rosas referred to the telephone discussions she had with Ms Atkins 15 November 2022, described earlier in these reasons. She said that Ms Atkins was "yelling and swearing at me and gave me the impression of being hysterical". 324 Ms Rosas referred to the Suspension Resolution. She said that wanted Ms Atkins to be suspended "because we couldn't do any investigation until she was out of the office". She said that the Board was adamant that it needed answers and for the signature issue to be investigated straight away. She said that the Complaint "had absolutely nothing to do with why I voted in favour" of the Suspension Resolution. 325 Ms Rosas said that she received Ms Evans' response to the matters raised in the Complaint on 27 November and that she provided hard copies of the response to directors "at a subsequent Board meeting". She said that the Board discussed the response at the subsequent meeting and that the Board "decided the issues raised in the Complaint were management issues and we were comfortable with [Ms Evans'] response". 326 In her second affidavit, Ms Rosas' evidence concerning the engagement of BDO was expressed as follows: 85 In late 2022, Phil and I met with [Mr Taziwa], Partner, Audit & Assurance, BDO Australia Ltd (BDO), an independent auditing body. This led to the Board engaging BDO to conduct an independent special audit in respect of [Ms Atkins'] conduct as CEO. More specifically, BDO was engaged to review, analyse and report back to the Board on any irregular or inappropriate actions within specified areas of the CEO's role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023 (BDO Audit). Now produced and shown to me marked 'CJR-15' is a copy of the Terms of Reference of the BDO Audit signed by various directors in early January 2023. 86 … Madhur initially recommended BDO to the Board. I also made my own inquiries about BDO to satisfy myself that it would meet NAAJA's requirements for independence. 327 Ms Rosas did not explain the context in which Ms Evans had an opportunity to recommend BDO "to the Board". She did not disclose who drafted the Terms. Nor did she make any reference to having been provided with Ms Atkins' correspondence to BDO before the January Meeting. Nor did she assert that she had provided copies of that correspondence to directors. She referred to having chaired the January Meeting but did not explain the circumstances in which the meeting was called or refer to lawyers' correspondence regarding its timing. 328 Ms Rosas gave the following reason for joining in the Termination Resolution (at [99]): The findings in the KPMG Review Report and the BDO January Report of the audit process caused me to lose confidence in [Ms Atkins'] performance in the role of CEO and her ability to competently lead the organisation. This is way [sic] I voted in favour of the resolutions regarding her termination of employment. My vote had nothing to do with the Complaint, or with [Ms Atkins] threatening to sue NAAJA. 329 She said that she voted in favour of first informing the Attorneys-General before putting the Termination Resolution into effect as a matter of courtesy to the Attorneys-General whose Departments were responsible for NAAJA's funding. She said that she reported the BDO findings to the Attorneys-General at a meeting on 15 January 2023. 330 Ms Rosas said that she sent the Allegations Letter to Ms Atkins "on behalf of NAAJA" providing Ms Akins an opportunity to respond to allegations "about her misconduct as CEO as evidenced in the [BDO Report].". She said that had been done after consulting with "other Board Directors (and NAAJA's lawyers)". She did not identify which other directors were consulted. 331 Ms Rosas said that on 2 February 2023, BDO provided NAAJA with an updated and final report. She did not say that that report was ever provided to the Board. 332 Ms Rosas said that she gave instructions to NAAJA's lawyers to send the Updated Allegations Letter after consulting with "other Board Directors". She does not identify the other directors she consulted. She said that she refused to agree to provide Ms Atkins with any more time to respond (at [107]): … because I thought [Ms Atkins] had enough time to answer the allegations and I didn't want the process to be drawn out. It had nothing to do with the Complaint or [Ms Atkins] threatening to sue NAAJA. 333 A similar reason was given for a further refusal to grant a further request of Ms Atkins' for more time to respond. Ms Rosas said that she read Ms Atkins' letter of 17 February 2023 responding to the allegations in the Updated Allegations Letter. She said (at [110]): … As far as I was concerned, there wasn't enough in [Ms Atkins'] response to justify the Board changing its course. 334 Ms Rosas gave the following reasons for deciding to send the Termination Letter to Ms Atkins (at [112]): At the time that I provided NAAJA's lawyers with instructions to prepare the Termination Letter, I knew that [Ms Atkins] had threatened to take NAAJA to Court but I was not aware that this proceeding (Proceeding) had been filed in the Federal Court of Australia. I deny any allegation that I instructed NAAJA's lawyers to prepare and then send the Termination Letter because [Ms Atkins] had either threatened to bring these legal proceedings or had filed the Proceeding. My reason for wanting to send the Termination Letter was because of the information we had from BDO and the fact the relationship between [Ms Atkins] and the Board had totally broken down by this point. The organisation needed to move on after all the disruption [Ms Atkins] had caused. 335 The latter part of the evidence is subject to an agreement that it be used only to evidence Ms Rosa's subjective opinion. 336 Ms Rosas' affidavits contain no mention of the email sent to her by Ms Evans on 11 November 2022 asking (among other things) what guarantee she had that Ms Atkins would not sack her. 337 In cross-examination Ms Rosas acknowledged that the issue of management salaries came up in June 2022 because the workload of NAAJA had increased significantly with the auspice arrangements. 338 Ms Rosas denied that she had been part of the decision recorded in the December 2017 Minutes to approve an increase in Ms Atkins' salary at that time, although she acknowledged attending the meeting. She said that the minutes "have been changed seven times in four months" and that she had no confidence that they were a true and correct record of the meeting she attended. Ms Rosas said she was aware of an IT report showing the minutes had been changed. However, she also acknowledged that she may have forgotten discussions at that meeting in which salaries were disclosed and pay increases approved. Notwithstanding that acknowledgment she maintained her assertion that the minutes had somehow been altered, that they could have been altered by the person who prepared the minutes, and that the person who prepared them was Ms Atkins. 339 Ms Rosas said that she asked Ms Atkins for a copy of her contract in the course of the June Meeting. That does not accord with her affidavit evidence to the effect that she asked for the contract on the drive back from Katherine to Darwin. 340 Ms Rosas volunteered that she requested copies of contracts of three employees from Ms Keightley because she did not "want to seem to be focussed" on Ms Atkins. She volunteered that she had asked Ms Atkins "several times over a period of time for the contract, and she suggests [Ms Keightley] would get the contract to me". 341 When reminded that she had said in her email that she sought the contracts because she wanted to see them before meeting with consultants she said "that was an absolute mistake". She said that she wanted to see the contracts before the Board meeting. 342 Ms Rosas acknowledged that on 3 November 2022 she had asked Ms Atkins to provide copies of staff contracts (including for Ms Atkins herself) for the purpose of informing the Board's decision about a salary for a new Principal Legal Officer. 343 Ms Rosas said that Ms Atkins was not afforded an opportunity to respond to the matters raised in the Terms because she had raised allegations of bullying against her and that she did not want to be seen to be bullying or harassing Ms Atkins in the context of the workers compensation claim. 344 She acknowledged that the Ward IT Report had identified no evidence that her electronic signature had been used. She confirmed she had been given the original document bearing a hand written signature when she returned to Darwin, and that up to that time she had only seen scanned copies. She said she had given the document to the police to investigate. Ms Rosas doubled down on her assertion she had not signed the document, which expressed in terms either as a positive denial or as a lack of recollection: And this was a meeting in which it was decided to suspend Ms Atkins as well as Ms Keightley?---Yes. Ms Rosas, there was no actual evidence at that time that supported your suspicion that your signature had been used or forged?---I knew I hadn't signed it at that time, your Honour. Yes. There was no actual evidence, was there, that your signature had been used without your permission or forged?---The evidence was in my mind that I knew I had never signed it. Yes?---Somebody obviously done it and it wasn't me. Well, Ms Atkins' evidence is that you signed it personally in her office in the presence of Ms Keightley?---Well, I have no recollection of being in any office with Ms Keightley and signing a contract. Ms Rosas, the evidence of Ms Atkins is that you came into her office and signed the contract in her presence?---I a hundred per cent dispute that. 345 Ms Rosas then alleged that BDO had investigated aspects of the Complaint, specifically allegations Ms Atkins had made against Ms Evans. She insisted that there were two separate investigations. 346 Ms Rosas denied that at the First November Meeting in Alice Springs there had been additional allegations raised about Ms Atkins. She specifically denied that the issue of the use of NAAJA funds to purchase vehicles was raised. 347 Ms Rosas confirmed her view that Ms Atkins ought to have dealt with the matters raised in the Complaint herself, and that the issues were "operational". She acknowledged that she took the view that Ms Atkins should not have raised the matters in the Complaint with the Board. She said that Ms Atkins "may have made a mistake" in that respect but that she was not going to hold that against her forever, nor did she hold it against her at the time. 348 Ms Rosas was unable to say when the Board considered Ms Evans' response to the Complaint. She could not say whether she provided copies of the response to other directors in hard copy or by email. She repeated again that there had been a second investigation by BDO into allegations Ms Atkins had made about Ms Evans. 349 Ms Rosas was shown minutes of the December Meeting in which a director is recorded as raising the topic of the progress of the investigation relating to Ms Keightley and Ms Atkins, and also recording Ms Ellis querying "what exactly were the Board going to be investigating". She agreed that as at that date the only issue at that time was the signature issue that had not been resolved. She acknowledged that at that time there was no evidence that could be put to Ms Atkins relating to the status of her signature on the Contract Extension Letter. She acknowledged that the issue rose no higher than her own allegation. 350 Ms Rosas was questioned about Ms Ellis' email of 13 November 2022 (summarised earlier in these reasons) as follows: Q: What Ms Ellis is referring to there is whether the allegations against Ms Atkins were going to be expanded beyond the contract extension letter, wasn't she? A: ---A director - at the time, a director from Alice Springs asked to investigate a credit card and the comments, sort of, around the table, 'There has never been any real issue.' The director then stated, 'I think it could be a pattern,' and I think that's when - that's when the board started getting involved in what should be investigated. Q: 'It could be a pattern.' So again we are in the realm of suspicion and allegations?--- A: Yes. Yes. 351 She added that the signature issue did not involve suspicion on her part because she knew she had not signed the Contract Extension Letter. 352 Ms Rosas said that as at 14 December 2022 she agreed with the email circulated by Ms Ellis stating "I do not think it is tenable that there can be a future working relationship with the Board and CEO". 353 Ms Rosas said that the Terms were "set up by a number of people" including directors. She said that issues had been raised at a face to face meeting in Darwin, where directors had said "[w]hat about this? What about that?". She said that she thought that was when "the stuff came up about the credit card". 354 Ms Rosas said that the meeting with Mr Taziwa occurred on 23 December. She said that it was conducted by Teams and that other directors were present. 355 Ms Rosas said that it "would probably be Mr Brown" who wrote the Terms and later added "that's how it would happen". 356 Ms Rosas said that she had read the correspondence that Ms Atkins had sent to Mr Taziwa. She acknowledged that she had previously been told by Mr Taziwa that he had received the emails but that he had not opened them. When asked why there was any reason why she had not drawn information in Ms Atkins' correspondence to the Board's attention she said that she did draw it to the Board's attention at the January Meeting. She said "[e]very board director was given a hard copy with their name and number, and they were destroyed right at the end of the meeting". She said she had not sent the correspondence to directors that weren't present at the meeting because it wasn't to be released publicly. 357 In relation to the Vehicle Scheme, Ms Rosas acknowledged that she was present at a Board meeting in 2015 at which the Vehicle Scheme was discussed. She agreed that the then CFO had presented a memo to the FAR Committee. She denied knowledge about the detail of the Vehicle Scheme. She denied ever receiving a memo from Mr Rossingh about it. She denied having previously seen a memo addressed to the Board on the topic, but acknowledged that it was included among the documents Ms Atkins had sent to Mr Taziwa. Ms Rosas attention was drawn to the content of the memo confirming that Ms Atkins had acted on auditor's advice and that she had acted in an exemplary way in seeking to have the matter resolved. It was put to her that the information contained in Mr Rossingh's memo was critically relevant to the Board's consideration of whether Ms Atkins had done the wrong thing in relation to the Vehicle Scheme. Her answer was that she had not previously seen Mr Rossingh's memo at a Board meeting. Ms Rosas ultimately accepted that the memo was highly relevant to whether Ms Atkins had done the wrong thing in relation to the Vehicle Scheme. 358 In relation to the "findings" of BDO regarding the Vehicle Scheme there was this exchange: There's a paragraph that starts: As can be seen above, this set-up was not done correctly by management, and as a result, management used NAAJA as a finance provider for this scheme. See that?---Mmm. Yes. And did you conclude from that report that Ms Atkins had herself set this scheme up?---Look, I couldn't - I couldn't answer that. At the time I wasn't even sure who had used cars, who had brought cars or whatever, but I guess I concluded she must have had knowledge that there was a scheme set up to - to do it. Look, I don't know who set it up. I couldn't say that. Well, but you concluded from that paragraph that Ms Atkins had done the wrong thing, though, hadn't you?---Look, I think from that I thought Ms Atkins had taken the wrong advice from somebody. The wrong advice?---Because we were told that she was advised by an auditor that this was okay, and from what I understand, Attorney-General's supposedly approved it. Well, why was it then - why did it count against her for the purposes of the board deciding to terminate her appointment?---I don't think it did. It didn't. You say, don't - - -?---?---I think there was a whole lot of reasons, and this was a party to, but it wasn't the whole reason. There was a lot of other issues going on at the same time. 359 In relation to the "findings" about the use of a credit card to pay for vehicle expenses she said that she did not know what the card charges related to. 360 When asked why she joined in the Termination Resolution, Ms Rosas gave the following answer: And do you say - well, what do you say was the basis for that decision?---I think you would have to ask all the board directors about that. I'm asking you?---The basis that might be I felt that we were no longer confident to work with Ms Atkins. There was too much water under the bridge with it. There was - at this time there was these emails that were being sent across the country making defamatory remarks about a lot of board directors. There was a person named as being corrupt that had never had anything to do with NAAJA in her life, an Aboriginal lady from the community, it had blown right up. There was no trust anymore between the board and Ms Atkins. She had deserted her job. We had - the place was - the rumours started running around. We couldn't negotiate, we couldn't talk. There was a whole lot of reasons. The board made the decision that they didn't want to work with her anymore. I chaired the meeting. There was a couple of resolutions made. 361 When the discrepancy between that answer and the reason given in her affidavit was put to her, Ms Rosas described the KPMG Report and the BDO Report as "legit". The cross-examination continued: That were legit reports?--- - - - from the review. The KPMG review found that the - the agency hadn't grown - hadn't expanded service as to how it should. There was a lot of issues around that. There was the BDO report where there was - all of that stuff was handed to us, so, yes, there were, and the board agreed that Ms Atkins be terminated because we didn't see a relationship of trust being able to be developed again. We felt we had lost trust. There was also a number of emails that went out that defamed the board while we were trying to work through a process. 362 Ms Rosas accepted that the Allegations Letter contained representations about employment being ongoing that were inconsistent with the fact of the Termination Resolution having been made. She acknowledged that it contained a representation that Ms Atkins' response would be considered by the NAAJA Board. 363 Ms Rosas said that some of the matters raised in Ms Atkins' response were "fabricated". She referred again to Ms Atkins making defamatory statements about the Board. She said that she did not believe that the leasing arrangements were approved by NAAJA's former chairperson Mr Petterson. 364 Another example of non-responsiveness relates to the Vehicle Scheme: Well, it's Ms Atkins' evidence that the vehicles were purchased pursuant to a scheme that was authorised by the board?---I don't agree that the board authorised that scheme. You don't have any evidence at all, do you, that you can put before this court to prove that that was not so?---I don't have anything from the board to say the board authorised it. Well, that's not the question I put. The question I put is, you do not have any evidence to put before this court that proves that the board did not authorise the leasing scheme?---But I haven't seen any evidence to say the board approved it. You're saying to me that - - - Ms Rosas, I'm asking a specific question?---I don't have any evidence. 365 Ms Rosas maintained her evidence that at that time of deciding to send the Termination Letter she was not aware that Ms Atkins had commenced this proceeding seeking an injunction to restrain the termination of her employment. 366 In re-examination Ms Rosas confirmed that when reading Ms Atkins' correspondence of 9 January 2023 she knew that Ms Atkins had referred to the memo Mr Rossingh had presented in 2015 about the Vehicle Scheme.

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Ms Ellis 367 Ms Ellis was appointed a director of the Board for the Katherine Region in 2009 and was NAAJA's Deputy Chairperson in the period following the January Meeting. 368 In her affidavit, Ms Ellis criticized Ms Atkins' manner of minute taking and described meetings organised by Ms Atkins as "chaotic". She said that over time she had become concerned about the "level of control" Ms Atkins had over the Board's business. The only example given is an assertion that Ms Atkins "controlled the correspondence between NAAJA and regulatory bodies, such as ASIC, with regards to the Board". No specifics of the concern were given. 369 Ms Ellis said that in the June Meeting Ms Atkins' proposal for some staff members to receive a pay rise was rejected by the Board because it had not included any detail about the current salaries of the staff concerned. 370 Ms Ellis said that when she read the Complaint she formed the view that Ms Atkins should have dealt with the issues referred to in it in her role as the CEO. She said that Ms Atkins had not followed NAAJA's grievance policy and that the manner in which the Complaint was written was unprofessional. The grievance policy was not annexed to the affidavit and is not otherwise in evidence. 371 Ms Ellis described the Complaint as relating to "operational matters". She said that as part of its discussion at the First November Meeting "the Board decided that it was only fair that [Ms Evans] be made aware of the Complaint and have an opportunity to respond for natural justice". 372 Ms Ellis said that she joined in the Suspension Resolution because the Board was "weighing up" whether there was fraud. She said that Ms Rosas' "credibility" was at stake, that it was a serious matter and "we wanted it to be investigated straightaway". She said other concerns included "how wage increases had occurred". She said that the fact that Ms Atkins had made the Complaint was not a reason for voting in favour of the resolution. 373 In respect of the BDO investigation, she said: 35. I was involved in the decision for NAAJA to engage BDO to investigate the CEO's conduct. My reason for doing so was because of the signature issue, which was the most pressing issue at the time, but also because of HR matters that came out of the External Review. 36. I can't recall precisely how the Board set the parameters for the BDO investigation. 374 Ms Ellis said that at the January Meeting, BDO presented to the Board "the findings of its investigation, including that [Ms Atkins] had used NAAJA funds for personal loans to buy cars". She said "I felt physically ill about this". She said that she joined in the Termination Resolution because she formed the view that Ms Atkins was "dishonest". She said (at [44]): … To me, she had obtained benefits from NAAJA by deception. One thing that really annoys me is Aboriginal money being mismanaged and misappropriated. 375 Ms Ellis went on to say that the Complaint did not factor into her decision to join in the Suspension Resolution or the Termination Resolution. She said that she joined in the Termination Resolution so that the Attorneys-General could be notified before the termination took effect as a matter of courtesy to the Governments that funded NAAJA. 376 Ms Ellis said that she was involved in the decision to send the Allegations Letter to Ms Atkins. Said that she agreed that "the Board" should undertake that process "for reasons of natural justice". She said that she recalled reading a response Ms Atkins had provided in her letter dated 17 February 2023 but said that she cannot recall when she first saw the document and said nothing about any view she had formed about its contents. 377 Ms Ellis said that she attended the meeting with NAAJA's lawyers on 20 February 2023, then continued (at [49]): … By this stage we were adamant that we would terminate [Ms Atkins'] employment. We had given [Ms Atkins] enough time to respond to the Allegations Letter. We had handed material to the police. We were acting on the information as it came in and there was consensus among the Board. We were unanimous on [Ms Atkins'] termination. 378 Ms Ellis said that as at 20 February 2023 she was aware that Ms Atkins had brought a claim in the Fair Work Commission. She said that she was not aware of the commencement of this proceeding, but was aware that proceedings had been threatened. She said that the threat of proceedings was not a reason for her decision to terminate Ms Atkins' employment. 379 In cross-examination, Ms Ellis acknowledged that the Board's responsibilities included those specified in the Board Framework policy document, specifically managing risks and conflicts. However, she asserted that the Board could determine that the management of conflicts within the workplace should be undertaken at an operational level and that the management of conflicts was "ultimately the CEO's responsibility first". 380 Ms Ellis was a member of the Board and a member of the FAR Committee in 2015. She was taken to minutes of a FAR Committee meeting, which she attended remotely. She acknowledged it was a special purpose meeting to discuss a review conducted by NAAJA's then CFO Mr Rossingh about the Vehicle Scheme. She acknowledged that those present at the meeting had been given information about the Vehicle Scheme and its FBT implications. She told the Court that the Board had "uncovered" the Vehicle Scheme at an earlier time in 2015. 381 Ms Ellis was taken to the December 2017 Minutes at which management salaries were discussed. The minutes record Ms Ellis objecting to a resolution for the increase in management salaries, including the increase in Ms Atkins' salary, which had been approved by a resolution. Ms Ellis claimed to have no recollection of the Board meeting at which the pay rise was approved. 382 Ms Ellis agreed that she considered it desirable for there to be a formal tender process for the conduct of the external review ultimately conducted by KPMG, given that NAAJA was publicly funded. 383 On the topic of the Complaint, the cross-examination proceeded as follows: And you took the view, did you not, Ms Ellis, that Ms Atkins was wrong to have raised the complaint with the board, didn't you?---Not wrong. I'm saying she didn't follow our policies and procedures in regard to some of the complaints. Well, you identify the NAAJA grievance policy. You say she didn't follow it?---Yes. And you also say that there are matters there that she should have dealt with herself?---Yes. And it follows from that, doesn't it, that you were - you thought it was inappropriate that she had raised the complaint with the board?---I thought some of the complaints were very vexatious. Yes, and if you have a look at the complaint, it clearly - I can clearly point out to which ones. You thought it was inappropriate that she raised the complaint with the board, didn't you, Ms Ellis?---Not inappropriate. I'm saying that the complaint and how we received it and - and in that format, was not up to standard, to be honest. Yes?---And what you expect of a CEO to do. Yes. So you were - you thought it was inappropriate that the CEO would raise the - - -?---No, I did not say inappropriate. You thought it was inappropriate that the CEO would raise a complaint in that form, with that content, with the board?---Yes, I did. 384 In relation to her complaints about procuring the services of an independent scribe for Board meetings, Ms Ellis said that that problem had been addressed by the time of the First November Meeting. When asked why she had included that issue in her affidavit she said that it was included to explain some historical frustrations about the way in which Ms Atkins had organised Board meetings. 385 Ms Ellis was taken to her email to other directors of 13 November 2022, raising things that she felt needed "following up", including: • When can we expect an action item and timeframe for the CEO contract extension conflict? • When and how will the grievance submitted by CEO against CFO be addressed - reading through these complaints, much of this relates to the CEO not following our grievance process, how will this be addressed. 386 In cross-examination, Ms Ellis gave this explanation for what she meant: You're talking about - - -?---Yes. - - - her failure to follow the process?---There were red - yes. Yes. Because that was what was looming in your mind when you read the complaint. She hadn't followed the process?---When you look at that complaint letter, you would be concerned too. There were red - there were red flags everywhere in that complaint, and most of it, I took personally - - - Yes?--- - - - as someone that's major staff in my workplace that she lacked the insight and self-awareness of what her role was in those complaints as CEO. Yes. I mean, well, that just confirms, doesn't it, that you took an adverse view of what it is that she had put in that complaint?---I took a - I took a - look at the complaint, and you tell me any normal person would not say, 'Hey. What's going on here? There's some red flags happening.' 387 Ms Ellis later said that the allegations in the Complaint were lacking in detail and that her view when she saw that document was that "this is about quantity, not quality of complaints. These are not complaints putting it in a dot point like that". However, she then acknowledged that matters raised in the Complaint justified the Board asking Ms Evans for her response. She acknowledged that she had later formed the view that Ms Evans had not followed the correct process by putting an offer on a property in Katherine without the Board's approval. She also acknowledged that Ms Atkins' complaint about Ms Evans not providing her with IT contracts valued at $1.4m also raised a "red flag" for her. 388 When asked whether her view that the Complaint was vexatious was on her mind when she suggested content for the BDO investigation, Ms Ellis replied "a little bit of that, little bit of the KPMG report ... and [Ms Atkins] actions that she took". The cross-examination continued: So a number of things, including that one?---Yes. And - and - and - - - Yes?---It was - it was really - we didn't have a working relationship with her anymore. There's just no trust in her, no confidence in her. 389 Ms Ellis agreed that that was the sentiment that she expressed in the email she circulated on 14 December 2022 setting out her concerns. She said that the view that there was not a tenable working relationship between the Board and Ms Atkins was shared by "pretty much the whole board". She agreed that as at 3 January 2023 when she signed the Terms, she already held the view that the relationship of trust and confidence between the CEO and the Board had failed. She denied that was because of the content of the Complaint. 390 Ms Ellis said a number of times that the Board "never got an opportunity" to talk to Ms Atkins, including because Ms Atkins had "isolated herself from us" and "we had to deal with her through lawyers". There was then this exchange: You're not suggesting for a moment, are you, that you could not have asked Ms Atkins to provide a response to these matters at the time that you formulated these terms of reference?---Well, yes, it was the board - it was the board's thing that no - I think, by this stage, that we had lost confidence and trust. You know, one of the main mitigating factors of terminating was the loss of confidence and trust in the CEO. You had already lost trust and confidence before you commenced the investigation?---With the review and with the way she was - she had - she started making accusations to us that went - that was really - a really intense smear campaign against the board. She had sent it to ICAC. She had sent it to the AG. She had sent it all around Australia. She had sent her things to CEOs and politicians. We felt really under threat that we could not have - enter into a - a - a effective communication with her at that stage, yes. 391 Ms Ellis agreed that at the First November Meeting, other directors had raised allegations about Ms Atkins, but she could not recall the context in which they were made. She acknowledged that at that meeting she had raised the issue of vehicles being purchased with NAAJA funds under a scheme that ended in 2015. She was evasive in her responses as to her reasons for raising the topic, asserting repeatedly that she didn't know the "context" of the conversation. 392 Ms Ellis said that she had read the Ward IT Report before the Second November Meeting. She accepted that the effect of the Report was that it seemed that Ms Rosas' electronic signature had not been used on the Contract Extension Letter. She acknowledged that the Suspension Action represented to Ms Atkins that she would have an opportunity to respond to the Board's concerns referred to in it. 393 Ms Ellis acknowledged she was aware that Ms Atkins had been required to deliver up her laptop to a process server. She confirmed that she regarded that demand to form a part of the investigation into whether Ms Rosas' signature had been forged. She acknowledged that between the suspension of Ms Atkins' employment and the demand for delivery up of the laptop NAAJA had not obtained any positive evidence to prove fraud on Ms Atkins' part, but said that the absence of records indicating that Ms Rosas had been asked to sign the Contract Extension Letter added weight to Ms Rosas' claim that she had not in fact signed the letter. It was put to Ms Ellis that by the time the Terms were prepared the signature issue had fallen away. She responded that the issue was not included in the priority item because "the priorities had changed". She said that the instructions to BDO on that issue were given for the purpose of seeing whether Mr Ward had "missed anything". 394 Ms Ellis said that she had known Ms Rosas for a very long time and that she accepted prima facie Ms Rosa's assertion that she had not signed the Contract Extension Letter. 395 When asked again about the reasons for the Suspension Resolution, Ms Ellis said that at the time of the suspension "there were other things in play at that time, as well". She mentioned the KPMG Report, "HR stuff" and nepotism. She said there "there was a lot of issues … coming in every day". She did not accept the proposition that Ms Atkins was suspended solely because of the allegation that her contractual and salary arrangements had been improperly obtained. When asked whether it was now her evidence that the reasons set out in the Suspension Action were not a complete statement she said "I suppose, looking at that now … you would have to say that, yes, there were other things happening". 396 When it was put to Ms Ellis that the allegations underpinning the BDO investigation were entirely new, she said that "what came into play was Ms Atkins' behaviour, as well, because during this period of time, she was ringing up board members and threatening them as well", she referred to allegations Ms Atkins had made in the context of the Fair Work Commission claim and said "[t]he working relationship had broken down. There was no trust. There was no confidence". She went on to say that Ms Atkins "gave us no opportunity to talk to her ... except abusing people" and that "it's basically [Ms Atkins'] own behaviour that stopped her helping herself". 397 Ms Ellis said that the investigation tasked to BDO was not put out to tender because "we had to make a fast decision" and that NAAJA wanted to address some of the "issues" urgently. 398 Ms Ellis said that that she self-nominated to participate in an interview with KPMG, which took place by telephone, but claimed to have no recollection of what she said. 399 Ms Ellis denied that she had formed the view that Ms Akins should be dismissed before she received the BDO Report. She described the tabling of the BDO Report as "the decider". She expressed frustration that NAAJA has been constantly asked by Ms Atkins lawyers to provide information and documents relating to the Allegations Letter. She said that she and others were asking "when are we going to get answers to our questions?". 400 Ms Ellis described Ms Atkins' response to the allegations dated 17 February 2023 as "just the same old deception", "misleading" and "lies". 401 Ms Ellis confirmed that her view that Ms Atkins was dishonest was based on the information contained in the BDO Report. She said that the information provided about the purchase of vehicles by Ms Atkins under the Vehicle Scheme showed "a pattern of dishonesty". When asked to elaborate, she said that Ms Atkins was not being truthful when she said that the Vehicle Scheme had been approved by NAAJA's former chairperson Mr Petterson. She said that Mr Petterson would not have known how many cars had been purchased and that it was a "pun on words" to say that he had approved the Vehicle Scheme. 402 On several occasions Ms Ellis denied that she had already made up her mind to terminate Ms Atkins both before the Termination Resolution and the later decision to send the Termination Letter. However, she later acknowledged that nothing Ms Atkins could have said would have persuaded her, and that she had every reason for her mind to be fixed "because of the deception around these leasing agreements". The following exchange then occurred: Your mind was fixed on the notion that Ms Atkins had engaged in misconduct over a period of time?---No. And your mind was fixed on the idea that was engage - she had engaged in misconduct over a period of time, including because of the complaints she made on 7 November?---No. Absolutely not. That had nothing to do with any of it. Like I said, there was a HR grievance process. Yes. Just another black mark against Ms Atkins, wasn't it?---That she should have known how to address. In the scheme of things, that complaint then was really, three, four, fifth down the line. 403 Ms Ellis said that when the Board discovered the Vehicle Scheme in 2015 it "went berserk" and "[t]hey wanted everybody sacked". When it was put to her that she had not disclosed that in her affidavit she said "[b]ecause it's - I didn't know how". 404 In relation to the February Meeting, Ms Ellis agreed that she became aware that Ms Atkins had commenced this proceeding when she was informed of it by Mr Kellock. She acknowledged having some basic understanding that Ms Atkins had asked this Court for an order to stop NAAJA from dismissing her. She then volunteered the following: Q: I'm not asking you to give a legal understanding. I'm asking ... A: All I knew, that at that stage, I had had enough Q: Yes, had enough A: And - and a smear campaign against us and all the allegations against us … being corrupt had started. I mean Q: Yes. You had had enough? A: I mean, you know, we had to send to two cease and desist letters to her lawyers to stop her from doing it. Q: Yes. You had had enough, and you wanted her out, didn't you? A: Yes, absolutely 405 Ms Ellis repeated that she didn't know what an interlocutory injunction was, and that she didn't know what Mr Kellock was talking about when he said the interlocutory application would disappear. She then repeated that Ms Atkins was "smearing" directors, that "we had lost confidence", that the relationship had "totally broken down" and that there was "no trust". The cross-examination concluded: That's right. And certainly you didn't want an order from this court keeping her in the job, did you?---Was - it's neither here, nor there, is it, at the moment? I put to the question to you. On 20 February, you didn't want an order from this court keeping her in the job, Ms Ellis?---I don't know what you mean, to be honest. It's a pretty clear question. What's the answer?---I don't know. We didn't want an order made against us to keep her in the job. Yes. That's right?---How - how can you say that when we're here? Let's just focus on my question?---That's my understanding. I don't know - it's just going around and around in circles. So I just don't know what he's saying.

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Ms Garlett 406 Ms Garlett was appointed as a director of NAAJA in 2019 for the Katherine Region. She was NAAJA's Deputy Chairperson from February 2020 before resigning in early 2023. 407 In her affidavit, Ms Garlett briefly described what occurred at the First November Meeting. She referred to Ms Rosas denying that she signed the Contract Extension Letter. She said that she was tasked with briefing Mr Ward to investigate the issue "and locate an email in regards to the Contract". She did not recall reading the Ward IT Report. She referred to the Board discussing the Complaint but gave no evidence about the content of the discussion other than to say that it was decided that Ms Evans should be given a chance to respond to it. 408 Ms Garlett said that she did not recall seeing Ms Evans' response to the Complaint. She said that her main concern at the First November Meeting was the contract signature issue. 409 Ms Garlett referred to the Suspension Resolution made at the Second November Meeting. She said that she joined in the resolution because she thought that there would be a conflict of interest if Ms Atkins and Ms Keightley were to remain in the workplace while the contract signature issue was being investigated. She said that the Suspension Resolution was not made because of the Complaint. 410 Ms Garlett referred to the January Meeting. She said that Mr Taziwa had told the Board that Ms Atkins had "used NAAJA as a loans body or a salary sacrifice vehicle" to purchase nine cars. She said that she was gobsmacked and shocked about what she had learned about the cars. She described Ms Atkins as "using money that didn't belong to her". Ms Garlett said that her decision to join in the Termination Resolution was "not because [Ms Atkins] made a complaint against NAAJA" or because of any threatened legal proceedings. 411 Ms Garlett said that she seemed to recall having discussions about sending the Allegations Letter but was not involved in drafting it. She said that she participated in a decision not to give Ms Atkins more time to respond because she considered that Ms Atkins had already had plenty of time to do so. She said that she knew that Ms Atkins had responded to the Allegations Letter but said she did not recall seeing it. She said that she was aware that Ms Atkins had been sent a letter terminating her employment but said that she could not recall if she was consulted about the timing of it. She said that "in any event' her reason for supporting the termination was not because of any threat of legal proceedings, but because of the findings of Mr Taziwa, who she described as an "external auditor". 412 In cross-examination Ms Garlett said that at the Second November Meeting Ms Rosas had told the Board that NAAJA did not need to prove whether or not the signature was "correct" but rather that Ms Atkins had to prove that it was. When asked whether it followed that Ms Atkins should have been asked how the signature came to be there, Ms Garlett said "I think that opportunity was given" and that a letter was sent to Ms Atkins giving her the opportunity to respond. She could not say when that was done. She later repeated that Ms Atkins had the opportunity to respond to the allegation Ms Rosas had made and that she was "sure there was a letter somewhere". After reviewing the Allegations Letter, Ms Garlett acknowledged that Ms Atkins had not been given any opportunity to respond to the allegation Ms Rosas had made about the signature. 413 When asked about the Complaint, Ms Garlett said that she needed further clarification by way of evidence of the allegations made about Ms Evans. She said that she thought that as the CEO Ms Atkins would have been able to deal with the issues with staff. She said that when she read the Complaint during a break in the First November Meeting she did not know whether the allegations made in it were true. She agreed that it raised issues of concern and "red flags". 414 Ms Garlett said that she understood the email correspondence sent by Ms Ellis to directors on 13 November 2022 to be suggesting that the Board should discuss what action should be taken against Ms Atkins for her failure to follow NAAJA's grievance processes in relation to the matters she had raised in the Complaint. 415 Ms Garlett acknowledged that she had signed the Terms. She said that she did not write the document, and nor did she know who did. She said that it was sent to her by email to sign and that she had returned it by email. She acknowledged that she understood the Terms to raise allegations of serious impropriety against Ms Atkins. The cross-examination continued: And can you tell the court what steps, if any, that you took to ensure that - well, to invite Ms Atkins to respond to these allegations?---I can't recall. When you say you can't recall, is it the case that you can't recall whether you took any action yourself?---Not myself. It was a board decision. And as a member of the board, did you encourage the board to provide this document - or these allegations to Ms Atkins and invite her response?---I can't recall. 416 Ms Garlett agreed that the email sent by Ms Ellis to other directors on 15 December 2022 about the Complaint reflecting on Ms Atkins' performance and her ability to address issues accurately reflected her own views about Ms Atkins' conduct in bringing the Complaint to the Board. 417 Ms Garlett acknowledged that there was no evidence to support the allegations listed as priority items in the Terms at the time that she signed them. She said "[t]hat was the reason for the investigation". The cross-examination continued: Because you didn't have the evidence and you wanted to find it out?---Yes. And you wanted to find it out, didn't you, Ms Garlett, as a member of the board to use it to damage Ms Atkins' standing?---No. Because you didn't have the evidence prior to January 2023 that could support that she had done anything wrong?---We needed evidence. 418 Ms Garlett said that she shared the view expressed in Ms Ellis' email of 14 December 2022 that it was not tenable that the Board could have a working relationship with Ms Atkins. She acknowledged that she held that view even though she did not have any evidence at that time to support any wrongdoing by Ms Atkins. She agreed that the Board decided to undertake the BDO investigation to find evidence that would support an end to the working relationship. She denied that one of the reasons she held an adverse view about Ms Atkins was because she had made the Complaint. 419 Ms Garlett acknowledged that the Terms required BDO to make findings about whether Ms Atkins had intentionally breached NAAJA's policies or procedures, and that she understood that to be their meaning at the time she signed the document. When asked to explain how that could occur without giving Ms Atkins an opportunity to respond she said "I can't answer that". When asked whether that was because she didn't know, she said "I don't have an answer", "I don't know" and "I have no idea". 420 When asked what Mr Taziwa said at the January Meeting about the Vehicle Scheme, Ms Garlett gave vague responses. She referred to the events occurring "before my time" and to there being a lack of transparency. She accepted that what occurred between 2010 and 2014 was something that Ms Atkins should be asked about. When asked whether she thought of saying to the Board that Ms Atkins should be asked about it, she said "I didn't think". She agreed that she had not thought to ask what the Board minutes from 2015 said. When asked whether she had turned her mind at all to the question of whether Ms Atkins had intentionally breached NAAJA's policies she said "no". Ms Garlett then agreed with the proposition that the information contained in the BDO Report led her to conclude that Ms Atkins had engaged in acts of impropriety supporting a resolution to terminate her employment. 421 Ms Garlett said that at the time that the BDO Report was tabled, she had assumed that Ms Atkins had been given an opportunity to respond to the allegations. She said she assumed that would have been done by Ms Rosas. When asked whether Ms Rosas had said at the meeting that she had done that, Ms Garlett said "I can't recall". She then agreed that Ms Rosas had not said that at all. 422 Ms Garlett later acknowledged again that even before she signed the Terms she had reached the conclusion that a relationship between Ms Atkins and the Board was untenable. She denied that a part of the reason she felt that way was because Ms Atkins had made complaints about Ms Evans that she considered to be inappropriate. 423 In re-examination Ms Garlett was asked why she held the view in mid December 2022 that it was untenable for there to be a working relationship between the Board and the CEO. She said that she was not happy with the way that Ms Atkins took minutes of Board meetings. In addition, she said that she was concerned that Ms Atkins appeared rushed all the time and that she was wearing many hats, including by being "on other organisations as well. I can't really say offhand what - but some of them were national bodies".

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Ms Taylor 424 Ms Taylor said that she recalled a conversation she had with Ms Rosas about the signature issue, but could not say whether the conversation occurred before or at the January Meeting. She said that Ms Rosas had said that "there was a document giving [Ms Atkins] a payrise", which Ms Rosas claimed not to have signed. She said that she thought "this can't continue, you can't give yourself a pay-rise - it has to come through the Board". 425 Ms Taylor said that she attended the January Meeting as a proxy. She said that at the meeting Ms Rosas had mentioned the Complaint. She said that Ms Rosas had sent her a copy of the Complaint by email some time before the January Meeting, but said that she did not know anything about the matters raised in it. She said that the Board was presented with information about Ms Atkins' "use of NAAJA money and about [her] giving herself a pay rise". 426 She said that the Board also had a presentation from an investigator about Ms Atkins "not providing receipts for things", "purchasing 9 cars" and "misusing her NAAJA credit card". She said that the investigator "gave the Board a rundown of everything he had found that [Ms Atkins] had done wrong." 427 Ms Taylor said that she joined in the Termination Resolution because she believed that Ms Atkins was stealing from NAAJA's clients. She said "it is not her money to give herself a payrise and otherwise do what she did" and because she had bought nine cars, including for family members. She said that when she voted in favour of the resolution she was not thinking about the Complaint. 428 Ms Taylor said that at some point after the January Meeting Ms Rosas had called her and read out the contents of the Allegation Letter and said that she was going to send it to Ms Atkins. She said she agreed it should be sent because she wanted Ms Atkins "to show cause why NAAJA shouldn't terminate her because of [BDO's] findings." She said at that time she agreed, she was not thinking about the Complaint. 429 Ms Taylor said that did not see the Termination Letter before it was sent, but its contents were read to her by Ms Rosas beforehand. She said that she had not been asked for her opinion about that letter. 430 Ms Taylor said that she could not recall when she first heard that Ms Atkins was going to bring legal proceedings against NAAJA, but understood from things she had seen on the television that Ms Atkins had lawyers and that "she was going to fight". She repeated that she was not thinking about the Complaint when she joined in the Termination Resolution or when she agreed to send the Allegations Letter. 431 In cross-examination Ms Taylor's evidence about when she first became aware of the BDO investigation was unclear. She said that she was first told that Ms Atkins was the subject of an investigation by BDO at the January Meeting, she then said February, then said she could not recall. 432 She said that her affidavit evidence that she had been sent a copy of the Complaint was wrong, and that Ms Rosas had only told her about it in a telephone conversation. She said she it wasn't in an email because she hand gone back and looked and couldn't find it. She said she did not read the Complaint before the January Meeting. 433 Ms Taylor said that the information provided at the January Meeting about wrongdoing was "just verbal", that no document had been provided by BDO and that she hadn't seen anything in writing. She later said that she had been provided with "paperwork from [Mr Taziwa]" saying what the findings were, but that was the only document she recalled receiving. She said that she had relied on what was said. 434 Ms Taylor then gave the following evidence about the reasons stated in her affidavit for joining in the Termination Resolution: … you say that Ms Atkins had bought so many cars, including for members of her family, including some of her children; can you see that?---Yes. And you say that that as [sic] one of the reasons that you voted in favour of terminating her employment; is that right?---No, that's not right. I voted in favour to terminate her because of the money. The money has been spent and used. Right. Well, the money you thought had been spent and used to purchase cars for members of her family, including some of her children; do you agree?---I agree, but it was only told to me. I didn't see anything in writing. Okay. So you were told - - -?---Yes. Okay. Who told you that?---I don't remember. Was it [Mr Taziwa] or was it a member of the board who said that cars had been purchased for her family, including her children?---No. Can't remember?---No. 435 When asked whether she had been told that Ms Atkins had purchased cars for members of her family she said that she did not remember. She confirmed she was not in attendance at the February Meeting.

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Ms Assan 436 Ms Assan was appointed as a Director of NAAJA for the Miwatj Region in 2019. She did not attend the First November Meeting. She said that at the Second November Meeting Ms Rosas told the Board that the signature on Ms Atkins' most recent contract was not hers. She said that she voted in favour of the Suspension Resolution while the signature issue was being investigated because she thought it "could be fraud". 437 Ms Assan said that at the time of the Second November Meeting she had been made aware of the Complaint. She said that she had not seen a copy of it and was not aware of the nature of the complaints made. She said that she did not see any response Ms Evans had made to the Complaint and that the Complaint did not form a part of her decision to join in the Suspension Resolution. 438 Ms Assan attended the January Meeting. She said: 16. At the January Board meeting, an investigator, [Mr Taziwa], came and presented his findings from an investigation. He showed the Board some documents on a screen. There were findings about [Ms Atkins] using her NAAJA credit card for purchases with no receipts and without signing a document she was supposed to sign if she didn't have a receipt for a purchase. There were also some purchases for things like tyres and services that weren't for NAAJA property. 17. There was also a finding about vehicles [Ms atkins] had purchased using NAAJA funding money. Some she had paid back and some she had cashed in her leave to pay for. 18. I was shocked by the findings. I couldn't believe it. 439 Ms Assan said that she joined in the Termination Resolution because she thought that Ms Atkins had engaged in fraud and misappropriation. She said the fact of the Complaint was not a part of her decision to join in the Termination Resolution. Following the January Meeting she had no other involvement and saw no further correspondence relating to Ms Atkins' employment. 440 In cross-examination, Ms Assan confirmed that she thought that there was fraud concerning Ms Rosas signature because that is how Ms Rosas had described it. She said she could not remember whether she had received the Ward IT Report. She recalled something being said by Ms Rosas to the effect it was not her signature on the Contract Extension Letter and that Ms Rosas had not provided any evidence. She agreed that she thought it could be fraud because of what Ms Rosas has said. 441 Ms Assan said that she was unsure whether any forensic report about the signature was ever produced at that time or at any later time. 442 When asked about Mr Taziwa's presentation at the January Meeting, Ms Assan recalled being showed documents on a screen about the use of Ms Atkins' credit card. When asked whether Mr Taziwa had said that the expenses incurred on the card were for Ms Atkins personally, she said no. When asked how she knew that the expenses were personal she said "Well, it was her credit card". After repeated questions on that topic, she said "I didn't know. Well, yes. Just assumed, I suppose". She confirmed that she made that assumption because she understood BDO to be an independent investigator telling her there had been purchases without receipts. 443 Ms Assan said that the information in the BDO Report about the purchase of vehicles involved wrongdoing because of the number of vehicles purchased and because they had been improperly acquired using NAAJA funds. She said that she concluded that Ms Atkins had improperly acquired NAAJA funds to buy the vehicles. She said again that she drew her conclusions because she understood Mr Taziwa to be an auditor. Ms Assan confirmed that it had occurred to her to ask Ms Atkins views, but she didn't say anything. She agreed that Ms Atkins could have explained things had she been asked. She agreed that the shock and disbelief she expressed in her witness statement was based entirely on assumptions on her part, which could have been cured by asking Ms Atkins. She accepted that was unfair to Ms Atkins. 444 Ms Assan said that when she attended the January Meeting she didn't know that Mr Taziwa was going to be there and that she had never been introduced to him before. She confirmed that she had joined in the four resolutions because Mr Taziwa was a person who she understood to be an independent auditor of NAAJA's finances. She said that the presentation was the first time she had been given information suggesting Ms Atkins had done something wrong.

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Ms May Rosas 451 May Rosas was appointed a director of NAAJA in 2021 for the Katherine Region. She did not attend the First November Meeting. 452 In her witness statement, she confirmed that she attended the Second November Meeting. She said that there was a question mark around the validity of Ms Rosas' signature on a letter of offer. She said that she voted in favour of the Suspension Resolution so that the matter could be investigated "without any complications or conflict". May Rosas said that she was aware of a conflict between Ms Evans and Ms Atkins but had not seen the Complaint at that time and did not know exactly what it was. She said that the Complaint was not a reason for joining in the Suspension Resolution. 453 In relation to BDO, May Rosas said "[a] financial auditor came and investigated operational and financial matters of NAAJA". She said that she was not involved in the investigation. She said that an "auditor" had presented the findings of the investigations, "about practices of [Ms Atkins] that were not healthy for the organisation". She referred to Ms Atkins purchasing vehicles "for herself and family members with NAAJA money" and using a corporate credit card for personal things and without providing receipts. She said that she was alarmed by the findings. May Rosas said that the Complaint had nothing to do with her reasons for supporting the resolutions at the January Meeting, including the Termination Resolution. She said that her reasoning was "based around the findings from the Investigation" and described herself as making a "professional decision in order to uphold the organisation and its credibility and to deal with incompetent leadership". She said that she first became aware that Ms Atkins was threatening to take NAAJA to court at the January Meeting. She said that at some point she was "on a telephone hookup with Boad members where there was talk about termination" but gave not detail about when that occurred, who else attended or what was discussed. She said that she thought that there was sufficient evidence to terminate Ms Atkins' employment "to enable the organisation to try and turn over a new leaf and move forward". 454 In cross-examination, May Rosas confirmed that at the Second November Meeting Ms Rosas had alleged that someone must have forged her signature on the Contract Extension Letter and that Ms Rosas has also said that it was for Ms Atkins to prove that the signature was not forged. She agreed that she voted in favour of the Suspension Resolution based on Ms Rosas' word that she hadn't signed it. 455 May Rosas confirmed that she had become aware of the Complaint, and described it as a managerial and internal matter, not something for directors to become involved in. She confirmed it was her view that by making the Complaint, Ms Atkins was asking the Board to do her job for her. She confirmed that the Complaint reflected poorly on Ms Atkins' ability to do her job, and that she had formed that view before the January Meeting. 456 The cross-examination continued: Okay. And did you have that in mind on 12 and 13 of January when you voted to terminate Ms Atkins' employment, that she wasn't doing her job properly?---I felt I lost the confidence and - and matters needed to be dealt with in - - - Yes. And what - - -?---In the appropriate way, sorry. Sorry, continue, please, I cut you off?---Yes. This matter needed to be seriously looked into and the board - we have a responsibility to ensure that proper processes and procedures take place. Okay. And one of - so you said just then that you had in mind, on 12 and 13 January, that you had lost confidence in Ms Atkins. One of the reasons you lost confidence was because she had put this complaint about Ms Evans to the board where, really, it was her job to deal with those issues?---Exactly. 457 May Rosas said that it was the "full board" that had engaged Ms Taziwa. 458 May Rosas confirmed that she had relied on what Mr Taziwa had told her at the January Meeting, that she considered him to be an independent investigator and that his independence was important. She said there was discussion by the Board about the number of vehicles purchased by Ms Atkins and she believed some Darwin based directors when they said that they had seen one of Ms Atkins' family members driving one of the vehicles referred to in the BDO Report. She said she did not recall Ms Rosas giving any other documents to the Board at the January Meeting.

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Mr Woodbury 459 In his affidavit, Mr Woodbury said that in early January 2023 he received a telephone call from a NAAJA employee asking if he would attend the January Meeting in place of a director who could not attend. He said that he signed a consent form to act as a director and then attended the January Meeting. He said that he recalled a representative from BDO presenting findings, but could not recall all of them. He did recall that "some were about mismanagement with money". He said one of the findings concerned the purchase of cars under a leasing scheme with no interest payable. He said he was shocked by the findings and that there was a lot of anger in the room. He said that he voted in favour of the Termination Resolution because he considered that it was unfair that Ms Atkins had mismanaged NAJAA's funds given her position and what the organisation stood for. 460 Mr Woodbury said that at some point during the January Meeting there was discussion about the Complaint, but he did not participate in that part of the discussion. He said he was aware of the Complaint before he attended, but didn't have any information about it. 461 Mr Woodbury said that he later learned that Ms Atkins was threatening to sue NAAJA, but said he did not know that at the time of the January Meeting. 462 In cross-examination, Mr Woodbury confirmed that prior to the January Meeting he had no involvement in the matters that were discussed there, and that he first learned of them through the BDO Report. He said that Ms Rosas had introduced Mr Taziwa as "here to perform an audit in regard to the matter that we're here for". He said that Ms Rosas did not present any other documents to the Board. 463 Mr Woodbury said that at the January Meeting Mr Taziwa had said that Ms Atkins had breached NAAJA's policies by purchasing cars under the Vehicle Scheme, that she had engaged in impropriety, and that she had used NAAJA's funds without permission. He said that he concluded from the BDO Report that the Board had not approved the Vehicle Scheme. 464 He said that whilst he confirmed the subject of the Complaint being raised at the January Meeting he could not recall who raised it or what was said about it.

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Ms Shannon 465 NAAJA now accepts that Ms Shannon was not a validly appointed director or alternate director at the time that the adverse actions were taken. Her evidence nonetheless remains relevant insofar as it informs my assessment of the words and conduct of others. 466 Ms Shannon has family connections with Ms Rosas and has previously worked with her. She said that she learned of Ms Atkins' suspension from Ms Moore who updated her on what occurred at the Second November Meeting. She said that "at some point" Ms Rosas had told her "about the document giving [Ms Atkins] a salary increase and said it wasn't her signature on it". She said that she understood that Ms Atkins had been suspended because of "the suspected forgery of the signature". 467 Ms Shannon said that at the January Meeting Mr Taziwa "presented to the Board about NAAJA money that [Ms Atkins] had spent on her friends and family members". She said that there was a list setting out how much money was spent, and that she was shocked at how much money was misused. She said that she felt gutted. She said that she voted in favour of the Termination Resolution because she did not want Ms Atkins coming back into the office "because of how much money she had misused" and because "[m]oney was spent on her friends and family members and that really hurt me". 468 Ms Shannon said that she was involved in the decision to send the Allegations Letter to Ms Atkins. She said (at [25]): … I agreed that NAAJA should send this letter … so NAAJA was properly protected and to show [Ms Atkins] that NAAJA was serious about finding out what had happened. 469 She said that she could not recall whether she had seen the response that NAAJA had received from Ms Atkins. She continued (at [28]): After the Board had been through the process with the allegations, I agreed that the Board should 'cut [Ms Atkins] loose'. I was concerned about how long the process had taken and that NAAJA was spending a lot of its money paying [Ms Atkins] when she was suspended. This didn't feel right to me. I thought we needed to put a stop to it. 470 Ms Shannon said she was aware of the Complaint but could not say when she first found out about it. She said that her decisions had nothing to do with the Complaint but were about Ms Atkins "taking money out of the organisation". She said that she was aware that Ms Atkins had threatened to take NAAJA to court, but that her mind wasn't on legal proceedings when she voted. She said that her mind was "on the facts and figures that the Board had on financial matters and what [Ms Atkins] was doing to the organisation". 471 In cross-examination, Ms Shannon said that the matters to be investigated were decided by "the Board" and that she was there when the allegations were formulated. She said: … it was a meeting that we wanted to investigate further, or - you know, financial audit, because it started from the - the signatory - the forged signature, and that's why we're thinking we've got to look further into this, and we talked - I didn't view this document, but just hearing from others that he was a good person to - to work with, [Mr Taziwa] and his company. Okay. Who told you that he was a good person to work with? Can you remember?---I - I can't remember who it was. 472 Ms Shannon was unable to say how the subject matter referred to in the Terms had arisen and then said that the information about those things came from Mr Taziwa through the BDO Report. She then agreed that the first time that she became aware of an allegation that Ms Atkins had used NAAJA funds to buy vehicles was when the BDO Report was presented at the January Meeting. 473 She said that she considered Mr Taziwa to independent, agreed that his independence was important to her and said that she had relied on what he told the Board. 474 When asked whether Mr Taziwa had said that Ms Atkins had spent money on friends and family members, Ms Shannon responded "yes". When asked who on the Board had discussed it, she said "[m]ost of us were saying that, because we had the report that was given to us". When it was put to her that the BDO Report did not say that Ms Atkins had given cars to her family, she said "I don't remember. I just - not clear". She said that she could not recall any director saying that Ms Atkins had given cars to family members. 475 Ms Shannon said that the Complaint was raised at the January Meeting.

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Mr McLennan 476 Mr McLennan was a director of the NAAJA Board for the Darwin Region between 2007 and February 2023. 477 Mr McLennan said that KPMG were engaged to conduct their review because NAAJA's work had expanded but it was still operating as though it were a small entity. He that KPMG had presented its review findings to the Board at a meeting on 9 and 10 December and that he agreed with those findings. 478 He said that at the First November Meeting Ms Rosas raised the issue of Ms Atkins' Contract Extension Letter, said that the signature on it was not hers and said that she was going to get an original of the document. He said that the Board decided to have NAAJA's IT team look into the issue. Mr McLennan said that he did not see the Ward IT Report until he became involved in this proceeding. 479 Mr McLennan said that the Complaint was discussed at the First November Meeting and that the Board decided to give Ms Evans a chance to respond to it. He said that prior to this proceeding he had not seen a copy of Ms Evans' response to the Complaint. 480 Mr McLennan said that at the Second November Meeting he voted in favour of the Suspension Resolution to "stop any interference" with the investigation into the validity of the signature on the Contract Extension Letter. He denied that the Complaint was a reason for voting in favour of the suspension. He said that there was a discussion at the Second November Meeting about obtaining forensic evidence about the signature issue, and that there had also been additional allegations raised about Ms Atkins by other Board members. They included allegations about the purchase of vehicles using NAAJA funding and the misuse of a credit card. 481 Mr McLennan said that he had not seen the Terms prior to this proceeding. 482 Mr McLennan referred to findings presented by Mr Taziwa at the January Meeting. He described his understanding of the findings and said that he saw the finding about the use of NAAJA funding to purchase personal vehicles to be a problem because NAAJA wasn't a finance company and it was not a proper use of its funding. 483 He said that he seconded the resolution to provide the BDO Report to NAJAA's lawyers because he thought that NAAJA "needed more advice and further evidence of any wrongdoing". He said that he voted in favour of the information being provided to the police, but did not vote in favour of the Termination Resolution. He said that he had not seen a copy of the Allegations Letter prior to this proceeding, but also said that he was part of a decision "made by the Board" to ask Ms Atkins for her response to the "allegations" in the BDO Report. He said that he had never seen any response from Ms Atkins, and had not attended any meeting with NAAJA's lawyers about terminating Ms Atkins' employment. 484 In cross-examination, Mr McLennan said that it was Ms Rosas who told him what was in the Complaint. 485 He confirmed that at the Second November Meeting Ms Rosas had alleged that her signature had been forged and that she had also said that she had received advice to the effect that it was for Ms Atkins to prove that the signature was hers. 486 Mr McLennan was taken to the Suspension Letter that he had signed, specifically the paragraph asserting that NAAJA would be in touch with Ms Atkins as soon as possible regarding its more specific concerns and that she would be given an opportunity to respond. He said that he could not recall whether Ms Atkins was ever given that opportunity. When asked how Ms Atkins would prove that the signature was Ms Rosas if she was not given that opportunity, he asked for the question to be repeated and then, after a long pause, acknowledged that he did not have answer to the question. 487 Mr McLennan said that it was Ms Rosas who had made the additional allegations about Ms Atkins at the Second November Meeting concerning the vehicles and credit card. 488 He said that at the January Meeting Ms Rosas had provided no documents to the Board. He said that he believed the findings presented by Mr Taziwa because he considered him to be independent.

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Mr Hill 489 Mr Hill was appointed as a director for NAAJA in 2020 for the Katherine Region. 490 In his affidavit, Mr Hill referred to Ms Rosas raising the signature issue at the First November Meeting. He understood Ms Rosas was making a serious legal allegation. He said that he told the Board that the issue needed to be investigated so that it could be sorted out from a legal standpoint. 491 He said prior to the First November Meeting Ms Rosas had forwarded to him Ms Atkins' email attaching the Complaint. 492 He said that he didn't think it was something he should be involved in and that anything to do with operational matters should have been handled by the CEO and Human Resources. He said that the things raised in the Complaint "seemed to be one person slandering another, rather than engaging in articulate criticism" and that it should have been done in a more professional way. 493 Mr Hill said that at the Second November Meeting, he voted in favour of the Suspension Resolution because it seemed fair to him. He said that he "wanted to get a resolution on some of the findings, rather than just accuse [Ms Atkins] of foul play". He said that the Board considered that the safest way to investigate would be to suspend the two people suspected to be involved. He said that he did not vote in favour of the Suspension Resolution because of the Complaint. He said that the issues with the Complaint and the signature issue were separate. 494 Mr Hill said that "[a]t some point, the Board decided to bring in an external auditor to follow the paper trail and understand how there was access to a signature" and thought that he might have agreed to that action, but that it had nothing to do with the Complaint. He said he considered NAAJA to be obliged to investigate to get to the bottom of the matter. 495 Mr Hill said this of the information presented by Mr Taziwa at the January Meeting (at [24]): What sticks in my mind about the investigation findings is the assets obtained by [Ms Atkins] through the use of NAAJA and NAAJA's name. [Ms Atkins] purchased 9 cars through NAAJA to avoid paying Fringe Benefits Tax. NAAJA was improperly used to purchase those cars, two of which were luxury cars. I don't have a background in accounting or auditing, so I am not sure of the details. I was shocked by the findings of the investigation. 496 He said that he voted in favour of the Termination Resolution "to avoid any more NAAJA money being haemorrhaged by somebody … who wasn't acting in the interests of the organisation and its constituents" and because he didn't think the Board could trust Ms Atkins anymore. He said his decision was based purely on the findings made by BDO. He continued: 27. Based on the BDO findings, I wanted [Ms Atkins'] employment to be terminated but I also thought the Board should let her respond to the allegations to see if there was anything she had a good plausible reason for doing. The Board agreed to give [Ms Atkins] a right to respond, even though we had the proof to just cut her loose. I can't recall when this was. Post-January Board meeting events 28. After the January Board meeting, I was part of the decision by NAAJA to send [Ms Atkins] a letter with allegations coming out of the BDO findings asking for her response (Allegations Letter). The reason I agreed to do this was because NAAJA had a responsibility to its constituents and to the people who need its services. Also, as a Board, we were concerned about making an executive decision that would affect [Ms Atkins] and her wellbeing. This seemed like the best process to give effect to our decision. 497 Mr Hill said that he could not recall whether he saw Ms Atkins' response to the allegations, and that he was not involved in the decision to send the Termination Letter. He said that the fact that Ms Atkins might bring legal proceedings against NAAJA was not a reason for his voting in favour of the Termination Resolution or agreeing to send the Allegations Letter. 498 In cross-examination, Mr Hill agreed that in a morning break during the First November Meeting Ms Rosas asked directors who were present whether they would be prepared to continue serving as a director if Ms Atkins stayed on as the CEO. 499 He confirmed that he had received the Complaint from Ms Rosas by email before the First November Meeting. He agreed that it was his view that by making the Complaint, Ms Atkins was asking the Board to "do her job for her". He said that it would have been "handled a lot easier" if Ms Atkins had handled the issues with Ms Evans herself and that a number of issues had been allowed to accumulate over time. He said that the way it was put together seemed very spontaneous, and agreed that by making the Complaint at that time and in that way showed that Ms Atkins wasn't competently doing her job. He acknowledged that the Complaint caused him to lose confidence in Ms Atkins abilities as a CEO. He acknowledged that the loss of confidence in Ms Atkins as an effective CEO was something that he had in his mind. 500 Mr Hill confirmed that as far as he could remember, Ms Rosas had told the Board that she had already given the Complaint to Ms Evans. 501 Mr Hill agreed that the allegations in the Complaint that Ms Evans had misused a NAAJA credit card and put an offer on a property without approval were both serious allegations. He agreed that there were no discussions about investigating those matter or suspending Ms Evans in connection with them. When it was put to Mr Hill that a different set of rules had been applied to Ms Evans and Ms Atkins, he responded "It looks like that, yes". 502 Mr Hill confirmed that at the Second November Meeting Ms Rosas had asserted that she had received legal advice to the effect that Ms Atkins had the burden to prove that it was her signature on the contract extension letter. He agreed that he relied on Ms Rosas' word when making the decision to move to have Ms Atkins suspended. 503 Mr Hill said that he could not recall whether he had seen the Terms before the January Meeting. He said that he did not know how the matters referred to in it had come to the Board's attention for investigation. He said that the first he had heard of the allegations was when Mr Taziwa reported to the Board about them at the January Meeting. He said that he believed Mr Taziwa to be independent of the Board.

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Exercise of the Complaint Right 504 In some respects NAAJA's submissions raise issues that could only be relevant if it were necessary to determine whether the Complaint was genuinely made. For example, NAAJA submitted that Ms Atkins had not previously raised the issues reported in the Complaint at her performance review interview in October 2022. Similar themes were explored in the cross-examination of Ms Atkins. 505 There seemed to me to be an attempt to suggest that the matters reported in the Complaint were more recently invented or otherwise made in bad faith. Such a submission cannot be reconciled against the admitted fact that Ms Atkins exercised a workplace right by making a complaint or enquiry in relation to her employment within the meaning of s 341 of the FW Act. That must necessarily include an acceptance that Ms Atkins made a genuine complaint or enquiry in relation to her employment. 506 The undisputed fact that the Complaint was made in the exercise of a workplace right is hardly surprising given the employment context and the respective roles and responsibilities of the Board and the CEO. 507 Some witnesses for NAAJA expressed the view that the matters contained in the Complaint should not have been reported to the Board. The objective reality is that Ms Atkins had every right to report the matters to the Board and that the Board had a responsibility to respond to her express request for guidance as to what should be done about the matters she had raised. That objective reality arises from at least clause 9.4 of the Constitution which provided that the CEO had a responsibility to report to the Board on NAAJA's activities and operations, a fact admitted on the pleadings. In addition, the Board's own Board Framework policy expressly made plain that its functions included the management of risk and the resolution of conflict within the organisation. 508 NAAJA also admitted on the pleadings that the Complaint was one Ms Atkins was able to make in relation to her employment because of her position description, which admittedly included a responsibility to provide overall day to day operational management and specific supervision for senior staff (including Ms Evans as the CFO) to ensure that NAAJA worked in accordance with its policies and procedures. The materials show that it was plainly within Ms Atkins' rights (indeed responsibilities) to bring to the attention of the Board issues that she perceived affected her ability to supervise and manage the CFO and issues that she genuinely perceived gave rise to risks in connection with NAAJA's operations, finances and reputation. Those risks included health and safety risks to which NAAJA's employees might be exposed by reason of the conduct of other employees.

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The adverse actions 511 It is necessary to resolve some extant disputes about whether certain actions directly taken by or otherwise attributable to NAAJA may properly be characterised as "adverse" for the reasons alleged by Ms Atkins. I have partially resolved those issues when summarising the pleadings. 512 The "adverse action" definition in s 341 of the FW Act has four alternate limbs. Their meaning is not contentious. 513 An employee may be injured in his or her employment by the infliction of material harm or detriment, or by the deprivation or impairment of his or her rights: Lamont v University of Queensland (No 2) [2020] FCA 720, Rangiah J (at [66] - [67]); Squires v Flight Steward Association of Australia [1982] FCA 171, Ellicott J (at 27). 514 The phrase "prejudicial alteration" encompasses the deterioration of the advantages enjoyed by the employee: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 (at 17 - 18); Community Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93, Black CJ, Ryan and Merkel JJ (at [17]). As Gordon J said in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178 (at [86]), s 342 of the FW Act requires that: 1. the position is to be examined in the light of the circumstances of an individual employee (or group of similarly treated employees): Community and Public Sector Union v Telstra Corporation Ltd at [17]-[21]; 2. an employee's position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee's then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] and Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Australia) Pty Ltd (2002) 114 IR 165 at [25]; and 3. the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer's conduct: BHP Iron Ore Pty Ltd v Australian Workers' Union (2000) 102 FCR 97 at [35]-[37], [45]-[48]; Australian Workers' Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [52]-[54]; Community and Public Sector Union v Telstra Corporation Ltd at [17]-[21] and Finance Sector Union of Australia v Commonwealth Bank of Australia (2005) 147 FCR 158 at [23]-[30]; 4. if the deterioration occurs by operation of the law or an industrial instrument the employer will not have altered the position of the employees individually speaking; the change in the position of the employees individually speaking occurs by operation of the relevant legislation rather than the conduct of the employer in making the enterprise agreement: Australian Liquor, Hospitality and Miscellaneous Workers Union v Liquorland (Australia) Pty Ltd at [24]-[26], [30], [37]. 515 In its ordinary meaning, discrimination may occur where "different treatment is accorded to persons or things by reference to considerations which are irrelevant to the object to be attained": Street v Queensland Bar Association (1989) 168 CLR 461. In the present context, an action will involve "discrimination between employees" if an employee is accorded disparate treatment involving adversity or disadvantage, being treatment that is not accorded other employees in like circumstances. 516 There are disputes about whether the Suspension Action and the Review Action involved differential treatment or discrimination between Ms Atkins and Ms Evans. My conclusion that those actions involved differential treatment between employees is based on some of the facts and circumstances mentioned in the context of examining NAJAA's reasons for taking the action. The finding is recorded here because the characterisation of actions as adverse is a matter in respect of which Ms Atkins bears the onus. On the basis of what is said in Part 11, I am satisfied that the two actions alleged to be discriminatory do indeed bear that character. If I am wrong in that conclusion, I am satisfied that each of those actions is "adverse" for the alternate reasons pleaded by Ms Atkins in any event. 517 In addition, I find that the Review Action (being the conduct of engaging BDO and setting it to work on the Terms) in all of the circumstances amounted to treatment that injured Ms Atkins in her employment. That is because (as discussed in Part 11 below) the engagement process was designed to ensure that BDO was not provided with exculpatory and explanatory information, including information that Ms Atkins could provide. In that respect, I am satisfied that it was done for the purpose of securing a report that was damaging to Ms Atkins. Whilst referred to in the evidence as an "investigation" or "audit" I would not characterise it in that way. The engagement of BDO was not done with the genuine intent of getting to the truth of the subject matter referred to in the Terms. 518 I am also satisfied that the Misconduct Action (being NAAJA's conduct in sending the Allegations Letter) amounts to an adverse action within the meaning of s 341 of the FW Act in that it injured Ms Atkins in her employment or altered her position in the employment to her prejudice or otherwise involved threats to do so. Those conclusions are based in part on the findings I have made about a deliberate withholding of information provided to BDO touched upon above and elaborated upon in some detail below. The sending of the Allegations Letter was not a genuine step in a process designed to afford Ms Atkins procedural fairness. Rather I am satisfied that it formed a part of a farcical process designed to give the appearance that procedural fairness would be afforded to Ms Atkins when there was no genuine intention on the part of those who sent the letter to do any such thing and nor was there any genuine intention to bring Ms Atkins' response to the directors who voted in favour of the Termination Resolution to assist them to reconsider the views they had already formed. 519 In addition, the Allegations Letter put Ms Atkins to the task of providing exculpatory material within a short timeframe or face the peril of dismissal. At the very least, the Allegations Letter injured Ms Atkins in her employment because it contained a threat of dismissal, coupled with a deadline fixed in circumstances where Ms Atkins had not previously been made aware of the extent of the Terms or the content of the BDO Report whilst at the same time had been precluded from accessing NAAJA's information systems. That of itself is sufficient to meet the description of "adverse action" even if I am wrong in the conclusions summarised in the previous paragraph. 520 The Dismissal Action is an adverse action irrespective of whether the Termination Resolution and the Termination Letter were legally effective to bring Ms Atkins' appointment as CEO and the employment relationship to an end. Either way, the act of dismissing or purporting to dismiss Ms Atkins wholly deprived her of the benefits of the employment, including the right to receive wages for the performance of any work she was willing and able to perform.

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Actions attributable to NAJAA 521 I record here the admitted or agreed facts that attract the operation of s 793(1) of the FW Act. It provides: (1) Any conduct engaged in on behalf of a body corporate: (a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or (b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official; is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body. 522 Section 793(2) provides that where it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show that the conduct was engaged in by a person referred to in s 793(1)(a) or s 793(1)(b) and that the person had that state of mind. The phrase "state of mind" is defined in s 793(3) to include the knowledge, intention, opinion, belief or purpose, and the person's reasons for the intention, belief or purpose. 523 In respect of the Review Action, Ms Atkins alleged that Ms Ellis, Ms Moore and Ms Garlett (being the directors who signed the Terms) were each "an officer or agent of NAAJA who acted within the scope of [their] actual or apparent authority for and on behalf of NAAJA": 2ASOC, [3A], FAD [3A]. NAAJA does not dispute that those persons had that capacity to the extent that they caused NAAJA to engage the services of BDO "to conduct an independent special audit into any irregular or inappropriate actions within specified areas of the role of Chief Executive Officer from 2017 to date". However, it denies that BDO was engaged "to discover evidence about whether Ms Atkins had after January 2017 engaged in" improper conduct. Whichever description is given to the conduct I am satisfied on the facts that the named person had the status of officers or employees in connection with it and that whatever conduct they engaged in is conduct that is taken to have been engaged in by NAAJA. 524 The Review Reliance Action is subject to a similar plea, Ms Atkins alleging that certain persons in attendance at the January Meeting acted in their capacity as officers or agents of NAAJA in accordance with s 793(1)(a) and that others were persons who "acted with the consent or agreement" of NAAJA within the meaning of s 793(1)(b). In response, NAAJA alleges that all attendees had the capacity referred to in s 793(1)(a). I have some difficulty understanding Ms Atkins' position on this issue. It seems to me that, if valid, the Termination Resolution may readily be identified as an act of NAAJA done directly through the organ of its Board. The same may be said of the Suspension Action. It is unnecessary to resort to s 793 of the FW Act to identify those acts as the acts of the company. Whether s 793 of the FW Act can be employed to save from invalidity an act done other than in accordance with the Constitution of the company is a different question. Ms Atkins did not suggest that it could and NAAJA's own submissions on the topic proceeded from an assumption that an otherwise invalid resolution could not be saved by s 793 of the FW Act. 525 Earlier in these reasons I noted the more generalised agreed fact that Ms Rosas was "an officer or agent of NAAJA who in relation to the matters relevant to this proceeding acted within the scope of her actual or apparent authority for and on behalf of NAAJA". I have made findings on the facts that following the January Meeting things were done that did not have the actual authority of NAAJA acting through its Board, but were nonetheless done by persons having ostensible authority to do them. It is on the basis of that ostensible authority that the conduct of sending the Allegations Letter and Termination Letter is conduct taken to have been done by NAAJA. The same reasoning applies in relation to the conduct of Ms Ellis, Ms Moore and Ms Garlett in signing the Terms about which several directors were entirely ignorant.

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PART 9: DISMISSAL OR PURPORTED DISMISSAL 526 The allegation that there has been only a purported dismissal has several aspects to it. They may be broadly described as the Quorum Issue, the Election Issue and the Estoppel Issue. The latter two can be briefly described. 527 Ms Atkins alleges that the Allegations Letter constituted an election by NAAJA not to terminate her employment in reliance on the Termination Resolution and that NAAJA is therefore precluded from now pleading reliance on the Termination Resolution made at the January Meeting as supporting the decision made at the February Meeting to send the Termination Letter: AR, [2] - [5]. 528 Further, she alleges that NAAJA's conduct in sending the Allegations Letter gives rise to an estoppel in that: (1) by that letter, NAAJA represented to Ms Atkins that it would act toward her in relation to the employment in the manner set out in it; (2) in reliance upon that representation, Ms Atkins provided NAAJA with her response to the allegations; (3) termination of her employment and dismissal from her employment in reliance on the Termination Resolution was: (a) contrary to the decision-making processes set out in the letter; and (b) denied her the benefit of the Board's consideration and other possible outcomes referred to in the letter. 529 The plea continues that, "by reason thereof, Ms Atkins was denied the opportunity to obtain the benefits of the reliance". Ms Atkins refers to the circumstance that the Allegations Letter was sent a week after the Termination Resolution, that her response was made about a month after that, and further that there was no other Board meeting between the provision of her response and the Termination Letter. Accordingly, she contends, NAAJA is estopped from: (a) relying on the alleged Termination Resolution as evidence of a resolution by NAAJA to terminate Ms Atkins' appointment as Chief Executive Officer under and in accordance with its Constitution; and (b) asserting that NAAJA has: (i) terminated the Employment as alleged in paragraph 29 of the Defence; and (ii) dismissed Ms Atkins as alleged in paragraph 32 of the Defence. 530 I will now explain why the Termination Resolution was not a valid resolution of the Board and cannot be relied upon given the limits of NAAJA's power to remove Ms Atkins from her position as CEO and hence to dismiss her from her employment. It follows from that conclusion that it is unnecessary to decide the Election Issue and the Estoppel Issue. It may be that similar submissions may be made by Ms Atkins in connection with the question of remedies, including injunctions, but the antecedent question of NAAJA's liability for contraventions of s 342 of the FW Act do not turn on them. The Quorum Issue is determined here because it explains the character of one of the adverse actions underpinning the contravention as being in the nature of a "purported" but legally ineffective dismissal.

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The Quorum Issue 531 The Quorum Issue concerns what the parties described as the "validity" of the Termination Resolution, namely whether it can legally operate as a resolution made in accordance with NAAJA's Constitution to terminate the appointment of the CEO. It also encompasses a dispute as to whether the employment relationship and contract (or both) were terminated by NAAJA irrespective of the validity of the Termination Resolution. 532 It is necessary to recall some relevant provisions of the Constitution. Clause 9.3 is as follows: 9.3 Termination of appointment of Chief Executive Officer The appointment of a Chief Executive Officer terminates if: (a) the Chief Executive Officer resigns; or (b) the Board, by 75% majority of all Directors, removes the Chief Executive Officer from the office of chief executive officer (which, without affecting the rights of the Chief Executive Officer under any contract between the Company and the Chief Executive Officer, the Board has power to do), whether or not the appointment was expressed to be for a specified term. 533 It is reinforced by clause 17.4, as follows: 17.4 Removal of Chief Executive Officer The appointment of the Chief Executive Officer may only be terminated if at least 75% of all Directors vote in favour of the resolution to terminate the Chief Executive Officer's appointment. 534 The word "Director" is defined in clause 1.6 to mean "a person who is, for the time being, a Director of the Company including, where appropriate, an Alternate". 535 The parties' submissions each proceeded on the basis that the "voting pool" (to employ a phrase from NAAJA's submissions) is "all directors". It does not comprise only those directors who attend a meeting at which such a resolution is made. NAAJA did not submit that a vote for the purposes of clause 9.3 was equivalent to a "Special resolution" as defined in clause 1.6. However, consistent with the requirements of clause 7.2, submissions did proceed on the basis that the power in clause 9.3 was one that could only be exercised at a meeting of the Board. 536 Clause 11.6(a) of the Constitution provides that the quorum for a Board meeting is eight directors, with at least two directors from each Region being present, provided that if a quorum is not present when the meeting is convened "the meeting must stand adjourned". 537 Under clause 4.3(a), an alternate is empowered to attend and vote in place of his or her appointor at a meeting at which the appointor is not present. 538 It is necessary to identify those persons who together formed the voting pool of "directors", and also to ask whether the Board's power to terminate the appointment of the CEO was exercised at a meeting fulfilling the requirements of the Constitution, including as to quorum. To be clear, it was common ground between the parties that a director who did not attend at a meeting whether personally or through a validly appointed alternate should be included in the voting pool. Accordingly, it was common ground that Ms Elaine Bromot was a director at the time of the January Meeting, that she did not attend either personally or by an alternate but that her status as a director must nonetheless be taken into account in assessing whether there was the requisite 75% majority vote of all directors.

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Requirements for the appointment of alternates 550 The second aspect of the argument relates to the lack of quorum at the January Meeting because there was not in attendance at least two directors from each region as required by clause 11.6(a) of the Constitution. 551 It is an agreed fact that the January Meeting did not have the requisite quorum "because there were not 2 directors appointed in accordance with the Constitution present from the Southern Region". The Court cannot make a finding inconsistent with that agreed fact: Evidence Act, s 191. 552 As I understand it, the fact was agreed by NAAJA because the documentary requirements prescribed in the Constitution for the appointments of Ms Taylor and Mr Woodbury as alternates for Carol Smith and Marilyn Smith (each for the Southern Region) were not met. If those requirements had been met, they would have been empowered to attend as directors from the Southern Region in the place of Carol Smith and Marilyn Smith in accordance with clause 4.3(a) of the Constitution. 553 Clause 4.1 of the Constitution is as follows: 4.1 Appointment of Alternates A Director (other than an Alternate) may appoint a person who is approved in writing by the remaining Directors from the Class of which the Appointor is a member, to act as Alternate for a specified period (not encompassing more than three consecutive Board meetings) or each time the Appointor is unable to attend a Board meeting or act as a Director (to a maximum of three Board or committee meetings in two years). 554 The word "Appointor" is defined in clause 1.6 to mean, in relation to an alternate "the Director who appointed the Alternate". 555 Under clause 4.5, the appointor must appoint any alternate in writing. The appointment is not effective until a copy is provided to the company signed by the remaining directors from the class from which the appointor is a director. The relevant class in the present case comprises those elected to represent the Southern Region, which comprise Carol Smith, Marilyn Smith and Ms Moore. They do not include Ms Shannon, as she was not a director. 556 The effect of the Constitution is that the choice of an alternate is not a choice to be made unilaterally by the appointor. Rather, the appointor may nominate the alternate, and that nomination must then be approved by all of the remaining directors of the same class. More specifically, the appointment of an alternate for Carol Smith could only have been achieved by a written instrument of appointment from her, signed by the remaining Southern Region directors evidencing their approval of the appointment. The same applies to the appointment of an alternate for Marilyn Smith. 557 The correspondence preceding the January Meeting shows that both Carol Smith and Marilyn Smith informed Ms Rosas that they were unable to attend. In an email sent to the Board on 4 January 2023, Ms Rosas wrote: Just wanted to clarify who will be available on the above dates for the board meeting? As the CEO's lawyer has given the NAAJA Board until 16 January to respond to their request before legal action against NAAJA is taken, we will need to meet to discuss the following: Draft investigation Report NAAJA Structure NAAJA Constitution Are you able to advise on your availability as soon as possible to enable travel and accommodation arrangements to be made? 558 Carol Smith responded: I won't be available. As I have said before, we need more notice to arrange leave from work (especially with people still on leave during January) and for us to travel to Darwin. 559 Marilyn Smith responded: Sorry as people only have just returned to work and some are still on holidays. It is not enough notice to allow for travel to Darwin or where the next meeting was to take place 560 Ms Rosas replied to Marilyn Smith and Carol Smith asking each of them "Can you please nominate a proxy?". 561 Marilyn Smith responded: The person I'd like to nominate isn't in town. Away on holidays still 562 Carol Smith responded: I'm happy for you to try any of the other members 563 Marilyn Smith sent a further email saying: Agree with Carol as I don't have the others [sic] numbers. 564 There is a dispute about the characterisation of those emails. For Ms Atkins it was submitted that Carol Smith and Marilyn Smith asked Ms Rosas to find somebody who they could each appoint to be their alternates. NAAJA submits that each of them delegated to Ms Rosas the task of appointor. I accept Ms Atkins' submissions in relation to that question principally because the email correspondence is to be understood as passing between directors who ordinarily would be cognisant of the fact that to appoint an alternate it is not enough for a director from another region to unilaterally appoint a person of his or her choosing. In my view, what occurred was that Carol Smith and Marilyn Smith asked Ms Rosas to find available persons for them who they could then appoint as alternates. Even if they had subjectively desired Ms Rosas to unilaterally decide on and appoint an alternate of her choosing, that would not have fulfilled the requirement that the appointment be approved by all remaining Southern Region directors (which respectively included Carol Smith and Marilyn Smith in relation to each other's alternates). 565 Clause 11.12(a) relevantly provides that each resolution passed by a person acting as a director is valid even if it is later discovered that there was a defect in the appointment of the person. Accordingly, NAAJA submits, the "defect in the appointment" of the alternates does not affect the validity of the Termination Resolution. 566 Ms Atkins submitted that clause 11.12(a) does not operate to validate the votes of Ms Taylor and Mr Woodbury in favour of the Termination Resolution because it is concerned with things done by persons "acting as Director". She submitted that clause 11.12(a) "does not go so far as to render valid something done by someone who had no status at all to act as a Director". I do not accept that submission. The expression "acting as a Director" is to be read in the context of the whole clause and in a way that gives it a meaningful operation. The clause is plainly intended to validate acts done by a person purporting to act as a director, but in circumstances where there is a defect in appointment of a kind that deprives them of that status. 567 Accordingly, whilst there was a defect in the appointment of Ms Taylor and Mr Woodbury as alternates for Carol Smith and Marilyn Smith, clause 11.12(a) operates such that the Termination Resolution is not invalidated by reason only of that defect. Having accepted NAAJA's argument on that question, I confess to having some difficulty understanding the basis of NAAJA's admission (found on the pleadings, in the SOAF and in the closing submissions) that the January Meeting was inquorate because it was not attended by at least two directors from each Region as required by clause 11.6(a) of the Constitution. Implicitly, I understand NAAJA's position to be that whilst the Termination Resolution is not invalidated by reason only of the defect in the alternates' appointments, it does not operate to cure the defect so as to give the alternates the status of Southern Region directors for the purpose of determining whether there was a quorum at the January Meeting. The agreed fact can only make sense if I proceed on the basis that Ms Taylor and Mr Woodbury are not to be regarded as validly appointed directors from the Southern Region empowered to vote in place of Carol Smith and Marilyn Smith in accordance with clause 4.3(a) of the Constitution.

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Section 1322 of the Corporations Act 568 NAAJA's case is that the Termination Resolution is valid notwithstanding the absence of two directors from the Southern Region by reason of the operation of s 1322(2) of the Corporations Act. Section 1322 relevantly provides: 1322 Irregularities (1) In this section, unless the contrary intention appears: (a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and (b) a reference to a procedural irregularity includes a reference to: (i) the absence of a quorum at a meeting of a corporation, at a meeting of directors or creditors of a corporation, at a joint meeting of creditors and members of a corporation or at a meeting of members of a registered scheme; and (ii) a defect, irregularity or deficiency of notice or time. … (2) A proceeding under this Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceeding to be invalid. … (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation; … and may make such consequential or ancillary orders as the Court thinks fit. (5) An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph (4)(a): (i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and (b) in the case of an order referred to in paragraph (4)(c) - that the person subject to the civil liability concerned acted honestly; and (c) in every case - that no substantial injustice has been or is likely to be caused to any person. 569 As French CJ explained in Weinstock v Beck (2013) 251 CLR 396 (at [7]), the curing effect of s 1322(2) of the Corporations Act is "automatic", subject to two conditions: the Court forming the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by an order, and the Court declaring the proceeding to be invalid. 570 For the purposes of another Division of the Corporations Act, the word "proceeding" is narrowly defined in s 1382 to mean a "proceeding, whether criminal or civil, before a court". The word is more broadly defined in s 1322(1)(a) to include "any proceeding under this Act, whether a legal proceeding or not". The phrase "procedural irregularity" expressly includes the absence of a quorum at a meeting of a corporation. It is a phrase used in (and only in) s 1322(2). 571 Ms Atkins argued that a procedural irregularity (as defined in s 1322(1)(b)(i)) should not include a lack of a quorum arising from the breach of a company's constitution because a "contrary intention" appeared. 572 To the extent that Ms Atkins' submissions sought to identify a contrary intention sourced in NAAJA's own Constitution I reject that approach. The contrary intention is to be found in the enactment in which the phrase appears. 573 Ms Atkins also submitted that the contrary intention was to be found in s 1322(4) which applies in cases where there has been a contravention of a provision of the constitution of a company. The submission, as I understood it, is that s 1322(2) should not be construed to deal with a lack of quorum brought about by a contravention of a company's constitution, because that is the subject matter to which s 1322(4) alone is directed. As a consequence, Ms Atkins submitted: (1) it was for NAAJA to make an application under s 1322(4)(a) and to satisfy the Court that all of the conditions under s 1322(5) are present, but it had made no such application and the conditions are not fulfilled in any event; and (2) for the purposes of s 1322(2) the irregularity in the present case has caused or may cause a substantial injustice that cannot be remedied by an order of the Court and the Court should declare the Termination Resolution to be invalid. 574 The argument that a "contrary intention" appears should be rejected. That is principally because there is nothing to be found in the text, context or purpose of the provision to support a conclusion that s 1322(2) and s 1322(4) deal with such discrete subject matters so that the lack of a quorum brought about by a breach of a company's constitution cannot also be a "procedural irregularity" as defined. 575 The definition in s 1322(1)(b) deals with the concept of a lack of a quorum at a company meeting. In the general run of cases, the conduct of a meeting and the passing of resolutions at an otherwise inquorate meeting would involve a breach of provisions commonly found in a company's constitution which prescribe the quorum requirements for meetings of the company's members or directors. Moreover, s 1322(4) may be understood as a procedural mechanism by which an interested person may gain certainty in the event of a dispute about the validity of acts. It is a means by which the interested person may approach the Court for relief, including in cases where the automatic operation of s 1322(2) is in dispute. In my view, the provisions may be understood as providing different procedural mechanisms to resolve disputes about matters that include the validity of acts done at inquorate meetings of a company's board. Section 1322(2) operates whether or not the lack of a quorum is occasioned by a breach of a constitution. 576 It follows that the circumstance that NAAJA has not made a formal application under s 1322(4) is of little consequence. Its position with respect to the application of s 1322(2) is made abundantly clear on the pleadings and Ms Atkins has sufficiently put NAAJA on notice that the qualifying words apply. Similar questions arise to those that might arise on an application under s 1322(4) in any event, specifically the circumstance mentioned in s 1322(5)(c). 577 For the purposes of s 1322(2) it is necessary to ask whether the lack of quorum has caused or may cause substantial injustice that cannot be remedied by any order of the Court, and whether there should be a declaration to the effect that the Termination Resolution is invalid. There are four indications that a substantial injustice may be caused if s 1322(2) were to have the automatic operation it would otherwise have. 578 First, the lack of quorum in the present case was one that resulted from a failure to comply with the requirements of the Constitution relating to the appointment of alternates. Those requirements form a part of a broader range of provisions that define NAAJA's character as a body representing the interests of Aboriginal people from different regions of the Northern Territory. The requirement for regional representation runs not only at the level of membership but also at the level of the Board. It is reinforced by the requirement that the appointment of alternate directors be not merely at the discretion of individual directors, but agreed by other directors of the same class. Whether or not the lack of a quorum can generally be regarded as "procedural", the circumstances giving rise to the lack of a quorum are such that the validating operation of s 1322(2) may give rise to substantive injustice in the particular facts of this case. 579 Second, NAAJA submitted Carol Smith and Marilyn Smith should be understood to have taken no interest in the identity of alternates, that they in fact acquiesced or would have approved in writing Ms Rosas' choice of person to attend on their behalf. I would have been inclined to accept that submission if Carol Smith and Marilyn Smith had been notified that the Board may be asked to exercise its powers to terminate the appointment of NAAJA's CEO. Plainly they were not. I find that neither of them was aware of the Terms and neither of them was aware that the Board would be asked to consider the BDO Report into allegations of misconduct contained in them. On the evidence given by each of them, I infer that if they were fully apprised of all of the facts, Carol Smith and Marilyn Smith would not have asked for alternates to attend the meeting on their behalf at all, or otherwise would not have acquiesced to an alternate of Ms Rosas' choosing. It matters not what Ms Moore would have done as the other Southern Region director. 580 Third, NAAJA's Constitution makes express and automatic provision about the consequence of a lack of quorum, specifically that the meeting is to stand adjourned and that, if on resumption there is no quorum, the meeting is abandoned: Constitution, clause 11.6. To apply s 1322 to overcome a procedural irregularity resulting in a lack of quorum would be to denude that clause of its effect. 581 Fourth, as discussed below, the terms and conditions of Ms Atkins' employment must be understood as impliedly subject to the limits of the Board's power under clause 9.3. That power, along with its conditions, governs the legal relationship between the parties to the employment contract and hence affects the terms of the contract itself. NAAJA had no authority under the Constitution (and hence the employment contract) to terminate Ms Atkins' appointment other than by the exercise of a discretionary power reposed in all of the directors. That limitation affects NAAJA's capacity to exercise its contractual powers. It is a limitation going to the substantive question of who has the authority to decide to bring the appointment of the CEO to an end. The intention of the Constitution is that such a decision be made by a 75% of all directors and at a Board meeting with the intention that there is a proper representation of the views of NAAJA members throughout its four Regions. 582 It is also relevant that unlike other provisions of the Constitution, the authority in clause 9.3 is directed to a singular subject matter going to the heart of the contractual relationship between NAAJA and its CEO. To validate a resolution made other than at a quorate meeting would in the present case render clause 9.3 nugatory in the only factual instance in which it is intended to apply. 583 There is tension between those provisions and the validating effect provided for in clause 11.12(a) itself. The tension arises in part because of NAAJA's agreement that there was no quorum and its apparent acceptance that the alternates did not have the status of directors from the Southern Region. The "agreed fact" must be adhered to. It was not qualified by any reliance on clause 11.12(a) giving Ms Taylor and Mr Woodbury the status of directors from the Southern Region for the purpose of determining whether there was a quorum at the January Meeting. 584 In the result I consider the features of the case discussed in the proceeding paragraphs sufficient to support a finding that there would be substantial injustice if s 1322(2) of the Corporations Act were to operate. The decisive factor is the nature and sole purpose of the power purportedly exercised by the Board and its inextricable connection with the NAAJA's contractual rights and obligations.

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Is the dismissal a "nullity" in any event? 585 NAAJA contends that it "does not tie the dismissal to the validity of the Termination Resolution, only to the fact that the resolution was passed". It submits that the dismissal communicated by the Termination Letter cannot be treated as a nullity (even if there was no resolution complying with the Constitution), because an employer may effectively, though wrongfully, withdraw the legal right of an employee to act on its behalf. It submits that in a case of wrongful dismissal, the wrong itself may have civil consequences, but the employee cannot ignore the fact of the dismissal and continue to "claim employee status". Support for that submission is said to be found in the reasons in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 (Brennan CJ, Dawson and Toohey JJ there preferring the minority view of Latham CJ in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435). 586 Ms Atkins submits that NAAJA's contractual right to terminate the contract is "synonymous with the valid exercise of the authority granted by clause 9.3(b)" of the Constitution. She submits that whilst Ms Rosas had the apparent authority to send the Termination Letter on NAAJA's behalf, she was not authorised to decide whether Ms Atkins should be removed from the office of CEO or to decide whether Ms Atkins should be dismissed altogether from her employment. She submits that to find otherwise would be to sanction an absurdity: Integral Energy v Allen [2001] NSWIRComm 193; 107 IR 456 (at [22]). 587 The authorities relied upon by the parties are principally concerned with the relief available to a dismissed employee. In the present case, the trial of questions concerning the availability of forms of relief and the measure of any award of damages is to be heard separately and after the delivery of these reasons. However, both parties have asked the Court to determine the question of whether Ms Atkins has been actually or only purportedly dismissed for the limited purpose of identifying the relevant adverse action. Some of what follows transgresses on questions of law that may also arise on the trial as to remedy, but that cannot be helped.

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This case distinguished 588 Care should be taken when applying the authorities referred to by the parties, given the different legal and factual contexts in which they were decided. None of the cases directly supply the answer to the questions presently under consideration. 589 Automatic Fire Sprinklers and Byrne each concern the contractual consequences of a breach of a statute or breach of an award having statutory force. Ascertaining those consequences turned on questions of statutory construction, an exercise in discerning Parliament's intention. In both cases, it was held that the statutory obligation had not been imported into the employment contracts whether by agreement, implication or operation of the law. In each case the question of whether an employment contract could remain on foot notwithstanding the removal of a person from a position occupied by them also turned on questions of construction. 590 Unlike the argument raised by the employees in Byrne, Ms Atkins does not suggest that any decision to dismiss her is void because of non-compliance with s 340 of the FW Act and no question of statutory construction arises (other than that which arose under s 1322 of the Corporations Act). The invalidity in the present case is said to arise because a condition on the contractual power to remove her from the office of CEO was not fulfilled. Acceptance or rejection of that argument does not turn on questions of statutory construction, but rather on the construction of the Constitution and to a lesser extent the employment contract. 591 Integral Energy was concerned with whether a general statutory power of an employer to fix terms and conditions of employment could be exercised in a manner inconsistent with a more specific statutory power authorising it to remove a person from office without notice. It involved no consideration of the legal consequence of non-compliance with that specific power. The conclusion that continuation of the employment contract after a valid exercise of a power to remove him from his position would involve an "absurdity" was one based on parliamentary intention. It is not to be understood as a general statement of principle. 592 The two High Court cases recognise the distinction between the removal of a person from the office of CEO, cessation of an employment relationship and termination of an employment contract. That distinction is reflected in clause 9.3(b) of NAAJA's Constitution which expressly recognises that the removal from office does not affect the rights of the CEO under any contract between the CEO and NAAJA. The distinction collapses here because the Board's purported decision was to bring both to an end, and it appears to be accepted by Ms Atkins that a valid resolution under clause 9.3 would necessarily have the effect of bringing both the employment relationship and the employment contract to an end because the only purpose of the contract is to fix terms and conditions appertaining to the position of CEO. 593 Importantly, it is not the contravention of s 340 of the FW Act that is the "wrong" alleged by Ms Atkins to constitute a repudiatory breach of the employment contract. Rather, she submits that the contract remains on foot because it has not been terminated in the manner expressly provided for by the Constitution. NAAJA's conduct in sending the Termination Letter unsupported by a valid resolution under clause 9.3 is, she submits, an ongoing repudiatory breach of the employment contract, which she has not accepted. I accept that submission. Nothing said in Automatic Fire Sprinklers or Byrne contradicts it. 594 There was non-compliance with a term of the Constitution that in my view confined any contractual right that NAAJA might otherwise have had to terminate Ms Atkins' appointment as CEO at general law. The nature of that confinement is important because it is an inherent feature of NAAJA as a contracting party: the Constitution prescribes the persons who are authorised to make the decision on NAAJA's behalf. The Termination Letter was sent with NAAJA's apparent authority and, as a consequence, NAAJA is bound by conduct of the sender which amounted to a repudiatory breach, which is ongoing. In and of itself it could not operate to validly terminate either Ms Atkins' employment contract or her appointment as CEO.

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PART 10: THE EMPLOYER'S ONUS 598 The purpose of s 361 of the FW Act is to throw onto the employer the onus of proving facts that are peculiarly within its knowledge: Barclay, French CJ and Crennan J (at [50]). 599 The effect of s 360 of the FW Act is that an employer will contravene s 340 if the reasons for taking an adverse action including a prohibited reason. Accordingly, for a contravention to be established, it is sufficient that the prohibited reason be a substantial and operative factor for taking the adverse action, whether or not other reasons may exist. The onus placed on the employer under s 361 of the FW Act is to be understood in that context. It is an onus to positively establish, to the civil standard, a negative proposition: that the reasons for taking the action did not include, as a substantial and operating factor, the particular prohibited reason alleged by the employee: Transport Workers' Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 (at [284] - [288]). 600 That onus will not be discharged in cases where the evidence is of a kind that does not permit a finding to be made on the balance of probabilities either way. In such cases, the deeming effect of s 361 will not be displaced and the Court must find that element of the contravention established. In such cases, it may be said that the applicant's allegation will stand as sufficient proof of the fact: Short v Ambulance Victoria (2015) 249 IR 217 (at [56]). Such was the case in Qantas Airways, Lee J there concluding that he could not be satisfied that the alleged prohibited reason had not motivated the employer's decision to take the adverse action (at [288]). 601 Ms Atkins has pleaded facts and circumstances from which it may be inferred that the adverse actions were taken for reasons prohibited under s 340. It was unnecessary for the pleading to go so far. The facts and circumstances (if established) may nonetheless be relevant in assessing the evidence adduced by NAAJA to discharge its burden of proof on the same questions. 602 Unsurprisingly, the quantity and quality of evidence that will be sufficient to discharge the employers' onus cannot be constrained by fixed rules, but the authorities do provide some guidance on the subject. 603 In Barclay, an employee was an officer of an association who engaged in industrial activity. He alleged that his employment was terminated because he had exercised those workplace rights. French CJ and Crennan J observed (at [45]) that it would generally be difficult to displace the statutory presumption in s 361 of the FW Act if no direct testimony is given by the decision-maker acting on behalf of the employer. Their Honours continued: … Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden … (footnote omitted) 604 Gummow and Hayne JJ emphasised that the focus of the enquiry was upon the reasons of the decision-maker at the time of the adverse action. In assessing the evidence led by the employer to discharge its onus, the reliability and weight of that evidence was to be considered against the evidence adduced by the employee and the overall facts and circumstances of each case: Barclay at [127]. 605 Adverting to the employee's exercise of a workplace right when taking an adverse action does not necessarily have the consequence that the action was taken because of that reason: Alam v National Australia Bank Ltd (2021) 288 FCR 301, White, O'Callaghan and Colvin JJ (at [119]). Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 is illustrative of the point. In that case, a union official was dismissed from his employment after taking part in a lawful strike. Whilst engaging in that industrial activity, the official held up a sign with the word "scab". The manager's evidence of his reasons for dismissing the official was accepted by the trial judge. The reasons were that the word "scab" was (among other things) offensive and intimidating and contrary to the employer's workplace policies requiring courtesy and respect to be shown to other employees, that the official was well aware of that policy and that the official had acted in a way that was antagonistic to the culture the employer was attempting to establish in the workplace. In the High Court, French CJ, Kiefel and Gageler JJ held that there had been no contravention of a provision equivalent to s 340 of the FW Act, as the reasons accepted as fact by the trial judge were not prohibited reasons. As French CJ and Kiefel J said: 21 In the present case, the reasons found by the primary judge to actuate Mr Brick's decision did not include Mr Doevendans' participation in industrial activity, or his representing the views of the CFMEU. To the contrary, his Honour found that Mr Brick had not been motivated by such considerations. This was consistent with the reasons given by Mr Brick in evidence accepted by his Honour, which related to the nature of Mr Doevendans' conduct and what it represented to Mr Brick about Mr Doevendans as an employee. 22 The primary judge then went on to consider whether Mr Doevendans' conduct constituted an industrial activity in the relevant respects. The only inference which can be drawn from this additional reasoning is that, because the adverse action was based upon the sign which Mr Doevendans held and waved, this activity must be taken as one of the reasons for the action. That is to say no more than that the adverse action had a connection, in fact, to the industrial activity. That connection may necessitate some consideration as to the true motivations of Mr Brick, but it cannot itself provide the reason why Mr Brick took the action he did. That inquiry was concluded by his Honour's earlier findings. His Honour, in effect, wrongly added a further requirement to s 361, namely that the employer dissociate its adverse action completely from any industrial activity.

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Corporate decision making 606 Within a corporation, the authority to bind a company to an action or decision may reside in one or more persons, often referred to as a "decision-maker". That person's state of mind will always be relevant. In addition, a proper assessment of an employer's reasons for taking adverse action may require consideration not only to the actuating purposes of the decision-maker within a corporation, but also the states of mind of any person whose conduct has influenced the decision-maker in a relevant way. An example is Wood v City of Melbourne Corporation (1979) 26 ALR 430. In that case, a municipal council stood down an employee in contravention of a general protection provision analogous to s 340 of the FW Act. Smithers J identified that a town clerk (Mr Rogan) had given directions to the acting town clerk (Mr Reilly) and provided information to him. The relevant decision-maker was Mr Reilly, who was authorised to make (and in fact made) the impugned decision on the employer's behalf. However, Smithers J held that he had done so on the advice of Mr Rogan. His Honour said (at 20): … in this case, I think the better view is that it was Mr Rogan's mind which was the mind of the defendant. Possibly the mind of the corporation has to be inferred from Mr Rogan's and Mr Reilly's joint mind. What is in issue is a decision of the corporation. A decision is defined in the Shorter Oxford English Dictionary as including 'the action of deciding' and, notwithstanding that Mr Rogan characterized his part in the affair as giving advice, the corporation is entitled to have the total transaction looked at objectively by the court. It is the duty of the court to draw such inferences as are proper on the evidence as to who it was that played the decision-making part in the joint administrative activities culminating in Mr Reilly performing the actual act of standing down. So doing I would attribute the decisive factor in the matter to have been Mr Rogan's so-called advice. A relevant statement of principle in this connexion is to be found in the judgment of Bray CJ in Brambles Holdings Ltd v Carey: 'Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers. … Very difficult questions can arise in this connection. … It is enough to say that, in my view, it is a fallacy to say that any state of mind to be attributed to a corporation must always be a state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes. … 607 It follows from that analysis that a person may materially contribute to a decision even if the person is not the authorised decision-maker. So much was acknowledged by the Full Court in Wong v National Australia Bank Limited (2022) 318 IR 148. After discussing Wood v City of Melbourne the Full Court gave further examples of corporate decision making in which the person authorised to make a decision acted on advice given by or information provided by another: 23 In Voigtsberger v Pine Rivers Shire Council (1981) 1 IR 198, Evatt J concluded that in examining the reasons of a decision of a municipal council to dismiss an employee it was relevant to consider the reasons of a finance committee that had recommended that course. The decision of the finance committee was the 'essential and material decision to be considered' (at 205). In circumstances where two members of that committee were also members of the Council, his Honour was not satisfied on the balance of probabilities that their minds were not actuated by the prohibited reason alleged by the employee. 24 In Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415; 172 CAR 1073 the Full Court of the Australian Industrial Court (Smithers, Woodward and Evatt JJ) said this of decisions made by a committee managing the affairs of a corporate body (at 1079): … considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition it could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration. In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others. Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the circumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors. 608 As the Full Court said (at [25]), those authorities demonstrated that the word "because" appearing in s 340 of the FW Act "directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action" and that where that person was a corporation it will be necessary to "examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who 'played the decision-making part in the joint administrative activities' culminating in the actual act that constitutes the adverse action". As such, the Full Court said, whilst the person whose conduct directly visited the adverse action on the employee may be regarded as the decision-maker, the decision making process may incorporate the state of mind of other people including because of (for example) the adoption of facts or opinions asserted by them for prohibited reasons. The Full Court continued (at [26]): The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation's reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind. 609 As identified in Wong and Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415, there may be cases where it appears that members of a decision making committee have relied upon a pejorative report by another person. In cases of that kind it may be relevant to consider whether the pejorative report was itself actuated by reasons that included a prohibited reason. That was the case in Han v St Basil's Homes (2023) 325 IR 190 (at [238] - [239]) - and in RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310, where Raper J (on an appeal) said: 64 Further, and critically, the comparative attention given in the judgment to the evidence of Mr Stamatoudis over that of Ms Sullivan and Ms Christensen is unsurprising and logically explainable: Whilst the primary judge found that each of them were decision-makers, his Honour found, in effect, that Mr Stamatoudis was the instigator of, author of and proponent for the adverse action, and made specific adverse credit findings against him: at J[225]. Accordingly, it is unsurprising that greater attention was given to his evidence. Ms Sullivan's and Ms Christensen's involvement in the decisional process fell into a different category by comparison. As observed by Smithers, Woodward and Evatt JJ in Roberts (at 1079) (cited in Wong at [24]): It is apparent that, when a decision is made by a committee, different considerations may have operated on the minds of the various members of the committee, and not all the considerations operating on the mind of every member would necessarily be known to the others. In addition it could well be that, in the decision-making process, the influence of one or more members may, for various reasons, have been greater than that of others. The effective decision may even have been made by a person who was not a member of the committee. In any particular case, a recommendation of one man may have been rubber-stamped by others without their giving the matter independent consideration . In another case a person actuated by improper motives may have overborne the minds of others who were not so motivated. Or a person improperly motivated may have presented a dishonest case to others. Of course there may be cases in which it would not be proper to go behind the proceedings of a formal meeting of a particular body. But in the circumstances of this case it is our view that the problem should be approached through an analysis of the motives and parts played by the individual actors. 65 The primary judge found that their evidence should not be accepted on a number of bases. The first was that Ms Lamb's complaint was with respect to Mr Stamatoudis's own conduct, and therefore there was an obvious conflict of interest: Mr Stamatoudis was the instigator of and party to the decision-making process leading to her demotion in a short period after the complaint was made. 610 In the following cases it was necessary and appropriate to examine the states of mind of persons other than the person authorised to bind the corporation to the adverse action: (1) Wong, in which the Full Court held that in assessing the reasons for the adverse action taken by a person authorised to bind the corporate employer, it was relevant to consider the states of mind of others who had taken steps to put in train a process that would not otherwise have occurred. (2) Elliot v Kodak Australasia Pty Ltd (2001) 129 IR 251 in which a general manager who made the impugned decision relied upon the state of mind of a supervisor who had made an "indispensable" contribution to a "rankings" spreadsheet upon which the general manager had relied without independent thought or analysis. The Full Court (Lee, Madgwick and Gyles JJ) held (at [37]) that to establish a contravention "it was not necessary for the decision-maker to have had conscious awareness that the supervisor's assessment was affected, motivated or explained by a reason prohibited by the FW Act". (3) National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139, where in examining a university's decision to dismiss an academic it was relevant to consider the states of mind of those who had recommended that course to the decision-maker. (4) Construction, Forestry, Mining and Energy Union v Claremont Coal Pty Ltd (2015) 253 IR 166 in which the decision-maker acknowledged that he "could not have made his ultimate decision" without referring to a ranking spreadsheet prepared by another employee. 611 In the last mentioned case, Reeves J observed (at [121]), having referred to Kodak Australasia: … where the reasoning process is dispersed through an assessment process involving a number of persons, the task is much more complicated. In that situation, I consider the judgment in Kodak requires me to examine the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. This inquiry does not involve a roving search of the minds of the employees of the kind rejected by Heydon J in Barclay (at [146]). Nor does it involve an objective inquiry of the kind rejected in Barclay (at [44] and [126]), nor import some 'unconscious' reasoning to the ultimate decision-maker that was also rejected in Barclay (at [124] per Gummow and Hayne JJ, and [146] per Heydon J). Instead, it focuses on the conscious reasoning processes of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons. If one or more of the reasons employed by one or more of them was a prohibited reason, that will impugn the ultimate decision. This is what I consider the Full Court meant by 'inadvertently' adopting an 'undisclosed prohibited reason' in Kodak … (emphasis added) 612 In addition, the Full Court in Australian Red Cross Society v Queensland Nurses' Union of Employees (2019) 273 FCR 332 accepted that "a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose", but resisted the formulation of a precise test to identify the nature and extent of that involvement (at [91]). 613 Without positing a definitive test to replace the word "because" in s 340 of the FW Act, the question is whether the person's involvement had a "material effect on the ultimate decision" or whether the person otherwise exercised an influence that may be described as material, significant, plainly important, major, substantial or essential. A person may meet that description without having the capacity to bind a company to an act or omission in a legal sense. As such, it is unnecessary to semantically label a person as a "decision-maker" in order for their conduct, state of mind or motivations to be relevant to the assessment as to whether an employer acted for a prohibited reason. 614 Given all of the above, the employer's onus under s 361 of the FW Act will incorporate a requirement to positively satisfy the Court that all relevant witnesses have been called to testify as to their reasons for taking or participating in an impugned action. The practical effect of the onus may be that the employer must dispel an inference or assuage a concern fairly arising on the evidence that persons other than those called by the employer participated in the action in the sense discussed in the authorities. The failure to dispel that inference or assuage that concern may result in the Court having misgivings about the quality of the employer's case and so prevent it from finding facts in the employer's favour.

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The relevance of wrongdoing 615 Finally on this topic, it must be borne in mind that an allegation that an employer has contravened of s 340 of the FW Act will not be established by proof of wrongdoing at large. On that topic I gratefully adopt this summary of principle of Snaden J at first instance in Wong v National Australia Bank Limited [2021] FCA 671 (approved by the Full Court in Wong at [93]): 81 Where, by way of rebuttal of the presumption established by s 361 of the FW Act, a respondent leads evidence as to why it engaged in the conduct that an applicant seeks to impugn, the relevant inquiry starts and ends with whether, in fact, those reasons relevantly actuated that conduct. It is not necessary for a respondent to prove that the reasons that actuated its conduct were procedurally or substantively fair: Khiani v Australian Bureau of Statistics [2011] FCAFC 109, [31] (Gray, Cowdroy and Reeves JJ). 82 Thus where, as here, a respondent employer cites, as its reasons for taking adverse action against an applicant, opinions that it formed about his or her conduct or capacity, the relevant inquiry is not whether those opinions were fairly or properly formed, or vindicated in fact. Rather and more simply, the relevant inquiry is whether the opinions were formed at all and, if they were, whether the respondent was moved to act as it did in consequence of them. A claim under Pt 3-1 of the FW Act '… is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome': Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J). 83 In some circumstances, it might be possible to infer from evidence tending to show that a respondent's opinions were formed wrongly or unfairly - that is to say, inconsistently with fact or in a way otherwise susceptible to some other legitimate criticism - that those opinions either were not, in fact, formed or did not relevantly actuate the respondent's conduct (or both). Such circumstances might warrant the rejection of the respondent's evidence as to why it did what it did and a finding that the respondent failed to rebut the presumption established by s 361 of the FW Act. But, regardless, the inquiry remains: did the respondent form the views that it said that it formed; and, if it did, was it actuated to conduct itself in the way that it did on account of them (and not on account of any proscribed reason)?

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Onus and the rule in Jones v Dunkel 616 Both parties made submissions about the rule in Jones v Dunkel (1959) 101 CLR 298 and its implications for that part of the case in which NAAJA bears the onus. The majority in that case held that an inference favourable to the plaintiff for which there was a basis in the evidence might be more confidently drawn when a person presumably able to contradict or put a different complexion on the facts is not called by the defendant to give evidence, and where the evidence provides no sufficient explanation for the absence of the witness. 617 As explained by the learned author of Cross on Evidence, an aspect of the rule is that the "failure by a party to give evidence, to call witnesses, to tender documents or other evidence or to produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted the party's case": Heydon JD, Cross on Evidence (14th ed, LexisNexis Australia, 2024) at [1215], p 39 (footnotes omitted). For Ms Atkins it was submitted that where a corporate entity is required to exclude all operative prohibited reasons, an inability to explain the absence of evidence "from witnesses whose minds played a part in the taking of adverse action" will make it more difficult for the Court to accept that the corporation has "proved otherwise". I accept that submission to the following extent. 618 The rule in Jones v Dunkel is concerned with the process of finding facts on the available evidence, including by way of inferences. But it bears repeating that an employee can succeed in a case alleging contravention of s 340 of the FW Act without the Court making any factual finding in his or her favour on the question to which s 361 of the FW Act relates. The finding in a successful case will be supplied by s 361 itself. 619 As I have said, an employer charged with the onus under s 361 may ordinarily be expected to present a case that satisfies the Court that all relevant witnesses have been called. What that requires in a practical sense will differ from case to case. In many cases there may be no reason to suppose that there is a missing witness. However, where it appears on the evidence that a person who may have been motivated by a prohibited reason may have had material involvement in a decision making process culminating in an adverse action, the employer may have some difficulty discharging its burden if that person is not called to dispel any notion that he or she was not so actuated or not so involved. If that is not done, the Court may have misgivings about the qualitative nature of the case presented by the employer, upon considering the evidence as a whole. It is not necessary to directly resort to the rule in Jones v Dunkel to articulate those misgivings as a basis for being unable to be satisfied that the employers' reasons did not include a prohibited reason. The Court may have regard to any gaps in the case presented, just as it may have regard to any lack coherency, plausibility or cogency in the evidence presented.

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The onus and the rule in Browne v Dunn 620 The Evidence Act does not displace the principle commonly referred to as the rule in Browne v Dunn (1893) 6 R 67. As explained in the authorities discussed below, it is a rule concerned with procedural fairness and, as such, its content is to be discerned having regard to what fairness requires in the particular facts and circumstances of each case. 621 The broad context of the present case is that this action is a civil proceeding conducted on pleadings. Each party was notified of the evidence-in-chief to be given by the witnesses for the other party well in advance of the trial. Each party accordingly had the opportunity to inform its witnesses as to the issues, and the affidavits confirm that they in fact did so. Whilst NAAJA is the respondent party, the witnesses that it called were each (on its case) directors whose decisions were obviously impugned in the proceeding. Whilst they are not parties, the witnesses are not entire strangers to the controversy. 622 As the Full Court said in Carter v Federal Commissioner of Taxation (2020) 279 FCR 83, Jagot, Davies and Thawley JJ (at [26]): The rule in Browne v Dunn can be seen as a rule of procedural fairness to a party: Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 at 101 (Tamberlin J). It may be inappropriate, for example, to submit that a witness's version of events should not be accepted if the witness has not been challenged on his or her version of events in cross-examination and there has been no earlier notice that the version of events is disputed. Where, however, it is clear from the course of proceedings that the version of events is challenged, and recognising that each case turns on its facts, strict compliance with the rule is not always necessary. 623 In Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 Campbell JA said (Allsop P (as his Honour then was) and Basten JA agreeing) (at [105]): While the evidence was not cross-examined on, that does not necessarily mean that the judge was obliged to accept it. A judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible: Sullman v Sullman [2002] DFC 95-248; [2002] NSWSC 169 at [304]-[306]; Caldwell v J A Neilson Investments Pty Ltd (2007) 69 NSWLR 120; [2007] NSWCA 3 at [96]; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-8. Nor did the rule in Browne v Dunn (1893) 6 R 67 (Browne) prevent the judge from rejecting the evidence. That is because Ms Maude had given her evidence on affidavit in advance of the trial (including an account of the conversation with Mr Miles that she told Mr Newport about), and Mr Miles had replied to that affidavit in advance of the trial. Mr Miles' reply included denying that his client was prepared for the appellant to receive the benefit of all the BBX dollars as BBX dollars were of no use to it, and saying that he did not agree to any proposition that removed his client's ability to choose whether to take BBX dollars or set aside cash. Exchange prior to trial of affidavits that disclose the position of the respective parties concerning a particular evidentiary matter can prevent a Browne point being successfully raised: West v Mead (2003) 13 BPR 24,431; [2003] NSWSC 161 at [95]-[99]. Thus, I do not accept that the absence of cross-examination required the judge to accept Mr Newport's evidence. 624 The fact that NAAJA had the onus of proving matters relating to the reasons for the impugned decisions also forms a critical part of the legal context in which the rule in Browne v Dunn is to be applied. In light of the presumption supplied by s 361, the rule in Browne v Dunn did not require Ms Atkins to put to each of NAAJA's witnesses the weaknesses attending NAAJA's case or to point out gaps or incongruities in each witness's testimony that might contribute to a conclusion that their evidence was insufficient to discharge the onus. The choice of detail to include in its witnesses' evidence was a choice for NAAJA to make. If it left a topic unaddressed or skirted over topics that required greater elaboration, there was no obligation on Ms Atkins to ask why that was so or to create opportunities for NAAJA to fill the gaps as their significance emerged. 625 As a party, NAAJA was plainly on notice that Ms Atkins disputed the whole of the case it presented to discharge its onus under s 361 of the FW Act both by reason of the pleadings and the exchange of evidence in advance of the trial. In addition, it is apparent from the affidavits of each of NAAJA's witnesses that they understood that NAAJA's reasons for taking the adverse actions were disputed. Each of them disclosed an understanding of that issue when denying that the adverse actions were taken for reasons that included Ms Atkins' exercise of workplace rights, and describing limited objective circumstances to support their assertions. 626 In the pages that follow I express my dissatisfaction with the evidentiary case presented by NAAJA. In many respects I do so without making any finding of fact. To the extent that I have made findings contrary to the evidence given by any one of NAAJA's witnesses I am satisfied that the rule in Browne v Dunn did not require a direct contrary proposition to be put to the witness, either because of the context I have just described or because the course of cross-examination was such that it was plain to the witness that his or her testimony was challenged. An example is the topic of whether Ms Rosas had a bona fide belief that her signature had been misused or forged on the Contract Extension Letter. Given the procedural and legal context I have described, I do not consider I am precluded from expressing a view about the sufficiency of Ms Rosas' evidence on that important question. She was cross-examined about all of the objective circumstances surrounding that allegation and it was plain enough that the genuineness of her belief was one of a multitude of disputed issues. She had given evidence in her own affidavit that could only have been relevant to objectively buttress her asserted subjective belief. In addition, it was squarely put to Ms Rosas that the BDO Report was prepared to damage Ms Atkins' standing before the rest of the Board, that she joined in the Termination Resolution to protect Ms Evans and that she wanted Ms Atkins "out of the office" to protect Ms Evans. To paraphrase the words of Bromwich J at first instance in Central Innovation Pty Ltd v Garner (No 4) [2020] FCA 1796 (at [221]), I do not consider that a rote application of the rule in Browne v Dunn was required, so as to produce a rote denial on that or other critical topics: see also Garner v Central Innovation Pty Limited [2022] FCAFC 64 Charlesworth, Stewart and Halley JJ) at [238].

[61]

The signature allegation and Suspension Action 632 NAAJA submitted that the gist of the evidence of the directors was that the substantial and operative reason for the Suspension Action was to enable it to investigate the serious signature allegation "including potential fraud" without risk of interference from Ms Akins or Ms Keightley. It emphasised that each director had denied that the Complaint was a reason for their decision to join in the Suspension Resolution. NAAJA submitted that the directors' testimony was supported by: (1) minutes of the Second November Meeting and the content of the Suspension Letter; (2) the circumstance that the signature allegation remained unresolved at the time that the Suspension Action was taken; (3) the circumstance that the sensitivity and gravity of the signature allegation was such that it was untenable for Ms Atkins to continue with her duties whilst the issue was outstanding; (4) the bona fide belief of Ms Rosas, "which arose prior to the Complaint being made" that she did not sign the Contract Extension Letter and that she would never have signed it without Board approval, together with the circumstance that the other directors took her bona fide belief seriously; and (5) the objective evidence showing that there was a cause to question the authenticity of Ms Rosas' signature, specifically: (a) the requirement in the Constitution that the Board approve the contract extension and the lack of evidence of such approval; (b) the various "troubling findings" of the Ward IT Report; and (c) the lack of meaningful and cooperative engagement from Ms Atkins with the Board. 633 NAAJA further relied on matters that it submitted supported the proposition that the exercise of the Complaint Right was not a relevantly actuating factor in the Suspension Action: (1) as at 23 November 2022 the Complaint had been "put to one side", as the Board was waiting for Ms Evans' response before determining its next steps; (2) the evidence of NAAJA's witnesses was not suggestive of a vindictive desire to punish Ms Atkins for complaining about Ms Evans; (3) Ms Atkins had made a workers' compensation claim directly accusing the Board of bullying her (although it was not suggested that claim was a reason for the Board taking the Suspension Action); and (4) the Board, actuated by the exercise of the Complaint Right, would have likely proceeded directly to terminate Ms Atkins' employment given that it had the constitutional right to do so. 634 NAAJA further submitted (at [28]): … The Board was facing - at the very least - a very serious potential governance failure: that is, not only that the CEO of a publicly-funded, indigenous legal justice agency was employed pursuant to a multi-million dollar contract that had not been approved according to the Constitution, but that is Chair's signature had been utilised (if not forged) without her knowledge. It was untenable for the Board to permit [Ms Atkins] to continue with her duties whilst this issue was outstanding.

[63]

Ms Rosas' evidence 636 Acceptance of NAAJA's submission that Ms Rosas had a bona fide belief that her signature had been fraudulently used depends upon my acceptance of her as a credible and reliable witness. 637 I accept that a person may have a bona fide belief that something did not occur and yet be objectively wrong, perhaps because of a faulty memory. There is at least one indication in the evidence that Ms Rosas had a faulty memory, being Carol Smith's uncontradicted testimony to the effect that in early November 2022 Ms Rosas had apparently forgotten that she had participated in Ms Atkins' performance review interview about a month prior. 638 As an objective fact, there exists a hard copy original of the Contract Extension Letter with a handwritten signature above the name of Ms Rosas. That is the document that Ms Rosas herself took from the hand of Ms Keightley on 16 November 2022, after Ms Atkins had caused a certified copy to be made of it. I accept that both of those things occurred. It explains how Ms Rosas came to be in the possession of an original document that she claims to have then referred to the police. The certified copy of the original document is in evidence and there is was no challenge to the certification itself. 639 The existence of that document is consistent with the conclusion in the Ward IT Report to the effect that the signed document in NAAJA's information systems was a scanned PDF image of a hardcopy document and that Ms Rosas' electronic signature had not been applied to it. In her evidence, Ms Rosas did not acknowledge the possibility that she may well have signed that document but had forgotten she had done so. Rather, she maintained throughout her evidence that her signature had been forged. Counsel for NAAJA did little to distance the organisation from the serious allegation of fraud as persisted with by Ms Rosas during the trial. It did not present or embrace a "forgetfulness" case. To the contrary, Ms Atkins was cross-examined on the basis that she "well knew" the Board had not renewed her contract, she was challenged on the authorisation of her salary and further challenged on alleged refusals to provide copies of the Contract Extension Letter despite alleged repeated refusals for it. In that and other ways NAAJA invited the Corut to have regard to the objective surrounding circumstances and I have done so. 640 Considering the evidence as a whole, I am not satisfied that Ms Rosas formed a bona fide belief that her electronic signature had been misapplied or that a handwritten signature had been forged, whether on the basis of information that came to her in the weeks preceding the Complaint or at all. 641 Ms Rosas was an unimpressive witness. There are so many problematic aspects of her testimony that I cannot be satisfied that in making the signature allegation she was not relevantly motivated by the Complaint. NAAJA's failure to satisfy the Court of that critical fact has the consequence that it has not demonstrated that those who joined in the Suspension Resolution did not act (at least in material part) on a report of a person who was motivated by a prohibited reason. That conclusion is based on my assessment of the evidence as a whole, including evidence of events that occurred through to the date that the Termination Letter was sent. 642 The Court was informed that Ms Rosas suffered from Parkinsons Disease which affected her speech. There was no suggestion that her memory was affected by the disease. Whilst I did not observe anything unusual in her speech, I have remained mindful of the diagnosis when making observations of her in the witness box. 643 The following features of Ms Rosas' evidence have contributed to my conclusion that I should not act on her evidence other than to the extent that it is supported by reliable evidence of others or reliable documentary records. 644 First, Ms Rosas said in cross-examination that BDO had been engaged by NAAJA to conduct two investigations: one into the Terms relating to Ms Atkins' conduct culminating in the BDO Report, and another relating to matters raised in the Complaint about Ms Evans. No other witness gave evidence about the engagement of BDO to investigate the matters raised in the Complaint about Ms Evans. There was no evidence having such significant implications contained in Ms Rosas' affidavits. It finds no support in any other documentary evidence before me, and was not mentioned as part of NAAJA's case more generally. The assertion is dubious in any event given the evidence of engagement between Ms Evans and BDO discussed below. The evidence is also contrary to Ms Rosas' affidavit evidence (whether or not I accept it) that the "Board" determined that the issues raised by Ms Atkins about Ms Evans were operational matters requiring no further attention. Ms Rosas' assertion that there had been a second investigation by BDO was startling and unconvincing in equal measure, and I cannot accept it. Considered in the context of her testimony as a whole, I consider that Ms Rosas made that assertion to avoid confronting the problem that the issues raised in the Complaint were indeed serious, and because she perceived it would somehow assist NAAJA's case. 645 Second, in cross-examination, Ms Rosas told the Court she had made hard copies of Ms Atkins' correspondence to BDO dated 9 January 2023, that she had distributed those copies to each director who attended at the January Meeting and that the copies had then been destroyed following that meeting. No evidence of such a significant nature was given in her affidavits. No other director deposed to being provided with the correspondence. In cross-examination, other directors positively denied receiving any document at the January Meeting other than the BDO Report. The assertion that the correspondence was provided is implausible given the body of evidence about how the January Meeting transpired and the objective content of the material. I am positively satisfied that Ms Rosas did not in fact distribute the correspondence to the January Meeting or at all. I formed the impression that Ms Rosas gave that evidence in cross-examination to avoid confronting questions about why she did not disclose the correspondence to any other director and as to why she did not permit Mr Taziwa himself to read it and take it into account in the preparation of the BDO Report. The evidence Ms Rosas volunteered in cross-examination on that topic undermines her credibility generally. More substantively, her conduct in withholding the information from BDO and the Board suggests a consciousness on her part that the documents might frustrate an outcome that she otherwise desired, as discussed in the pages that follow. 646 Third, I consider Ms Rosas to have been a principal instigator in decisions designed to ensure that Ms Atkins had no opportunity to respond to the matters referred to BDO for investigation and no opportunity to respond to the "findings" in the BDO Report before it was presented to the Board and the Termination Resolution was made. She provided no rational and coherent explanation for depriving Ms Atkins of any opportunity to respond prior to the Termination Resolution. As discussed below, I find that the obvious unfairness in the processes culminating in that resolution was the result of a deliberate decision of Ms Rosas or a small group that included her. NAAJA has not established that the want of procedural fairness did not form part of a deliberate intent at least on Ms Rosas' part to ensure that BDO produced a report that could form the basis of a resolution to terminate Ms Atkins' employment, and to ensure that exculpatory material was not considered. 647 Fourth, Ms Rosas gave evidence about the December 2017 Minutes recording that a salary increase for a number of managerial staff (including Ms Atkins) had been approved. It is one thing for Ms Rosas to say she had no recollection of the Board passing that resolution. It was quite another to assert that the minutes had been tampered with by a person who could only have been Ms Atkins. I find that the meeting did indeed occur and there was indeed a resolution that the salaries be increased in accordance with the recommendation of an external consultant. That is made plain by the evidence of Ms Ellis who said that she voted in opposition to the management staff receiving a pay rise at that time, as is recorded in the minutes. It is also consistent with the letter sent to Ms Atkins in 2017 by the then Chairperson confirming that the Board had approved that increase. There was no attack on the authenticity of that document. It speaks for itself. It is true that the minutes of a related FAR Committee meeting are irregular. But I simply cannot accept that Ms Rosas could have a genuine belief that the Board had not approved the salaries of the managerial staff at that time. I consider that aspect of her evidence to form a part of a pattern in which she sought to avoid confronting questions about her knowledge of objective facts by denying them outright: in this instance by making a very serious allegation that the person who prepared the minutes (who she suggested was Ms Atkins) had fraudulently manipulated them to record a resolution that had not in fact been made. In this aspect of her evidence Ms Rosas displayed a level of sophistication and ill-will toward Ms Atkins that has caused me to approach all of her evidence with great caution. 648 Fifth, in common with other witnesses, I am not satisfied that Ms Rosas made a full and frank disclosure of the reasons for joining in the adverse actions in her evidence-in-chief, further undermining my confidence in her evidence more generally. In unguarded moments in cross-examination Ms Rosas disclosed the full extent of her feelings about Ms Atkins' conduct in the period following their telephone discussion on 15 November 2022. It is plain that as at (at least) the time of Ms Ellis' email in mid December, Ms Rosas had formed the view that Ms Atkins should be terminated because the relationship of "trust and confidence" had broken down. As explained below, I am not at all convinced that her opinion in that regard had anything to do with historical frustration over (for example) Ms Atkins' failure to arrange a scribe for Board meetings. Rather, her view that the relationship had broken down was referrable in large part to her beliefs (correct or otherwise) that Ms Atkins had accused her of bullying, that Ms Atkins had said defamatory things about her and other directors, and that Ms Atkins had reported NAAJA to the NT ICAC. She disclosed by that evidence her feelings about an "unworkable" relationship resulting from a conflict that emerged following her own allegation that Ms Atkins had committed a fraud. That evidence is qualitatively different to the reasons contained in her affidavit evidence-in-chief for losing confidence in Ms Atkins' performance in her role as CEO. The existence of additional and previously undisclosed reasons affects my assessment of Ms Rosas' reliability more generally, irrespective of whether the additional disclosed reasons are relevantly connected with the workplace rights. 649 Sixth, in the course of her cross-examination more generally I formed the view that Ms Rosas was evaluating her responses with an eye to the consequences of her answers. More than once she was provided with guidance about the importance of responding to a question. At times she gave evidence that was not in response to a question, but readily volunteered information to pro-actively correct the impression she perceived might be given by a document. 650 Seventh, I found Ms Rosas' attitude to questions about whether the Vehicle Scheme had been approved by the Board in 2015 to be argumentative and evasive. Consistent with other aspects of her evidence I consider she was attempting to avoid confronting objective evidence on that topic in a sensible and rational way. 651 Ms Rosas' allegation that Ms Atkins had not provided a copy of her "contract" in response to several requests for it from June 2022 is not supported by objective evidence. I am not satisfied that she made any requests for the contract, other than those evidenced by emails of mid October and early November 2022. In her affidavit, Ms Rosas said that she "decided" at the June Meeting to ask for a copy of the document, and that she then in fact asked for it when she and Ms Atkins drove from Katherine to Darwin afterward. Then, in cross-examination she claimed that she had asked for a copy at the June Meeting itself. I do not accept the evidence she gave in cross-examination (nor the evidence of Ms Moore) on that topic. The assertion that she had made several verbal requests was lacking in detail as to when she did so and how Ms Atkins responded. Most significantly, I consider that the two written requests for copies of the document were made in a fashion that do not support her claim that there had been repeated earlier requests that had not been responded to. Both of those requests were responded to promptly. There was nothing in the exchanges to suggest that there had been a history of prior requests that had gone unheeded. I am left with the impression that the evidence about prior requests was constructed so as to support the claim that she had concerns about the non-approval of Ms Atkins's salary from June 2022 and that Ms Atkins had been uncooperative in a way that had further heightened those alleged concerns. 652 Ms Rosas said that she asked for the contracts for multiple employees in her emails so as not to let on that she was singling out Ms Atkins. Her evidence on that topic was unconvincing. I find that Ms Rosas sought a copy of the contract not because she had become "shocked" about Ms Atkins' salary in June, nor because she had concerns the salary was not approved, but for more innocuous reasons (to discuss with KPMG and to assist with Board discussions about the salary for an incoming managerial employee). The suggestion that Ms Rosas had genuine concerns about any non-approval of Ms Atkins' salary or non-approval of her contract extension from June 2022 onward is also difficult to reconcile with her conduct in telling Ms Atkins she had done a good job at the performance review interview on 5 October 2022 and in her praiseworthy email correspondence to Ms Atkins in the period prior to the Complaint.

[64]

Objective circumstances 653 The cross-examination of Ms Atkins went to the topic of whether there was indeed a resolution of the Board to approve the extension of her contract for the period 1 July 2020 to 30 June 2025, Counsel for NAAJA challenging Ms Atkins for her failure to put on evidence to prove the existence of the resolution. In agitating that topic, NAAJA did not adduce records in its own possession that would positively establish that no resolution had been made. To the extent that NAAJA continues to assert that there was in fact no Board approval for the extension of the contract (a submission made to buttress Ms Rosas' asserted belief), it was open to NAAJA to adduce minutes of Board meetings in the lead up to the expiry of the earlier contract to establish the negative. It did not do so. The Contract Extension Letter commences with the words "Due to an extension in the funding of your position" and yet NAAJA made no attempt to show that the contract extension and associated salary was not in fact funded and budgeted for. There was no suggestion by any other director that the salary paid to Ms Atkins from 1 July 2020 was not funded or budgeted for. 654 In closing submissions, NAAJA submitted that "[t]he Board started to develop concerns about whether the correct process had been followed in determining executive terms and conditions in June 2022, when [Ms Aktins] sought - and was refused - a retrospective salary increase for herself and other managers". The submissions state that it was at that time that Ms Atkins' salary was "disclosed to the Board". The latter submission suggests that the salary was not and could not previously have been known. Those submissions misstate the evidence. There is nothing to indicate that in June 2022 the "Board" had any concerns at all about "whether the correct process had been followed" in determining the terms and conditions of executive employees, whether Ms Atkins or otherwise. There was a decision made in June 2022 to reconfigure a remuneration committee, but that occurred because a submission that had been made at that meeting by Ms Atkins on behalf of several management staff for pay increases in light of increased responsibilities and accountability. It is a mischaracterisation of the evidence to say that other directors of the Board from June 2022 had concerns that Ms Atkins' prior salary increases had been secured by improper processes. 655 The most unusual aspect of the signature allegation is that from 1 July 2020, Ms Atkins continued to attend at the workplace in full view of other staff and the Board, and that she was in fact paid the salary set out in the Contract Extension Letter. The salary paid to Ms Atkins was consistent with that approved by the Board in 2017 together with CPI increases explained by the agreed fact that the EA applied. There is no evidence to suggest that as at 1 July 2020 any director expressed any alarm at the circumstance that Ms Atkins had turned up for work on that day on an unapproved salary and without an approved contract. In the absence of evidence to the contrary, it is reasonable to infer that all directors were aware that NAAJA was continuing to pay a salary to its CEO who continued to perform the duties of a CEO from 1 July 2020 with the Board's approval. There was nothing secretive about Ms Atkins' conduct in performing her duties and receiving her salary. There were multiple performance reviews in that period and no alarm was raised about the fact of Ms Atkins' ongoing employment. In light of those circumstances, Ms Rosas' allegation that she genuinely believed Ms Atkins had affected a fraud on the Board by securing for herself a renewal of her contract (and a pay rise to boot) without Board approval is so highly peculiar that it invites careful scrutiny as to its genuineness. 656 To the extent that NAAJA persisted with the submission that there was "no evidence" that the Board approved the extension of the contract, I reject the submission. The inference of approval may readily be drawn from the circumstances I have just mentioned. That inference could be displaced by positive proof that there was no such approval, but that is not how NAAJA ran its case. Through to closing submissions the highest it was put was that there was "no evidence" of approval. The director who most forcefully asserted that there was no approval for both the contract extension and the salary was Ms Rosas. I have already explained why I do not consider her to be a reliable witness.

[65]

Other disputed issues 657 There are five further issues potentially relevant to Ms Rosas' state of mind arising on the evidence. 658 The first is Marilyn Smith's evidence that Ms Rosas and Ms Evans travelled from Darwin to Alice Springs together for the First November Meeting and that they arrived together. I do not make a finding on that issue because it was based to some extent on supposition and I do not consider it to be significant. 659 Second, I do not make any finding to the effect that Ms Evans attended part of the in-camera session on the first day of the First November Meeting. That assertion was made by Ms Atkins based on her observation of Ms Evans leaving the meeting room, but it finds no other support in the evidence and was contradicted by at least Marilyn Smith. 660 Third, it is to be recalled that Ms Atkins said in cross-examination that she wrote to Mr Taziwa because she had been told that he was investigating her at Ms Evans' request and she also said that Mr Taziwa was a friend of Ms Evans. I make no finding based on those assertions because they were volunteered for the first time in the course of cross-examination and found no expression in Ms Atkins' evidence-in-chief. 661 Fourth, there is Carol Smith's evidence that in a morning break in the First November Meeting, Ms Rosas conducted an informal "poll" by asking which directors would stay on as directors of the Board if Ms Atkins' employment was terminated. That evidence was corroborated by Mr Hill. I found Mr Hill to be a particularly impressive witness and I accept his evidence and the evidence of Carol Smith on that particular topic. The topic is too specific to be the product of a faulty memory of them both. Ms Rosas' words suggest that as early as the First November Meeting, she had in contemplation asking the Board to join in a resolution for the termination of Ms Atkins' employment. I afford some weight to that circumstance, but it is but one of many features of the evidence to be taken into account in determining whether NAAJA's onus under s 361 of the FW Act is discharged. 662 Fifth, there is Marilyn Smith's evidence that Ms Rosas told the Board at the First November Meeting that she had already provided Ms Evans a copy of the Complaint. Ms Rosas denied that she had said that, and further denied that she had in fact sent the Complaint to Ms Evans before the meeting. Other directors denied it had been said. However, Marilyn Smith's evidence on that topic was supported by Mr Hill. I place considerable weight on Mr Hill's evidence. In addition, I consider the email Ms Rosas sent to Ms Evans after she raised the issue with the Board to be phrased in a way that lends some support to what Marylin Smith and Mr Hill said. Ms Rosas emailed the Complaint to Ms Evans in terms that were so perfunctory that it does suggest that Ms Evans was not then hearing about the Complaint for the first time. The inference that the Complaint was indeed sent to Ms Evans by Ms Rosas before the First November Meeting is reinforced by other evidence showing Ms Evans was later involved in a series of steps leading to Ms Atkins' termination, including by communications to which Ms Rosas was a party (discussed below). The inference that Ms Rosas did indeed send the Complaint to Ms Evans before the First November Meeting can be drawn more confidently in the absence of evidence from Ms Evans to contradict it. 663 In light of the evidence discussed so far (and some of what is to follow) the evidence does not support a finding that Ms Rosas formed a genuine belief that her signature had been fraudulently misused. Given the temporal coincidence and in light of the evidence as a whole, NAAJA had not established that Ms Rosas' motivations in making the signature allegation to the Board at the First November Meeting was not done for reasons that included the Complaint.

[66]

Other directors and the Suspension Resolution 664 It was submitted by NAAJA that if the Court were not satisfied that Ms Rosas' beliefs were bona fide that would not result in NAJAA failing to discharge its onus, because the motivations of every other director could not be said to be infected with any prohibited reason. For example, NAAJA submitted that it would be enough to show that a bare majority of directors were not motivated by the Complaint when they voted in favour of the Suspension Resolution. 665 I reject that submission. It forms a necessary part of NAJAA's onus to prove that Ms Rosas was not motivated for reasons that included the fact that Ms Atkins had made the Complaint. If that onus is not discharged, I cannot be satisfied that the decision of the Board was not based upon a non-genuine report of wrongdoing made by a person who was actuated by the Complaint. In other words, in the unique circumstances of the present case, the employer's onus included the task of persuading the Court that there was no relevant intermeddling with and influencing of an employer's decision of a similar kind discussed in the authorities cited at [610] to [612] above. It is not necessary to find an exact factual analogy. Each case must turn on its own facts. 666 I make the following findings with respect to the remaining directors. 667 Mr Hill did not vote in favour of the Suspension Resolution because he did not consider there was a sufficient basis to suspend Ms Atkins from her employment. 668 Ms Moore told the Court that she joined in the Suspension Resolution because she had formed her own view that the signature appearing on the Contract Extension Letter appeared to be different from a signature appearing on Ms Rosas' "personal cards". However, in cross-examination she said that Ms Rosas showed her the "personal cards" in December. I do not accept that Ms Moore had independently formed a view about the misuse of the signature in the manner she described at the time that she joined in the Suspension Resolution. I do not consider her to be a reliable witness for that and other reasons, discussed below. 669 I am satisfied that the other directors who voted in favour of the Suspension Resolution assumed that Ms Rosas had a bona fide belief either that her electronic signature had been misapplied to the Contract Extension Letter or that her signature had been forged by handwriting. For the most part I consider the other directors to have so depended upon Ms Rosas' status and word that they were prepared to take action so obviously prejudicial to Ms Atkins without first independently exercising their own minds in scrutinising the issue before them. They did not outwardly discuss the possibility that Ms Rosas was mistaken in her recollections. They did not do the obvious thing and review their own past minutes to ascertain whether there was any credence to the allegation that Ms Atkins had "given herself a pay rise" before suspending her from her employment (something Mr Ward had not been instructed to do). Whilst they referred to the Ward IT Report, a moment's reflection would have revealed that Mr Ward had not interrogated the original document bearing a handwritten signature and nor had he been asked to do so. A brief consideration of the attachments to the Ward IT Report would have revealed that Ms Keightley had prepared a spreadsheet from which salaries were drawn to populate template letters to a list of staff members. The possibility that Ms Rosas had been asked by means other than email to sign a printout of the letter simply wasn't considered or discussed. With the exception of Mr Hill, the degree of naivety and lack of engagement by other directors supports my conclusion that they voted in favour of the Suspension Resolution because of the degree of trust reposed in Ms Rosas as the Chairperson of NAAJA's Board. I therefore accept NAAJA's submission that the other directors proceeded on the assumption that the allegation was bona fide. 670 However, that does not mean that NAAJA has discharged its onus under s 361 of the FW Act. As I have said, in the particular circumstances of this case, it formed a part of NAAJA's onus to show that the adverse action presently under consideration was not done on the basis of an allegation or report made by a person who was actuated by the Complaint.

[67]

Evidence showing the involvement of Ms Evans 671 As discussed above, on the morning of 11 November 2022 (the second day of the First November Meeting), Ms Evans sent an email to Ms Rosas stating "90% of her written complaint is to undermine, Harras [sic] and bully me" and "[t]his whole thing is designed to push me out". She asked the Board to say what guarantee she had that Ms Atkins would not "sack" her, and how she would be "protected from such behaviuor [sic]". On the basis of that email I find that Ms Evans saw the Complaint and Ms Atkins' ongoing employment as CEO as a serious threat to the security of her own employment and she was imploring the Board for protection, albeit in an email only sent to Ms Rosas. 672 The evidence discloses a degree of substantial involvement by Ms Evans in (at least) the engagement of BDO and in ongoing dealings with BDO up to and after the completion of the BDO Report upon which the Board relied. Whatever be the explanation for that involvement, it is not disclosed in the evidence. 673 NAAJA's case is to the effect that the decision to engage BDO was made by "the Board". Ms Rosas deposed that BDO was engaged in November 2022. However, she also said that a meeting between her, Mr Brown and Mr Taziwa "led to the Board engaging BDO" (my emphasis). Ms Rosas also said that it was Ms Evans who recommended BDO to the Board but she did not state when and how that occurred. The other witnesses did not adequately explain when, how and by whom a decision to engage BDO was made. Some directors did not depose to having contemporaneous knowledge that it had occurred at all. 674 Any meeting that "led to the Board engaging BDO" (as alleged by Ms Rosas) could not have occurred until after 22 December 2022 when Mr Brown first introduced himself to Mr Taziwa by email (after he obtained his contact details from Ms Evans) and arranged a preliminary meeting. In the absence of evidence to the contrary, I infer from his email that prior to that time Ms Evans had already "briefed" Mr Taziwa about "what we required". Mr Taziwa's response does not disclose ignorance about Ms Evans or suggest that no such brief had been given. 675 There is direct evidence that Ms Evans recommended the use of Mr Taziwa for the purposes of the investigation he then carried out. At the very least, the evidence supports a finding that Ms Evans had sufficient information about the subject matter of what was later to become to the Terms to brief Mr Taziwa as to what was "required". All of that had occurred before Mr Brown's email of 22 December 2022 which proposed a first meeting with others. On the material before me I am not satisfied that Ms Evans' involvement can be explained away by her merely performing administrative tasks in connection with BDO's engagement and subsequent investigation, nor am I satisfied that she was merely implementing the decisions of others in accordance with their instructions. NAAJA did not present a case to explain her involvement in that way in any event. 676 The Board minutes over the relevant period contain no resolution for BDO's engagement (notwithstanding that it can be assumed to have involved the incurrence of an expense), nor do they evidence any general deliberation occurring at a Board meeting as to whether any external "auditor" should be engaged at all to investigate Ms Atkins' conduct. Nor is there any evidence that the Board gave Ms Evans the task of seeking out an appropriate auditor or providing the auditor with a briefing of any kind. 677 Ms Atkins was required to deliver up her laptop to a process server by letter dated 22 December 2022, that is before there was a first meeting with Mr Taziwa. On the evidence before me, the persons who had at that time been in contact with Mr Taziwa before 22 December 2022 were Ms Evans and Mr Brown. If the laptop was seized to aid BDO's "investigation" that occurred before the meeting that occurred on 23 December 2022. However, emails passing between directors in mid December 2022 make no reference at all to there being a wider investigation of Ms Atkins' conduct. What precisely was occurring throughout December 2022 in response to any "concerns" allegedly raised by directors about Ms Atkins is clouded in obscurity. 678 The inference arises that Ms Evans "briefed" Mr Taziwa as to "what was required" prior to and independently of any decision by any director to engage him. At the very least, I am not satisfied that the decision to engage him was made at the level of the Board and I reject Ms Rosas' assertion on that topic. That is a critical topic about which Ms Rosas could be not merely be mistaken. I consider that her evidence on the topic was given with a view to suggesting that the instigation of the investigation was done with the knowledge and collective agreement of the whole of the Board. I find that it was not. 679 Ms Evans was in attendance at the December Meeting. Those minutes record that Mr Assan "raised the progress of the investigation for the Executive Services Coordinator and the CEO" and Ms Ellis asking "what exactly were the Board going to be investigating". That indicates some awareness of an investigation relating to the signature allegation, but it does not evidence any intention or decision by the Board at or before that time to engage BDO to engage a wide ranging investigation into other alleged misconduct by Ms Atkins. Neither Ms Ellis nor Mr Assan suggested they were aware of any such intention as at the date of the December Meeting. I find that to be the case irrespective of whether there were allegations or rumours then circulating about misconduct on Ms Atkins' part. 680 None of NAAJA's witnesses personally drafted the Terms. None of them said from their own knowledge who had done so. The Terms are considerably broader than the four topics mentioned in the handwritten notes of the meeting on 23 December 2022. The closest testimony on that subject was Ms Rosas' asserted assumption that the author of the Terms "would probably be" Mr Brown. The person who must know that is Mr Brown himself, but he did not give evidence. The evidence before me is not sufficient to support a conclusion that he drafted them, nor as to the source of the concerns underpinning them. Nor does the evidence satisfy me that Ms Evans played no part in deciding what subject matter should be investigated and what documents should be provided. 681 The BDO Report itself refers to two meetings having taken place. First, there is reference to an "opening with the management and key stakeholders", followed by these dot points: • Developed a high-level understanding of the process; • Discussed any key concerns or areas with uncertainty in the existing process with the entity's key officers; • Confirmed and finalise client service expectations and project timetable/deadlines. 682 The identity of the "management", "key stakeholders" and "key office holders" is not disclosed. The words "management" and "key office holders" would naturally encompass NAAJA's CFO. That is supported by a further express disclosure in the BDO Report that there was a meeting with the "Acting Chief Executive Officer, Chief Financial Officer and Senior Revenue Officer" (my emphasis). That disclosure is followed by these dot points: • Held a meeting with Acting Chief Executive Officer, Chief Financial Officer and Senior Revenue Officer and obtained an understanding of the existing process and the system functionalities. • Performed a walkthrough and review of documentation associated with the employee entitlements, legal expenses, credit card purchase processes and procedures. • Obtained details and documents for the period agreed for testing (From January 2017 to current). • Assessed the adequacy of design of the controls to manage risks and operating effectiveness. • Testing the documents and records in relation to common business practices and minimum expected standards and legislation. 683 None of the persons present at the meeting referred to in the first dot point gave evidence. The person who provided the details referred to in the second and third dot points are not named. The evidence does not satisfy me that that person was not Ms Evans. In and of itself, the BDO Report reveals a level of substantive involvement by Ms Evans in the process of briefing and then assisting Mr Taziwa. 684 Under the heading "Completion" there appear the following dot points: • Documented the results of the testing, includes details of any identified issues and obtain response from the relevant staff to confirm whether further documentation exists in relation to the findings. • Conducted an exit meeting following completion of the fieldwork to discuss the results of our work and validate findings. 685 The BDO Report does not identify the relevant staff who responded to confirm whether "further documentation exists in relation to the findings" and what they said or provided in their responses. It does not state who attended the "exit meeting" to discuss the results of the work and to "validate" the findings contained in the Report. It is unclear what it means to "validate" findings nor is it clear what process was employed to do so. None of the directors disclosed having any involvement with BDO of the kind discussed. 686 The "period for testing" described in the BDO Report is from January 2017, and yet it is plain that BDO had been provided with select documents dating back to 2014, but not others. More specifically, the BDO Report states"[f]rom the documents reviewed, we noted that the Chief Executive Officer was funded for the personal purchase of 9 vehicles with a total value of $346,907 from September 2010 until August 2014". There is no reference to Mr Rossingh's memo or the Board minutes of 2015. The person whose responsibility it was to provide BDO with all relevant documents is not identified. None of NAAJA's witnesses assumed responsibility for providing BDO with information upon which it ultimately acted. I conclude that the persons who did so were absent at the trial. 687 Contrary to Ms Rosas' assertion, the evidence does not support a finding that there was a decision made at the level of the Board to engage BDO. Rather, it is more consistent with a scenario that I find that from late December 2022, actions leading up to the Termination Letter were the result of actions of a select group of people of which Ms Evans formed a part. 688 Later correspondence reveals that representatives of BDO corresponded with Ms Evans by email, including by referring to her by her first name. The correspondence shows that Ms Evans was also provided with an updated BDO Report by way of an email that referred to the use NAAJA might make of it before the "Commission". In the context of other evidence that may be understood as a reference to the Fair Work Commission proceeding commenced by Ms Atkins in late January 2023. Precisely why Ms Evans was dealing with BDO in connection with material NAAJA might use to defend its position in the "Commission" is not explained. 689 The evidence also shows that on 17 February 2023 NAAJA's lawyer sent an email to four recipients being Ms Rosas, Ms Evans, Mr Brown and Mr John Paterson. The email begins "hi all" and refers to Ms Atkins' response to the Updated Allegations Letter. It shows a degree of normality in its inclusion of Ms Evans in the lawyer's communication to a select group of recipients. The recipients were asked to read and carefully consider Ms Atkins' "(partial) responses" and to advise when they would be available to discuss them. 690 I infer that Ms Evans had earlier been provided with the Updated Allegations Letter; she would not otherwise be asked to participate in a conversation about Ms Atkins' response. The reason why Ms Evans was included in a communication to a small circle of recipients (which did not include other directors) in connection with matters so closely related to Ms Atkins' dismissal is left unexplained in the evidence. 691 At the very least, the evidence supports an inference that Ms Evans played a substantive role in the provision of information to BDO that culminated in the "factual findings", and that she was then part of a small group asked whether Ms Atkins' response to the matters investigated was adequate. The objective fact is that Ms Evans was party to that communication and yet most directors of NAAJA were not provided with Ms Atkins' response nor were they asked for their view about it. 692 NAAJA's failure to explain that state of affairs creates a significant obstacle in the discharge of its onus under s 361 of the FW Act. That is principally because the witnesses gave no evidence capable of persuading me that Ms Evans had no substantial involvement in the series of events leading to the drafting of the Terms, the Termination Resolution, the Allegations Letter, the Updated Allegations Letter and the Dismissal Action. In their evidence-in-chief they simply did not address the issue.

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Other witness impressions 693 The evidence of Ms Ellis largely did not assist NAAJA's case. 694 Ms Ellis recalled voting against a resolution to increase Ms Atkins' salary in 2017. In addition, she recalled the Board "going bezerk" in 2015 over the Vehicle Scheme. She asserted that at the First November Meeting other directors had raised allegations about Ms Atkins but claimed not to recall the context in which they were made. She then acknowledged that it was she who had told the Board that Ms Atkins had used NAAJA funds to buy vehicles, thus disclosing an awareness that more than one vehicle had been purchased under the Scheme. The "concern" was raised by her in relation to matters that had occurred seven years in the past that she knew that the Board had been informed about in 2015. Ms Ellis gave no explanation for raising that as an allegation of wrongdoing so soon after the Complaint was made. She did not suggest that she had only just come into possession of information in relation to the Vehicle Scheme or Ms Atkins' involvement in it that was not previously known to her or to the Board in 2015. 695 In cross-examination, Ms Ellis was at times non-responsive, predicting where the questioning might be going and volunteering unsolicited information she perceived might help NAAJA's case. She was particularly unresponsive and argumentative when questioned about the Vehicle Scheme. She acknowledged that she knew that there existed a scheme in 2015 by which management staff were provided with vehicles from finance provided out of NAAJA's funds. She was aware that the Board had required that the Vehicle Scheme cease and made resolutions for the repayment of amounts referable to FBT and to pay amounts then owing on vehicles. Her responses about her prior knowledge on the topic was otherwise distracted and argumentative. She asserted that Ms Atkins' use of the Vehicle Scheme formed a part of a "pattern of dishonesty" but did not explain how she reconciled that view with the fact that the Scheme had been established before Ms Atkins commenced her employment with NAAJA. She did not suggest that Ms Atkins had established the Vehicle Scheme, nor did she articulate how it was that Ms Atkins' participation in the Scheme amounted to dishonesty. 696 Ms Ellis tended to interrupt questioning to volunteer opinions, typically accompanied by a sense of outrage about the Vehicle Scheme. In those aspects of the cross-examination I formed the view that Ms Ellis had asserted a sense of outrage in order to interrupt and avoid questions pointing out that she had been aware of the Vehicle Scheme and the matters she complained of since 2015. She repeatedly reverted back to the number of vehicles Ms Atkins had acquired under the Vehicle Scheme without explaining how it was that Ms Atkins had acted other than in accordance with the Scheme. 697 Ms Ellis disclosed an awareness that five other staff had acquired vehicles under the Vehicle Scheme, but BDO was not tasked to investigate their participation in it. She went so far as to assert that "they" (in a context that included Ms Atkins) managed to "hide" the Vehicle Scheme from the Board, then asserted that the former CFO who established the Scheme should be brought to account, as should NAJAA's auditors who she alleged failed to pick it up. 698 Notwithstanding all of that outrage, it remains that Ms Ellis raised an allegation in November 2022 (immediately after the Complaint) that Ms Atkins has used NAAJA funds to purchase vehicles (plural). She had an opportunity in her evidence-in-chief and in cross-examination to explain why she raised that allegation at the time that she did, but no explanation was forthcoming. 699 In addition, when challenged, Ms Ellis accepted that the reasons given in her affidavit for the joining in the Suspension Resolution were not complete. I do not consider Ms Ellis' evidence in her affidavit to have been full and frank with respect to the reasons for that and other actions. It emerged in cross-examination that there were multiple issues at play in her own mind, repeating over and again that Ms Atkins had given NAAJA no opportunity to talk, had threatened people, engaged in a smear campaign and made a report to the NT ICAC. Those were plainly matters that informed her view that the relationship between NAAJA and Ms Atkins had broken down. Her disclosure of them for the first time in cross-examination causes me to lose confidence in the brief assertions contained in her affidavit about her reasoning. 700 Ms Garlett's cross-examination was characterised by a failure to recall and a failure to give a coherent account of her reasons for participating in the adverse actions. She disclosed a lack of real engagement with the BDO Report and a lack of interest in any response Ms Atkins could give to it. I formed the impression that she gave what she considered to be convenient answers, rather than attempting to give a frank response to questions that required one. Like some other witnesses, Ms Garlett referred to a "lack of trust" in Ms Atkins, but in cross-examination she explained that conclusion by reference to things Ms Atkins had said and done in response to the actions NAAJA itself had taken against her. 701 Ms Garlett said that she shared the view expressed in Ms Ellis' email of 14 December 2022 that it was not tenable that the Board could have a working relationship with Ms Atkins. She acknowledged that she held that view even though she did not have any evidence at that time to support any wrongdoing by Ms Atkins. She agreed that the Board decided to undertake the BDO investigation to find evidence that would support an end to the working relationship. She denied that one of the reasons she held an adverse view about Ms Atkins was because she had made the Complaint. 702 As with other witnesses, I do not consider the brief and bare denials contained in Ms Garlett's evidence should be afforded any significant weight. I do place considerable weight on her acknowledgment that the purpose of the BDO investigation was to find evidence that would support a decision to dismiss Ms Atkins because "we needed evidence". Apart from its substantive significance, that acknowledgement supports a finding that Ms Garlett had some substantive involvement in the decisions and processes culminating in the presentation of the BDO Report to the rest of the Board. 703 Ms Moore's responses to questioning concerning the difference in treatment between Ms Evans and Ms Atkins was unconvincing. I formed the view that she was falling back on semantics to explain why she considered Ms Evans should be afforded natural justice but Ms Atkins should not. I also formed the impression that she resorted to ignorance and naivety in response to questions on difficult topics. She disclosed an awareness that BDO had been asked to conduct an "investigation" into intentional wrongdoing without affording Ms Atkins an opportunity to provide information or documents. Her attempts to explain or justify that procedure were wholly unimpressive and I do accept that she was frank with the Court in relation to that topic. That undermines her credibility more generally with the consequence that I do not accept the denials contained in her affidavit. The overall effect of Ms Moore's evidence was that she had a careless attitude to any exculpatory information Ms Atkins might provide to the allegations raised in the Terms. When questioned about the Terms themselves it appeared to me that she was reading and considering them for the first time. 704 Her conduct as a witness and the content of her testimony is not consistent with that of a director truly concerned to identify whether there had in fact been wrongdoing on Ms Atkins' part. 705 Ms Assan typifies a number of witnesses who may best be described as disengaged and unwitting. She is among a number of witnesses who were not aware of the engagement of BDO until the January Meeting. Like most other directors, she had no involvement in events following the January Meeting and I find she was ignorant of them. That is not a criticism of Ms Assan as a witness. It simply reflects the objective fact that some of the actions said in NAAJA's pleading (or by Ms Rosas) to have been done through the organ of NAAJA's Board were not done at the level of the Board at all. 706 I have already explained why I have not accepted Ms Atkins' evidence with respect to discrete topics. NAAJA made extensive submissions as to her credit. What was lacking was an identification of any critical factual issue turning on an assessment of her veracity as a witness. Whilst there are many issues in dispute, hardly any of them turn on a contest of oral testimony between Ms Atkins and any other person. It should by now be plain that the weaknesses in NAAJA's case do not stem from any finding about Ms Atkins' credibility. To the extent that I have made any positive finding in Ms Atkins' favour it is not made solely on her testimony but also by reference to reliable corroborating documents. 707 Ms Atkins in her first affidavit wrongly stated that her performance review report of October 2022 had been prepared by representatives of NAAJA. In her second affidavit she said that the report had been prepared by her. On its face, the report is one that is obviously prepared by Ms Atkins, including because it is expressed in the first person. Ms Atkins should have expressed her second affidavit as being in the nature of a correction of what she had said in the first. However, I do not consider that failure of itself to warrant a rejection of the rest of her evidence. 708 Ms Atkins was then criticised for seeking letters of support from NAAJA employees and external stakeholders following her telephone call with Ms Rosas on 15 November 2022 and for not disclosing to those persons the fact that the signature allegation had been made. I do not consider that conduct to reflect poorly on Ms Atkins character or on her veracity as a witness in the proceeding. The conduct in seeking letters in support may be understood as a natural and logical reaction of a person who had been accused of committing a fraud including for the purpose of unilaterally extending her own contract and giving herself a pay rise. The behaviour is explained by a justified fear that her employment was in peril. 709 Ms Atkins otherwise gave perfunctory answers to questions in cross-examination and for the most part she did not meet the eyes of the cross-examiner. I consider that to be a product of the style of the cross-examiner. The questions lent themselves to yes or no responses, and that is what the cross-examiner got. I accept that some of Ms Atkins' responses could be interpreted as inconsistent with other responses, but that might depend on propositions contained in the questions. It was open to Counsel to challenge Ms Atkins in a way that required greater elaboration and exploration, but in my view Ms Atkins' blunt responses do not of themselves support a finding that she was evasive of or dishonest. 710 There is one factual contest that does turn on the competing testimony of Ms Atkins and Ms Rosas, namely the words spoken during the telephone call (or calls) on 15 November 2022. I prefer the evidence of Ms Atkins on that topic given the poor impressions I have formed of Ms Rosas as a witness expressed earlier. However, even if I was to accept Ms Rosas' version of the conversation it would do little to advance NAAJA's case. If Ms Atkins was "hysterical" or enraged at that time, to my mind that is an explicable outward response to the extreme nature of the allegation that Ms Rosas was making against her. To the extent that it was submitted that Ms Atkins was non-cooperative by failing to attend at the office to provide Ms Rosas with a copy of the Contract Extension Letter I do not accept that submission and nor do I consider there to be a proper objective basis for any NAAJA director to form that view. Little turns on that topic in any event because whilst the submission of non-cooperativeness was made, no director (other than perhaps Ms Rosas) expressed the view that Ms Atkins was non-cooperative merely because she did not attend work on that day as she had been told. Ms Atkins' conduct in having a certified copy taken of the Contract Extension Letter was not an act of defiance, but an act of self-protection. She had previously told Ms Rosas where the original of the letter was located Ms Rosas had no difficulty obtaining it from that location.

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Source of allegations culminating in the Terms 711 NAAJA's evidence as to who first raised concerns about Ms Atkins, when they did so and why they did so at the times that they did was vague and variable. There was not a coherent body of testimony to support findings as to what was said, by whom, when they said it and why they said it. NAAJA's submission that "concerns emerged" is as vague as the evidence itself on that topic. The overall effect of the evidence is that immediately following the Complaint, Ms Ellis and Ms Rosas raised some serious allegations that damaged Ms Atkins' standing before the Board. 712 A notable feature of the evidence is that some directors are said to have raised concerns about misconduct on Ms Atkins' part as early as the First November Meeting, and yet the information on which those concerns were based is of a kind that must have been known to them for years beforehand. There is no coherent body of evidence to support a finding that those directors who raised the "concerns" (which is unclear in any event) only recently became appraised of the information on which their concerns were based. None of them suggested that was so. 713 I have already observed that the minutes of the December Meeting do not demonstrate discussions occurring at the Board level about concerns of misconduct of the kind that culminated in the Terms. Ms Ellis' email correspondence in mid December does not evidence ongoing discussions about something so significant as misconduct on Ms Atkins' part of the kind later investigated by BDO, nor does it suggest that the engagement of BDO was at that time within her own contemplation. 714 In addition, to the extent that there was some evidence of concerns of misconduct, it went only to a portion of the factual subject matter ultimately referred to in the Terms. The source of the remainder is unexplained. I do not accept NAAJA's submission that the Board learned of misconduct on Ms Atkins' part in the period immediately after the Complaint by sheer happenstance, resulting in a resolution at Board level to engage BDO to investigate them. I find that the witnesses called by NAAJA simply could not explain who drafted the Terms, nor did they consistently explain the source of the information on which they were based so as to enable those sources to be tested. 715 Ms Garlett's evidence on the topic of how the Terms came to be devised was particularly confusing. Ultimately, she acceded to the proposition that prior to January 2023 NAAJA did not have evidence to prove that Ms Atkins had done anything wrong, confirming "we needed evidence". 716 Ms Shannon initially said that the matters to be investigated by Mr Taziwa were decided "by the Board" and claimed that she was there when the allegations were formulated. I give no weight to that evidence given the vague and confusing and inconsistent testimony that immediately followed. 717 May Rosas said that the "full Board" engaged Mr Taziwa, but that assertion is contradicted by directors who had no prior knowledge of the investigation until the January Meeting. Ms Maymuru was silent on the topic, as were other directors. 718 Ms Ellis said that she was part of a decision to engage BDO but did not say that that decision was made at the level of the Board. She could not give evidence of her own recollection about how "the Board" set the parameters for the investigation. She did not disclose that she attended any meeting with Mr Taziwa. She described the signature allegation as the "pressing thing" and said that the BDO investigation was also prompted by the KPMG Report. No other witness directly connected the KPMG Report with the decision to engage BDO and the subject matter of the Terms are not readily aligned with the subject matter of KPMG's findings in any event (as to which see below). 719 Ms Moore said that the Board agreed at a "meeting held in December 2022" to engage Mr Taziwa. Given the absence of evidence of a Board meeting at which such a decision was made (and the ignorance of several directors that it was made), I consider that evidence may be a reference to the meeting held with Mr Taziwa on 23 December 2022 attended by a select few. 720 Carol Smith had a recollection of a "Zoom" meeting with Mr Taziwa but said nothing insightful as to what had occurred. 721 Mr Hill gave generalised evidence about a decision to follow a paper trail relating to the signature allegation. But he also said he had not seen the Terms before the January Meeting and that he did not know how the matters referred to in them had come to the Board's attention. 722 As I have mentioned, handwritten notes of a meeting dated 23 December 2023 are in evidence, but they are sketchy and heavily redacted. They include the words "Scope of Works". Below that there is a reference to "A/PLO Contract - Conflict of interest", and four numbered items: "Credit card" "Grant vehicle", "Travel approval & TA" and "Rec leave". That list reflects some of the subject matters listed in the Terms but is by no means complete. 723 In any event, by reference to the email exchange passing between Mr Brown and Mr Taziwa on 22 December 2022, it may be inferred that the purpose of the meeting was not to decide whether to engage Mr Taziwa, but to brainstorm the "scope of works" for his investigation. As I have mentioned, by that time Mr Taziwa had already been given a brief of "what was required" by Ms Evans. Neither Mr Brown, nor Mr Taziwa nor Ms Evans gave evidence to explain how and why that occurred. 724 The poor quality of the evidence is such that I am not satisfied that concerns about Ms Atkins' conduct were raised in the period following the Complaint by people who happened by sheer coincidence to come across information about Ms Atkins' conduct in the weeks immediately following the Complaint. The most that can be said of the evidence is that there appears to have been a desire on the part of some directors to find some basis to dismiss Ms Atkins and that that desire first arose immediately after the Complaint. It is beyond the realms of coincidence that the spontaneous raising of the "concerns" from November 2022 onward was unrelated to the Complaint. I reject NAAJA's submissions on that topic.

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Information withheld from BDO and the Board 725 I have already rejected Ms Rosas' evidence that she provided to those in attendance at the January Meeting printouts of the correspondence and supporting documents Ms Atkins had attempted to email to Mr Taziwa on 9 January 2023. I have found that did not occur and that the correspondence was not otherwise drawn to the Board's attention. 726 In addition, it is not disputed that Ms Rosas did not direct Mr Taziwa to read that correspondence or take it into account. Mr Taziwa was not called to explain what he meant by his concern that his investigation would be "tainted" if he read it. On the basis of Mr Taziwa's email of 11 January 2023 and all of the surrounding circumstances, I find that he had been expressly instructed not to approach Ms Atkins and to confine his "investigation" to material provided to him by NAAJA. The case presented by NAAJA gives no sensible and persuasive explanation for that direction. It is especially curious given that Mr Taziwa had been tasked to determine whether Ms Atkins had engaged in intentional wrongdoing. No director provided a persuasive explanation as to how he could be expected to do so without seeking a response from Ms Atkins and obtaining relevant records from her. The answers of Ms Moore and Ms Garlett in cross-examination on that topic were especially unimpressive. 727 Ms Rosas acknowledged she had read the correspondence Ms Atkins had attempted to email to Mr Taziwa. She was therefore aware of the existence and content of documents that were obviously relevant to two of the matters Mr Taziwa had been tasked to investigate: the signature allegation and the Vehicle Scheme. 728 In connection with the signature allegation, Ms Atkins had attempted to direct Mr Taziwa to the December 2017 Minutes in which the increase in her salary had been approved following a review by external consultants. Those are the minutes showing the passing of the resolution at a meeting at which Ms Rosas was present. That material was capable of seriously undermining Ms Rosas' earlier allegation that Ms Atkins had given herself an unauthorised pay rise. I have earlier observed that Ms Rosas attempted to escape confronting that issue by alleging that the Minutes had been tampered with. It has not been established that that was a genuine belief she held at the time that she read Ms Atkins' correspondence, nor that it was a reason for her failure to disclose the documents to anyone else. It is more likely that she well understood that the December 2017 Minutes undermined her claim that Ms Atkins had forged her signature for purposes that included giving herself an unauthorised pay rise. 729 As to the Vehicle Scheme, the materials included Mr Rossingh's memo and a reference to the Board meeting in 2015 at which his memo was tabled and considered. On its terms the memo confirmed not only that Ms Atkins had no involvement in the establishment of the Vehicle Scheme, but that she had acted in an exemplary way in assisting with its cessation. It showed that the Board itself had acted on the advice of an auditor in the establishment of the Vehicle Scheme. The associated minutes show that the Board was well aware that NAAJA had purchased the Range Rover vehicle under the Vehicle Scheme, that Ms Atkins had been directed to make payments to NAAJA not only for the purchase of that vehicle (in an amount exceeding $100,000) but also an amount equivalent to NAAJA's FBT liability occasioned by her participation in the Vehicle Scheme more generally, totalling $40,805.00. The very same minutes evidence Ms Rosas seconding a motion and supporting a resolution for the extension of Ms Atkins' contract for a further five years. Nothing in those materials suggests that Ms Atkins had purchased vehicles other than in accordance with the Vehicle Scheme. On any reasonable view of those materials it could not be said that NAAJA had been left out of pocket by Ms Atkins' participation in it. 730 I have already emphasised that unfairness in decision making does not of itself prove a contravention of s 340 of the FW Act. But the degree of unfairness attending the procedures culminating in the Termination Resolution is so extreme that (unless otherwise explained) it may be an indicator of an improper motive. 731 Ms Rosas' conduct of withholding that information from Mr Taziwa is not consistent with that of a person truly concerned to have Mr Taziwa provide the correct answer to the questions referred to him on the basis of all relevant material. The conduct is more consistent with that of a person intent on having Mr Taziwa prepare a report that could form the basis of a Board resolution to dismiss Ms Atkins for reasons that appeared to be distanced from the Complaint. It is yet another problematic part of NAAJA's case when considered in conjunction with the evidence of Ms Evans' unexplained involvement in critical events. 732 As to other directors, in making the Termination Resolution there was an obvious departure from ordinary standards of fairness, but the search for a coherent reason for that departure is illusive. An exception is Mr McLennan, who formed the view that the material was sufficient to be referred to NAAJA's lawyers for advice, but not sufficient to support a resolution to terminate Ms Atkins' employment. He did not join in the Termination Resolution for that reason. Contrary to NAAJA's submissions, it was not a unanimous vote. 733 Ms Rosas, Ms Moore, Ms Ellis and Ms Garlett aside, I find that most of the directors proceeded on the basis that Mr Taziwa was an "independent auditor" and that his findings could be accepted at face value because of that asserted status. They accepted his "findings" without rigorously analysing the materials or questioning the accuracy of his "findings" or the procedures he employed in making them. Their understanding of the issues was rudimentary but they at least understood Mr Taziwa to be reporting that Ms Atkins had engaged in serious wrongdoing, including wrongdoing amounting to criminal activity. I understood their evidence to mean that they believed that Mr Taziwa had in fact conducted an "audit" using the independent processes of to be expected of person with that status, and that they therefore assumed that his processes were rigorous and fair and that his findings were factually sound. 734 I am not satisfied that Ms Rosas proceeded on any such assumption. She was aware of information relevant to the "findings" referred to in Ms Atkins' correspondence but actively withheld that information. And she was aware that Mr Taziwa had been directed not to seek information or records from Ms Atkins. 735 Others bluntly asserted that Ms Atkins had been afforded the opportunity to be heard, ignoring the obvious fact that she had not been given that opportunity prior to the Termination Resolution being made. Ms Garlett was willing to make assertions of that kind but her evidence then dissembled, revealing a lack of personal knowledge or understanding of key events. Her attempts to suggest that Ms Atkins had in fact been heard reflected poorly on her as a witness. 736 Ms Ellis' responses in cross-examination were to the effect that Ms Atkins was not given an opportunity to respond because she had given NAAJA itself no opportunity to engage with her. Her views in that respect are far removed from the objective reality of the situation as it unfolded. There were no obstacles at all to NAAJA corresponding with Ms Atkins through her lawyer. It eventually sent the Allegations Letter and the Updated Allegations Letter by correspondence passing between lawyers, and there were no practical impediments at all to that occurring at an earlier time. Ms Ellis' evidence of her subjective explanation for the want of procedural fairness cannot be accepted as a true reflection of her actual state of mind. She sought to evade grappling with questions about why Ms Atkins had not been given an opportunity to respond to the allegation before the Termination Resolution was made by shifting the blame for that circumstance to Ms Atkins. Her testimony on that subject was unconvincing and I do not accept it. 737 Ms Moore did not explain why she joined in the Termination Resolution in circumstances where it was plain from her evidence that she knew Ms Atkins had not been given an opportunity at that time to respond. 738 NAAJA's written submissions described BDO's activities as an "independent documentary audit of aspects of the Applicant's role and responsibilities" and asserted that the "purpose of an external audit was to obtain an unbiased assessment of governance and reputational risks to NAAJA". That submission is not made good on the evidence. Nor is Ms Rosas' more colloquial assertion that the BDO Report was "legit". 739 Viewed as a whole, the evidence is more suggestive of a design to rid NAAJA of its CEO irrespective of whether misconduct had occurred and without regard to historical materials putting key events into their proper factual context. 740 It indicates that (at least) Ms Rosas acted without the knowledge of the rest of the Board to bring about the BDO Report with a view to securing a resolution for Ms Atkins' dismissal having the appearance but not the actuality of an independent process. NAAJA's task under s 361 included the need to dispel the concerns naturally arising on the evidence adduced by its own witnesses or on the basis of its own documents. Given the problematic nature of that evidence, it was necessary for it to show that the BDO Report was not the product of such a design, and it was necessary to prove that no person actuated by the Complaint materially participated in it. That has not been done.

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The allegations letters and the February Meeting 741 The evidence shows that only a few of NAAJA's directors knew that the Allegations Letter and Updated Allegations Letter were sent to Ms Atkins after the Termination Resolution. The sending of those letters was inconsistent with the resolution that the termination take effect immediately after the Attorneys-General were advised of the resolutions made at the January Meeting. That occurred on 16 January 2023. 742 NAAJA submitted that the Allegations Letter was sent following and in accordance with legal advice. That submission invites the Court to speculate about the content and context of legal advice. The legal advice was not put into evidence and I will not speculate about its content in a way that favours either party. In any event, to say that the Allegations Letter was sent in accordance with legal advice does not assist NAAJA to prove that it constituted a genuine attempt by the relevant decision-makers to afford Ms Atkins an opportunity to be heard or a genuine desire to in fact take into account anything she had to say in response. That is especially so in relation to Ms Rosas who had only a few days prior notified the Attorneys-General that Ms Atkins had in fact been dismissed. Ms Moore's evidence was that she wanted to send the Allegations Letter after receiving legal advice, but that is not the same as saying that she had a sudden epiphany that the Board should actually have regard to anything Ms Atkins had to say in response to the letter. 743 It may reasonably be inferred that those in attendance at the February Meeting were aware that Ms Atkins had threatened legal proceedings in her previous correspondence and that she had asserted a deadline for an answer to her correspondence from NAAJA. I find that is why the February Meeting occurred so swiftly after Ms Atkins' response to the allegations was received. 744 NAAJA submitted that the decision made at the February Meeting was one made by "Board Delegates". The evidentiary basis for that description is unclear. The many directors who did not attend the February Meeting were not aware of the Allegations Letter, the Updated Allegations Letter, Ms Atkins' response or the fact of the February Meeting at all. It is disingenuous to describe those who did attend as "delegates" of the Board. The submission is immediately followed by an invitation to accept for its truth Ms Ellis' statement (recorded in the notes of the February Meeting) that "the Board has decided". There is no evidence that the Board had made any decision based on the response Ms Atkins had provided. The better view is that those in attendance acted without the knowledge of the Board and that they consciously decided to keep the rest of the Board ignorant of Ms Atkins' position. 745 As to the notes of the February Meeting, I am not satisfied that they are a complete or reliable record of the events that occurred there, and nor do they purport to be. Their incompleteness is made evident by the fact that at least one attendee (Ms Moore) is not recorded as being in attendance when in fact she was. I addition, on Mr Espie's unchallenged evidence there was a discussion at that meeting about Ms Atkins' supervision abilities, a discussion on that topic is not recorded in the notes. 746 Each of the directors present took it upon themselves to determine that Ms Atkins' response should not be provided to the Board allegedly based on their own asserted views about the adequacy of the response together with their perceived need to act with some haste. 747 I do accept that there was a perceived need to move with haste. However, I am not satisfied that the need for haste had nothing to do with the fact that Ms Atkins had threatened to commence legal proceedings to restrain the NAAJA from terminating her employment, coupled with a related desire to not have the Board reconsider the Termination Resolution. 748 Those present at the February Meeting consciously decided not to refer Ms Atkins' response and her supporting documents to the Board for its consideration notwithstanding the suggestion of Mr Espie (then the Principal Legal Officer) that there be a further Board meeting. On the basis of their evidence that emerged in cross-examination, I formed the view that each of them had a careless attitude to the things Ms Atkins had said in her response. 749 That conclusion is reinforced by the distance between the subjective views asserted by the witnesses and the objective facts of what was contained in Ms Atkins' response. By way of example, as mentioned above, directors at the January Meeting were said to have acted on the BDO Report, which included a "finding" that there were 61 instances of Ms Atkins' incurring personal expenditure on her corporate credit card. Only three of those transactions were given expression in the Allegations Letter. There is no explanation in the evidence for the apparent abandonment of 58 of them. Two of the surviving transactions related to art supplies. Ms Atkins' response was that the expense related to art that remained on display in NAAJA's Palmerston and Darwin Offices. She said that she needed to access the computer that had been seized from her in order to respond to the last remaining allegation. 750 Furthermore, as I have already identified, the content of Mr Rossingh's memo objectively speaking was highly relevant, given the discussion that occurred at the January Meeting about Ms Atkins' involvement in the Vehicle Scheme. Other aspects of Ms Atkins response were obviously matters that, if considered by the Board, might cause it to question whether the termination of Ms Atkins was warranted. 751 The witnesses' asserted belief that Ms Atkins response was nothing but lies and deception is difficult to accept given the content of the allegations and the content of Ms Atkins' response. I find it implausible that the directors had genuinely formed the view that the response did not warrant consideration by the Board given the objective circumstances I have described. The more likely explanation for their decisions is that they did not want to the Board to consider the response because they appreciated the likelihood that the Board may reconsider the Termination Resolution. Their conduct is also consistent with a desire to notify Ms Atkins of her dismissal with the utmost haste. 752 In light of the evidence as a whole I do not accept the denials of Ms Rosas, Ms Ellis or Ms Moore that they were not motivated either by the Complaint or by the fact that Ms Atkins had threatened legal proceedings to prevent the termination of her employment. The better view is that they acted in haste because they understood the threatened legal proceeding to be imminent. 753 The evidence of the directors who attended the February Meeting lacked the nuance to be expected of directors who had truly engaged with the matters raised in Ms Atkins' response to the allegations or given any serious consideration to the question of whether the Board should be apprised of the information contained in it. That lack of engagement, together with the sense of urgency attending the decision give rise to real questions as to their motivations. In my view, the inference arises that none of those in attendance wanted the complication of a Board meeting at which the Termination Resolution might be reconsidered. Their conduct in relying on the earlier Termination Resolution knowing that the Board had not been apprised of Ms Atkins' position and not informing the Board is highly unusual behaviour, especially given the assurances made to Ms Atkins in the Allegations Letter itself. Absent a cogent explanation, the inference arises that the decision-makers at the February Meeting were motivated by a prohibited reason and not by the reasons given in their evidence. It is enough to say that NAAJA has not proved otherwise. 754 I am satisfied that the fact that this proceeding had been commenced and an unsealed copy of the originating application served on NAAJA's lawyers was not disclosed to the directors in attendance at the February Meeting until after they had communicated their decision that a letter be sent to Ms Atkins notifying her of the termination of her employment. Accordingly, those who made the decision were unaware that Ms Atkins had in fact lodged an application for an injunction in this Court at the time that their decision was made. However, little turns on that because NAAJA has not established that they were not aware of correspondence previously sent by Ms Atkins' lawyers making it plain that a proceeding would be commenced without notice unless undertakings not to terminate the employment were given. None of them denied knowledge of that earlier threat.

[72]

The role of Mr Kellock, Mr Brown and Mr Taziwa 755 Ms Atkins' closing submissions were to the effect that Mr Kellock's knowledge of the commencement of this proceeding can be attributed to NAAJA under ordinary principles of agency and that he may have been a "decision-maker" or "influenced the decision". Unlike the evidence disclosing the involvement of Ms Evans, I do not consider there to be any proper basis to suppose that Mr Kellock influenced the decision made at the February Meeting or any other adverse action. The invocation of agency principles in this context does not assist Ms Atkins. The focus of the Court is on whether the NAAJA decision-makers at the February Meeting were aware that this proceeding had been commenced. It is wrong to attribute Mr Kellock's knowledge of this proceeding to each of those decision-makers. 756 Ms Atkins also submitted that Mr Brown "may have been a decision maker or have influenced decision making in respect of the Review Action". There is evidence that Mr Brown may have been closely involved in the engagement of BDO, the preparation of the Terms and the provision of information to BDO. NAAJA's failure to call him has the ordinary forensic consequence that he did not provide the Court with any explanation to rebut inferences about Ms Evans' involvement, nor did he assist NAAJA to explain who decided on the content of the Terms. It is not necessary to label him as a "decision-maker" in order for those consequences to follow. 757 The same may be said of Mr Taziwa. He is an obvious witness who had knowledge of matters requiring an explanation, specifically in connection with his dealings with Ms Evans and the identity of persons who provided him with documents (or did not provide him with documents as the case may be). Like all litigants, NAAJA made choices about the presentation of its case. Its approach was to simply ignore the inferences that could be drawn from the documents that evidenced Ms Evans' involvement in the process culminating in (at least) the BDO Report, rather than positively grappling with their implications or adducing evidence to put a different complexion on them. Given her connection with the Complaint and her motivations as I have found them, that is highly unusual. The consequence of the choice not to call Ms Evans or Mr Taziwa is that the Court cannot be satisfied of NAAJA's pleaded case because there is a body of unexplained evidence that significantly detracts from it. It is not necessary to categorise either Ms Evans or Mr Taziwa as a "decision-maker" to reach that conclusion.

[73]

Alleged Board consideration of Ms Evans' response to the Complaint 758 NAAJA's case was that the Board resolved not to do anything further about the allegations made against Ms Evans in the Complaint after the considering her response and satisfying itself that the matters raised in it were "operational in nature". I accept that is the impression conveyed in Mr Brown's letter to Ms Evans of 30 January 2023. However, I do not consider that letter to be a reliable business record, at least for the purpose of proving the truth of the matters sated in it. 759 On the material before me, it has not been demonstrated that all directors considered Ms Evans response and formed a joint view about it, whether at a meeting or at all. Several directors said that they had not been made aware of Ms Evans' response at all. They include Mr McLennan, Mr Hill and Ms Assan. That is a further example of NAAJA witnesses and lawyers using the word "Board" too loosely in order to suggest that collective decisions had been made when the objective evidence does not demonstrate that any such thing occurred. 760 I am not satisfied that Ms Evans' response to the Complaint had been resolved at the level of the Board at any time before the January Meeting or the February Meeting. The evidence supports a finding that the Board had done nothing to address some of the allegations made in the Complaint. They include an allegation that Ms Evans made an offer on a property at Tenant Creek and an allegation that she had caused NAAJA to procure a large quantity of laptop computers but had refused to produce them or disclose their whereabouts to Ms Atkins when directed to do so. The adjective "operational" was used by nearly all of the NAAJA's directors in connection with the matters raised in the Complaint. To describe the matters as "operational" says nothing about gravity of the issues that had been raised. 761 NAAJA also submitted that at the time that the adverse actions were taken the fact and subject matter of the Complaint was of no ongoing significance to the Board. That broad submission is not supported by the evidence. Several directors said that the topic of the Complaint was raised at the January Meeting. In cross-examination, several directors acknowledged that they held adverse views about Ms Atkins relating to the Complaint which they held at the time of later adverse actions. The content and relevance of those views is discussed below.

[76]

Performance and the KPMG Report 767 NAAJA's written closing submissions began with an assertion that this proceeding "bears witness to a complex and bitter relationship breakdown between a long-standing chief executive officer and the governing Board of a publicly-funded employer", together with an assertion that the asserted relationship breakdown was not "actuated" by the Complaint. On the topic of Ms Atkins' performance, NAAJA placed heavy reliance on the KPMG Report to support submissions that the timing of the adverse actions relative to the Complaint was merely coincidental. Particular reliance was placed on its conclusion that "the CEO has resumed responsibility for the administrative operation of the Board, including meeting scheduling, meeting organisation, board paper coordination and distribution, logistics, agenda setting, and minute taking and distribution" and that "[t]his has resulted in significant friction and erosion of trust between the Board and the CEO, and the Board believing they do not have adequate oversight or control of the organisation or the CEO". 768 The quoted passages are to be considered in their proper context. The KPMG Report explains the Board's belief in terms of its own failure to understand its role and authority and a further failure to identify and articulate the CEO's role and responsibilities. It made no finding that the issue was in any way the fault of Ms Atkins or that the issue adversely reflected on her performance or competency. 769 It is to be recalled that the decision to engage KPMG was made in mid 2022, that its review was carried out in October and November 2022, that there was a preliminary presentation to the Board at the First November Meeting and that KPMG delivered its draft report to Ms Rosas on 5 December 2022. I accept those dates are contemporaneous with other critical events relating to the Complaint and the adverse actions. 770 However, I approach allegations concerning Ms Atkins' performance with considerable caution. Whilst performance issues are raised in NAAJA's evidence and submissions, NAAJA's pleading does not allege that performance issues formed any part of its reasons for taking the adverse actions: see [169] above. I will nonetheless explain why I do not accept NAAJA's submissions in relation to the significance of the KPMG Report in any event. 771 It is recalled that KPMG consulted only with those directors who self-nominated for interview. Only three directors self-nominated: Ms Rosas, Ms Ellis and Ms Moore. None of them disclosed precisely when they spoke to the consultants nor about what they said nor about any materials they provided in support. It is reasonable to infer that the "findings" in the KPMG Report upon which NAAJA places reliance were based on the self-reporting of one those three directors and not upon any wider enquiry. 772 There are testimonial assertions of some directors to the effect that they were not impressed with the way in which Ms Atkins performed some of her duties in the past particularly in connection with the running of Board meetings. However, assuming those expressions were genuine there is nothing at all to indicate that any such thoughts were outwardly expressed to Ms Atkins whether formally or informally or that they were ever the subject of any consideration or proposed action by the Board. The evidence of Ms Ellis is illustrative. In her affidavit she expressed frustration that Ms Atkins had not organised an independent scribe to take the minutes of Board meetings. However, in cross-examination she acknowledged that by the time of the First November Meeting that issue had been resolved and so was more in the nature of an historical grievance. She did not suggest that the issue relating to the scribe was anything other than a source of irritation. She also included in her affidavit an allegation that Ms Atkins "controlled the correspondence between NAAJA and regulatory bodies" without elaboration as to why she perceived that to be a negative thing and why the Board could not readily have assumed control of that correspondence if it was at all concerned about it. 773 Similarly, Ms Rosas complained that Ms Atkins controlled NAAJA's dealings with governing bodies such as ASIC, and yet other uncontested evidence showed that Ms Rosas as Chairperson had the password to access and amend NAAJA's records with ASIC, and that Ms Atkins did not. It is unclear why Ms Rosas thought it inappropriate that the CEO of NAAJA correspond with ASIC about its corporate affairs in any event. There is no evidence that those directors or the Board more generally had formed a desire to dismiss or even discipline Ms Atkins on the basis of those past complaints. 774 On the same topic, one of the first issues mentioned in the closing submissions is a "perception that [Ms Atkins] dictated the extent of the Board's role within, and its oversight of, the organisation and unduly controlled the Board's access to information". That perception was one asserted by Ms Rosas, but no other director gave evidence about it. Ms Rosas went so far as to suggest in a generalised way that the Board did not have access to information crucial to NAAJA's financial governance. I cannot accept those assertions as well-founded or genuine. There are no contemporaneous records in evidence giving expression to such concerns. Ms Rosas complained that Ms Atkins wrote the agenda for Board meetings, but did not explain why that was at all unusual, nor did she go so far as to say that the Board could not add any matter to the agenda that its directors saw fit to add, as demonstrated by Ms Rosas taking control of the agenda for the First November Meeting. The evidence as a whole reveals that directors were free to raise whatever matters they wished, including about Ms Atkins herself. In addition, the business records in evidence show that there were financial advisory and remuneration subcommittees, the membership of which was entirely under the Board's control, and there is no suggestion that NAAJA's financial accounts were put beyond the reach of those committees or out of reach of the Board more generally. 775 I have earlier observed that Ms Atkins' most recent performance review of October 2022 was not complete, however there is nothing to indicate that any issues concerning Ms Atkins' competency were raised at the performance review interview and nothing to suggest that any director brought to Ms Atkins' attention any concerns about her competency in the context of any earlier performance review. 776 In closing submissions NAAJA invited the Court to find that at the First November Meeting KPMG presented "findings" equivalent to those contained in a later draft report "including that the CEO's performance was not adequately reviewed or managed" and that from the time of that meeting the Board was "grappling with" those findings. That submission overstates the evidence as to what was known and what occurred at the First November Meeting. None of the directors who attended the meeting said that KPMG specifically reported anything about Ms Atkins' performance, nor that the attendees "grappled with" any particular finding in the KPMG Report at that time. The evidence is insufficient to support a finding that the KPMG Report itself was presented to the Board at that time. In her affidavit Ms Rosas said that she received a draft report from KMPG on 5 December 2022, after Ms Atkins had been suspended from her employment. 777 Viewed objectively, the KPMG Report reflects more poorly on the Board than it does on the CEO. The recommendations were that NAAJA review, define and document the CEO's key roles and responsibilities in line with the growth of NAAJA's operations, to communicate that role description to at least the senior management team, to formally define her key performance indicators to develop and implement a plan to transfer her "institutional knowledge and excess duties" to other personnel. KPMG concluded that Ms Atkins had a workload that could not be managed by a single person. It concluded that the Board had not adequately understood its institutional role and power to review and manage the CEO's performance. It recommended a period of "intensive capability uplift" followed by regular governance training. 778 In the circumstances I have described, I do not accept Ms Rosas' affidavit evidence that the KPMG Report was a reason for her taking any of the adverse actions against Ms Atkins. NAAJA's submissions sought to elevate the significance of the KPMG Report beyond anything expressed in the pleadings and in a way that did not fairly reflect the evidence given by its directors on the topic. 779 In addition, I do not place weight on the KPMG Report to the extent that it was relied upon as evidence of a prior consistent statement made by any particular witness, given the mystery as to who said what to KPMG, when they did so and why they did so.

[77]

Other issues relating to Ms Atkins' performance 780 A common theme emerging from the cross-examination of NAAJA's witnesses was their stated view that the Complaint reflected poorly on Ms Atkins' supervisory abilities, specifically her ability to resolve issues within her sphere of responsibilities before they got of hand. Some directors said that Ms Atkins ought to have invoked NAAJA's grievance policy. Others said that the manner in which she had articulated herself in the Complaint lacked professionalism. Others referred to her failure to provide supporting evidence. As I have mentioned, nearly all of the directors described the issues raised in the Complaint as "operational". They expressed the view that it did not form a part of the Board's role to deal with them. I am satisfied that several witnesses held those views not only at the time that the Complaint was made but that it was persisted with through to the time of the Termination Resolution and (for those who participated) through to the decision to send the Termination letter. I am satisfied that those views formed a part of their reasons for participating in those actions and reject the evidence of those who denied that was so. 781 Ms Atkins submitted that those revelations in the evidence were sufficient to support a finding that the adverse actions were taken "because" of the Complaint within the meaning of s 340 of the FW Act. It was enough, she submitted, that the directors were critical of her for making the Complaint and that their critical views were one of the operating factors in their minds at the time of the adverse actions. 782 Ms Atkins' submissions on that topic were not entirely correct as a matter of legal principle. It is not enough to demonstrate that the Complaint caused a director to form an adverse view about Ms Atkins. That is because an adverse view of an employer may be formed in a way that is connected in some way with the exercise of an employee's workplace right, but without a contravention of s 340 of the FW Act occurring: BHP Coal. It is necessary to closely discern the reasons why each director formed his or her critical view. In doing so, the directors may be considered in three classes (although some may fall within more than one). 783 In the first class are those directors who considered that matters raised in the Complaint (even if true) showed a failure on Ms Atkins' part to adequately manage those under her supervision so as to prevent the events she complained of occurring. An adverse view held on that basis could not be said to be one that was formed "because" Ms Atkins had exercised her workplace right by making the Complaint. As the High Court emphasised in BHP Coal it is not sufficient to show that there is a factual connection of any kind between the adverse action and the workplace right. To the extent that a director joined in an adverse action because he or she rightly or wrongly formed the view that Ms Atkins was an ineffective CEO by failing to prevent the events raised in the Complaint from occurring, that does not establish a contravention of s 340 of the FW Act. The correct analysis is that the Complaint happened to be the mode by which issues perceived to reflect poorly on Ms Atkins' performance happened to come to the directors' attention. 784 In the second class are those directors who formed a critical view of Ms Atkins because of the manner in which she had expressed herself in the Complaint. That includes views that Ms Atkins was unprofessional in her language, in her use of dot points, in her failure to set out a detailed factual foundation or in her failure to provide supporting documents in relation to the matters she had raised. To the extent that those adverse views formed a part of the reasons for taking the adverse actions, that does not establish a contravention of s 340 of the Act. In such cases, it may be said that the adverse action was taken not because of the particular exercise of the particular workplace right, but rather because in the course of exercising the right, an employee displayed characteristics that the decision-maker considered to reflect poorly on the person's competence. 785 In the third class are those directors who were annoyed by the fact of the Complaint because it raised matters that they believed should not have come to the Board's attention because they were not matters falling within the Board's sphere or responsibilities. I include in this class those directors who asserted that Ms Atkins ought to have invoked a "grievance" policy, those who said that the issues were "petty" and those who used the adjective "operational" without any meaningful elaboration as to what they meant by that word. Most of the directors fall within this class. 786 In relation to the "grievance" policy, there is no such document in evidence and the witnesses who referred to it (particularly Ms Ellis) did not explain how she could conceivably have formed any reasonable view that a "grievance" policy was the only available or appropriate procedure for the matters to be addressed. I am not prepared to draw any inference that the policy was either available or appropriate to deal with the serious subject matter the CEO had raised against its CFO. This was not a matter of one employee complaining that another had taken his or her yoghurt from the common fridge. As discussed elsewhere in these reasons, the Complaint raised serious issues of financial impropriety and disclosed Ms Atkins' unsuccessful attempts to resolve them directly with Ms Evans. I formed the view that Ms Ellis' evidence that the grievance policy should have been used to be just another way of saying that Ms Atkins should be criticised for bringing her concerns to the Board's attention and for asking the Board to advise what should be done. 787 The directors in this class formed critical views about Ms Atkins because of an objectively wrong belief that she should not draw the Board's attention to the issues about which she complained and should not ask for the Board's guidance about them. To the extent that the directors held that adverse view, it was a view founded in a sense of frustration that the Board was being put to a burdensome task that was not within its remit. In my view several directors can be identified as forming adverse views about Ms Atkins substantially for that reason, accepting that adverse views of the other kinds I have mentioned may also have been held by them. Speaking in the abstract, if the adverse views of an employer falling within this class factor into an impugned decision in a material way, the causal element of a contravention in s 340 of the FW Act would be satisfied: the adverse action could be said to have been taken "because" of the employee's exercise of the workplace right in the requisite sense. Given the manner in which the evidence transpired, NAAJA's onus in the present case included the necessity to show that the adverse views falling within this class did not form a substantial and operating factor of the reasons for taking the adverse actions against Ms Atkins. I am not satisfied that NAAJA's onus is discharged in that discrete respect.

Parties

Applicant/Plaintiff:

Atkins

Respondent/Defendant:

North Australian Aboriginal Justice Agency Ltd

Legislation Cited (5)

Corporation Act 2001(Cth)

Fair Work Act 2009(Cth)ss 340, 341, 342, 360, 361, 546, 793

Australian Charities and Not-for-profits Commission Act 2012(Cth)

Corporations Act 2001(Cth)ss 1247B, 1322, 1382

Evidence Act 1995(Cth)s 191

Cases Cited (46)

208 FCR 178 Lamont v University of Queensland (No 2) [2020] FCA 720 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 National Tertiary Education Union v Royal Melbourne Institute of Technology (2013) 234 IR 139 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Roberts v General Motors-Holden's Employees' Canteen Society Inc (1975) 25 FLR 415 RPS AAP Consulting Pty Ltd v Lamb [2023] FCA 1310 Short v Ambulance Victoria (2015) 249 IR 217 Squires v Flight Steward Association of Australia (1982) 2 IR 155 Street v Queensland Bar Association (1989) 168 CLR 461 Transport Workers' Union of Australia v Qantas Airways Ltd (2021) 308 IR 244 Weinstock v Beck (2013) 251 CLR 396 Wong v National Australia Bank Limited (2022) 318 IR 148 Wong v National Australia Bank Limited [2021] FCA 671 Wood v City of Melbourne Corporation (1979) 26 ALR 430

(2021) 288 FCR 301

(2019) 273 FCR 332

(1946) 72 CLR 435

(2012) 248 CLR 500

(1995) 185 CLR 410

(2020) 279 FCR 83

(2001) 107 FCR 93

(2014) 253 CLR 243

(2015) 253 IR 166

(2001) 129 IR 251

(2023) 325 IPR 190

(1959) 101 CLR 298