193 I have carefully considered the evidence and submissions of the parties in this matter. That consideration has included a lengthy and detailed analysis and comparison of Mr. Simmons 3 annual DCDPs (2001/2002, 2002/2003 and 2003/2004), the 3 supplementary DCDPs (29/11/04, 22/12/04 and 2/2/05) and the ASIC search conducted on Mr. Simmons of 8 December 2004. I have also carefully considered the various documents attached to the memos issued by Mr. Logue to Mr. Simmons in relation to the completion of the DCDP's.
194 As Mr. Newell rightly points out the onus is on the respondent Council to establish that misconduct has taken place per Pastrycooks, Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70. The Commission must then be satisfied that that onus has been discharged and that the misconduct occurred.
195 However, even if it is established that misconduct did occur, the Commission must also consider whether termination in the circumstances was too harsh a penalty per Byrne & Frew v Australian Airlines (1995) 61 IR 32. Likewise, whether the termination was either harsh or unjust or unreasonable per S.88 of the Act. Here however, the onus moves back to the applicant per Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273.
196 Mr. Newell maintained that as a result of cross-examination of Mr. Watson, it was clear that he had relied only on the supplementary declaration of 22 December and the conduct of Mr. Simmons at the 15 December Council meeting as grounds for Mr. Simmons' summary dismissal for serious misconduct.
197 Mr. Newell also maintained that procedural unfairness arose when, inter alia. Mr. Simmons was not told by Mr. Watson that such summary dismissal was the alternative to resignation and refused to meet with his Solicitors.
198 In contrast, Mr. McConnell submitted that the decision to dismiss had to be viewed in the context of the previous four declarations, his disregard of instructions and the overall circumstances confronting Mr. Watson concerning Mr. Simmons' declarations and his various disclosures.
199 I have to say I agree with Mr. McConnell. What must not be forgotten is Mr. Simmons' explanatory covering letter attached to the supplementary declaration of 22 December. That was an opportunity for him to make a submission as to why Mr. Watson should not terminate his services on the grounds set out in the memo to him of 13 December.
200 That memo made clear that Mr. Watson was "proposing" to terminate, not merely "considering" termination. It was made quite clear that that action was a result of firstly, Mr. Simmons' undertaking at the 9 December meeting that his supplementary declaration of 29 November was accurate; secondly, his response in the meeting (acknowledged even on his version of the minutes) that he had not been associated with any other companies not disclosed on that return and thirdly, a closer examination by Mr. Watson of the earlier 2001/02, 2002/03 and 2003/04 DCDPs and the ASIC search.
201 As the subsequent declaration of 22 December showed and also that of 2 February, that undertaking and response were just not true. At best Mr. Simmons was mistaken and overlooked matters, at worst, he deliberately lied, mislead the General Manager and sought to again withhold information on interests (both pecuniary and discretionary) that should have been declared as early as his first return in 2001/02.
202 It is not entirely clear to me on the evidence whether the ASIC report Mr. Logue obtained dated 8 December was actually in Mr. Watson's possession at the time of the meeting. Certainly, some of the information contained in it about companies not previously revealed was raised with Mr. Simmons.
203 However, perhaps the mere fact that he was asked whether he had any involvement in any other companies not yet declared indicates that Mr. Watson was well aware of that information and was in fact giving Mr. Simmons the opportunity of "coming clean" as it were and volunteering information not previously forthcoming.
204 Mr. Simmons was asked what his business interests were in the City to which he replied "nothing" (on both versions) apart from two drafts supported by Mr. Casey. Certainly this appears to have been correct as at 9 December 2004 (Although the ASIC search still seems to show him as a shareholder of Platanous and Christina's Property Group). Although the reference to the DA's supported by Mr. Casey (who left in April 2003) would raise issues of previous involvement in business interests in the City. This was his opportunity to fully disclose the involvements as set out in the ASIC search.
205 However, based on the information Mr. Watson had, and given how unforthcoming Mr. Simmons was, it was not surprising that following Mr. Watson's further examination of Mr. Simmons' previous DCDP's and the ASIC search, Mr. Watson had serious concerns which result in his memo of 13 December.
206 Following the 13 December memo and the entering on the scene of Mr. Robertson, the ASIC report was provided to Mr. Simmons, via Mr. Robertson. Mr. Simmons was then in a position to properly respond as requested.
207 That the situation, as a result of 9 December meeting, was now quite serious for Mr. Simmons and clearly realised by him is underlined by the fact that he now sought the assistance of the relevant Union.
208 Mr. McConnell is quite right that any information put forward by Mr. Simmons is done so only after he has been pushed to provide it by Council and then only with what information he considers necessary to respond to the specific request. In each of the 3 declarations of 29 November, 22 December and 2 February more information was revealed each time. Yet, as will be discussed below even the final declaration of 2 February was still, in my very firm view, severely wanting in necessary detail not previously provided namely, income received.
209 In the first return lodged by Mr. Simmons on 6 August 2002, Mr. Simmons was required, as it was a first return, to declare interests as at that date of completing the return. That is quite clear from the wording of the return and the accompanying material attached to Mr. Logue's memo of 15 July 2002.
210 At that time, according to the ASIC search, he was involved in three specific companies and had been so since 1996, 1998 and 1999 respectively, as a Director of the three companies and a shareholder as well in one company. He did not declare those involvements as either pecuniary or discretionary interests.
211 Mr. Simmons relied on the fact that Mr. Logue only raised with him that he was in error in completing the return with "N/A" in each section rather than "NIL". He also received a subsequent written confirmation that his return was in order.
212 This was then the basis, he said, for completing each subsequent return in 2002/03 and 2003/04 including, he said, completing them as at the date of completion rather than for the 12 month period from June to July each year.
213 This was done despite the explicit memos of Mr. Logue for each year (15/07/02, 26/08/03 and 10/09/04) indicating that the return was for the "period ending 30 June 2002 etc" and listing the specific relevant material that was actually attached to the memo to assist in completing the return. It was done despite the memo specifically drawing Mr. Simmons attention (in bold) to Circular No. 99/31 and stating "It outlines the care and attention needed in completing the return". It was done despite the memo stating that "should you require any assistance at all in the completion of the form, do not hesitate to contact myself or the General Manager".
214 Yet what is it that Mr. Simmons did on receiving the memos? In cross-examination he mainly said he did not read the attachments to the memo. In some instances he said he could not recall reading the attachments. He acknowledged that he did not ask the assistance of either Mr. Logue or the relevant General Managers at the time (Mr. Casey and Mr. Watson).
215 He indicated that in late 2003 he raised with Mr. Logue some privacy concerns about the information in the DCDP's given that they were available for public scrutiny. However, there is no suggestion anywhere that as a consequence of that enquiry Mr. Logue told him he didn't have to provide any requisite information or make any declarations of pecuniary or discretionary interests.
216 Having carefully considered all of the documentation attached to Mr. Logue's memo (as provided to Mr. Simmons), true it is that there could conceivably be a "grey area", based on the documentation, for any individual required to complete a DCDP as to whether a matter is either a discretionary disclosure or infact requires a declaration of a pecuniary interest and indeed a "grey area" as to when a matter moves from being discretionary interest to a pecuniary interest. However, if there was any doubt remaining in Mr. Simmons mind after he had read the information (indeed, there may not have been, if he had bothered to read it in the first place) then all he had to do was seek the assistance of Mr. Logue or the General Manager. He did neither.
217 Instead he blamed the fact that he filled out the declarations "inaccurately" on Mr. Logue for not telling him they were not correct.
218 Indeed, in both his affidavit (Exhibit 1) and his letter of 22 December 2004 accompanying the supplementary DCDP he goes so far as to say firstly in relation to the return date relied on:
" However, as I have made declarations previously as "at the return date" and have received written acknowledgement from John Logue, the Director Governance on every occasion, stating that my declaration was in order, how was I to know any different?"
219 Well, Mr. Logue was not a mind reader, I'm sure. The form provided to Mr. Simmons in each year had the specific annual period already typed in e.g. "1 July 2002 to 30 June 2003". The date filled in the section "As at the Return Date" was filled in by Mr. Simmons. It clearly indicates on the form that one deletes whichever is not applicable.
220 The return date, rather than the whole annual period, was only applicable for Mr. Simmons' DCDP of 2001/02. However as previously indicated he did not in any event list interests in three companies he had been involved in for some time and was still involved in at the return date.
221 If no information is supplied, I can't see that there was anything for Mr. Logue to correct in that respect. That brings up the next question of how was Mr. Logue to possibly know that Mr. Simmons had not declared interests that he had, unless he was privy somehow to that knowledge or to some third hand information. There is no suggestion or evidence anywhere that he was privy to such knowledge or information and therefore was in a position to know that the declarations were incorrect and inaccurate.
222 As to the failure to supply required information in the 2003/04 DCDP's, again Mr. Simmons blames Mr. Logue as indicated in the 22 December letter where he explains that he didn't supply that information because he again filled out the form as at the return date rather than for period and "I also didn't make discretionary disclosures because John Logue said his return had been examined and been found to be in order". Again how on earth was Mr. Logue to know that Mr. Simmons was not providing information he should have been when all he was putting was "NIL"?.
223 Later in that letter he says that in relation to the reporting requirements under S. 449 of the Local Government Act he was " under the wrong impression" as to how the form could be filled out " a mistaken impression reinforced by John Logue". And again "as stated earlier, I was receiving written confirmation from someone within Council, who I believed and trusted knew more about declarations than myself and that my declaration was in fact in order".
224 Obviously it was all John Logue's fault! What an absolutely pathetic and weak excuse. I don't think I've ever heard a flimsier excuse, for either totally negligent and slack behaviour or downright deceit, in years.
225 I believe Mr. Simmons knew full well what a pecuniary interest was and what a conflict of interest was and when such arose and deliberately chose not to declare them.
226 This knowledge is clearly evidenced by his own letter to Mr. Casey on 1 April 2003 when he said "I wish to declare a pecuniary interest in accordance with Section 454 of the Local Government Act which I might have in relation to dealing with any development applications relating to one or more properties that I intend to acquire either myself or jointly with family and friends in the boundaries of Rockdale City Council with the express purpose of developing it". He went on to indicate the type of development proposed. He then notified of his intention to engage in property development in accordance with S. 353 of the Local Government Act noting that Mr. Casey had commented that it would not conflict with his Council duties as Council is not involved in the business of developing and selling residential units.
227 I must confess I am surprised at this evidence as to what Mr. Casey is alleged to have said and done in his meeting with him (looking at the Local Government Act, then saying he didn't need to look at it as Council was not in the business of developing). Mr. Simmons was making a request under S. 353 which related to seeking approval to undertake other work - essentially taking on a second job. However whilst undertaking a second job may have been alright (keeping in mind that Mr. Simmons was at that stage thinking of leaving Council in 12 months and wanted to see if he could make a go at developing) I can't imagine that Mr. Casey could possibly have meant that it was OK not to disclose any such interest or involvement in a DCDP.
228 Indeed, I'm extremely surprised Mr. Casey would have expressed the view that such involvement was alright. I consider that it wasn't an appropriate involvement - as was the view of Mr. Watson. Council is clearly in the business of approving and oversighting developments. For Mr. Simmons to be involved in such activity within the Council area given his senior role in the planning section was totally inappropriate.
229 Mr. Watson's concern was spelt out in his email of 13 June - " The operative issue is not whether the proposed work is the business of Council as you state but rather whether the average person would see that the proposal is in conflict with your Council duties of assessing and approving Development Applications. It clearly is (emphasis added).
230 Mr. Simmons was also aware of what could constitute a conflict of interest as he had advised Mr. Shankar on no less than four occasions (according to Exhibit 1) that he couldn't be involved in the DA's for certain properties for a variety of reasons mainly to do with his associations with those parties who were submitting the DA's.
231 However nothing of this was ever declared in any DCDP until it was specifically raised with him (as in Mr. Mezgallis' query of late November 2004) or specifically requested by Mr. Watson.
232 At the time of his letter to Mr. Casey in April 2003 he was already involved in a further four companies in addition to those he had not declared in 2001/02. What isn't known from the evidence is the actual date that any of the properties listed in various DCDP's as being owned by the companies he was involved in, were actually acquired.
233 Mr. Simmons made much of the fact that when he received the email of 13 June 2003 from Mr. Watson, he immediately took steps to divest himself of his various interests. That was at some cost for himself not only in any charges involved etc but what income was forgone. As he said he expected to make money out of his involvement in those companies. (This was in a direct answer to questions from the Commission).
234 Mr. Simmons says that he was so "shocked" at Mr. Watson's' response in the 13 June email prohibiting him doing other work that he didn't bother reading the rest of the email. In particular he didn't read the section - " In the case where your family home or the like is concerned or where any friends are developing in the city you must report these circumstances to me immediately so that mechanisms can be put into place to ensure no perceived or real conflict of interest exists" (emphasis added). I find that just too ridiculous and unbelievable for words.
235 Mr. Simmons made no such report to Mr. Watson and as previously indicated his 2002/03 DCDP did not provide any information whatsoever about any of the companies he had been involved in prior to divesting himself of those interests. Nor did he reveal any of the conflicts involving property of friends, associates etc. after this time, that clearly existed as per his evidence (Exhibit 1).
236 Mr. Watson got no response to that email. He sent a second email and got no response. He said that when he saw the 2002/03 DCDP with nothing disclosed he assumed Mr. Simmons had complied with the email as his letter had said only that he was "proposing" to undertake this involvement. Mr. Watson said that had he been aware of any activity then he would have made appropriate enquiries and taken action. It was not unreasonable for Mr. Watson's part to take no further follow up actions on that basis. He was in fact not alerted to anything untoward until Mr. Mezgallis spoke to him in November/ December 2003 about a particular property and Mr. Simmons' interest in it. This led to Mr. Watson directing Mr. Logue to have Mr. Simmons complete a further DCDP (that of 29 November). Mr. Simmons' evidence suggested that he initiated the DCDP. I just don't believe him. Mr. Watson initiated that action via Mr. Logue and it was the information that it then revealed that led to Mr. Watson making the further enquiries he did and then to the meeting of 9 December.
237 Issues were also raised with Mr. Watson about Mr. Simmons' relationship with Mr. Pappas of Techton Pty Ltd that Mr. Watson had not been aware of previously.
238 Neither Mr. Logue nor Mr. Watson could possibly have known that the DCDP's Mr. Simmons was providing up until December 2004 were inaccurate. As Mr. Logue said he accepted the information provided at face value. Neither men had cause to question Mr. Simmons. How could they when he was just putting "NIL", "NIL", "NIL" throughout the returns? He provided no information that would have produced a query or follow-up from Mr. Watson.
239 The supplementary return of 22 December provided much more information than previously disclosed, information as per the ASIC search. However there was still no mention of one company Sydneyside Property Group Pty Ltd that Mr. Simmons had listed as owning 17 Fontainbleau Street, Sans Souci under the discretionary disclosures. He did not indicate that he had in fact been involved in that company - albeit for a short period from late 2002 to early 2003. Whilst that was before the reporting period 2003/04 he stated at the bottom of the disclosure " To the best of my knowledge no company that I have been associated with, other than for those listed above have bought or sold any property or conducted business in the Rockdale Local Government Area". Whilst it may seem to be a very minor issue he had still not declared his previous interest in Sydneyside Property Group. Sydneyside Property Group is however, mentioned in paragraph 2 of his explanatory letter but for some reason not listed in the DCDP.
240 However, what this further DCDP does not declare is any income which may have been received by Mr. Simmons, as a consequence of his involvement with any of the companies listed, companies which, in some instances, owned property with the City.
241 Mr. McConnell directed the Commission's attention to the email exchanges between Mr. Watson and Mr. Simmons from 29-31 December.
242 Following receipt of the 22 December supplementary DCDP Mr. Watson sent an email to Mr. Simmons (29 December) indicating that he needed to provide certain information "before I make a determination on the issues". That information was confirmation that Mr. Simmons had received Mr. Logue's 10 September memo and attachments about the 2003/04 DCDP. Confirmation that his disclosures for the period as set out in the 22 December return was "final and accurate"... and "supersedes all others submitted". Completion of a supplementary return for 3 July to 3 December 2004 and confirmation that he was aware of and understood his responsibilities under Councils' Code of Conduct.
243 Mr. Watson also sought the following in paragraph 4 "Can you please supply me with copies of all notifications of conflicts of interests/non pecuniary interests which you have given to anyone in the Council for any matter which might impact on your Council duties since you commenced employment with the Council".
244 Mr. Simmons replied (31.12.04) asking for copies of both Mr. Logue's memo and attachments and also Council's Code of Conduct. He sought an extension of time to reply until his return from leave on 31 January 2005.
245 Mr. Watson further responded (31.12.04) saying he had simply sought confirmation of the matters he raised, that the Code of Conduct was on the Intranet and as to Mr. Logue's memo and the attachments he must have had those as they were attached to his 2003/2004 DCDP form.
246 However, Mr. Simmons' further replied to this email (31.12.04) and requested the information he sought so that he could provide the information Mr. Watson required.
247 I must say I am surprised that Mr. Simmons left it until this late stage to go checking the Code of Conduct and the attachments to Mr. Logue's memo and that he needed those to respond to Mr. Watson's request.
248 Mr. Simmons' further letter of 2 February essentially said he couldn't confirm whether he had received the original memo sent by Mr. Logue on 10 September as that hadn't been provided to him by Mr. Watson (presumably so he could check they were the same). His declaration of 22 December was final and superseded all others and he couldn't provide any copies of notifications of conflicts of interests he had made as they had all been verbal. Mr. Watson was invited to contact those named in the Mr. Simmons' letters to verify this.
249 Lastly, he indicated that he was "aware" Council had a Code of Conduct and that "as a result of these proceedings he had recently obtained a copy, however, he had not had an opportunity to read it cover to cover", but he had read certain sections relevant to his position.
250 Frankly, I am concerned that after 13 years with Council he maintained that he had not considered (or been requested to consider) the Code more fully at a much earlier stage.
251 This is a matter Council should take up to insure all employees, including those at a senior level, are fully aware of the Code of Conduct. That is not to say that that has not already occurred and Mr. Simmons is simply trying to suggest his ignorance of the Code (and by implication a failure on the part of the Council to make sure he was aware of the Code) is the reason for his failure to complete the DCDP's as required. He had a clear obligation, particularly given his senior and supervisory position to take steps to make himself familiar with the Code and comply with its provisions.
252 Despite the thundercloud and doubts Mr. Newell sought to cast over Mr. Tyrpenou's notes of the meeting of 2 February, due primarily to the listing of the allegedly fictional company "Idobe", overall, after careful consideration of both versions I have come to the conclusion that Mr. Tyrpenou's notes accurately reflect the main thrust of the meeting. They merely summarise the main issues raised and discussed in brief. They are clearly not a word for word verbatim account of everything that was said between the parties.
253 Having been involved for many, many years with note/minute taking in a variety of forums/organisations it is my experience that they are rarely a verbatim record of everything said precisely the way it was said. This only happens if one is tape recording proceedings and then exactly typing up a transcript or one has a person taking the minutes in shorthand.
254 Whilst Mr. Simmons' notes are more detailed in terms of his recording of what he maintains was actually said, the same issues as noted by Mr. Tyrpenou notes, were clearly traversed. The difference between the two versions is one of form not substance, in my view.
255 There is no doubt that the clear issue that emerged from the meeting, after going through the ASIC list (and I will comment more on this shortly), was the issue of non-declaration of income received by Mr. Simmons as a consequence of his involvement with various companies.
256 Certainly, there was not income from every company. However, Mr. Simmons clearly said in his letter to Mr. Casey in April 2003, and confirmed in his evidence, that this essentially was to be a money making venture in which he expected to make a profit and profit sufficient to enable him to leave Council and rely on that income for his livelihood. There were also three companies that he had been involved with since 1996 - 1998.
257 That he made losses was beside the point. That the income he received was not profit but a return of his outgoings (although there was mention of money going to loan repayments) was also beside the point. Part B of the DCDP in Section 3 lists 2 parts " Sources of other income I reasonably expect to receive in the period commencing on the first day after the return back and ending the following 30 June" and "Sources of other income I received at any time during the return period". Whichever was not applicable was to be deleted. There was also a notation that " Include description sufficient to identify the person from whom or the circumstances in which that income was received".
258 From the 2002/03 DCDP Mr. Simmons had listed property owned in Marrickville at Part A. Real Property and "rent" from that property in Part B. He clearly understood the form sufficiently to do that.
259 If he had bothered to read the relevant attachments to Mr. Logue's memo he would have received assistance in completing his return properly. Such as the fact that income less than $500 not needing to be declared. There is also a section "Suggestions for Avoidance of Common Problems in the Completion of Returns" which deals with this, and the issue of disclosures broadly, in more detail.
260 This issue of income not declared was clearly the principal issue of concern for Mr. Watson on 2 February. Indeed, it was also an issue of concern for Mr. Robertson, Mr. Simmons' representative, who as Mr. Watson said (and I have no doubt that that is what happened), effectively took over the meeting and went through the ASIC list.
261 In relation to the ASIC list and Mr. Tyrpenou's notes if one sets out the 10 companies in the notes side by side with the ASIC list they clearly line up in the exact same order. There are, however clear, typographical errors in the Tyrpenou notes as follows:
Tyrpenou's Notes ASIC List
1. Idobe - Kababy Pty Ltd
3. Australian Property Group - Australian Property Group (Norfolk) Pty Ltd
5. Glamour Property Group - Glama Investments Pty Ltd
6. Khabiby Property Group - Kababy Pty Ltd
7. Plantanous Property Group - Platanos Investments Pty Ltd
8. Sydney Side Property Group - Sydneyside Property Group Pty Ltd
9. Australian Property Group Norfolk - Australian Property Group Pty Ltd
Christina's Property Group (No.2) and Coral Property Group (No.10) were correctly listed in the Tyrpenou notes
262 It is obvious to me that "Idobe" should have been Kababy and 3 & 9 have been mixed up.
263 Of course, it does show total sloppiness on both Mr. Tyrpenou's part and Mr. Watson's part in not checking the notes initially and also not identifying the errors when the Affidavit was prepared. Mr. Watson made concessions under cross-examination that I don't believe would have been made if more care had been applied to the preparation of Council's case in relation to these notes.
264 However, it remains that on my careful examination, which included an exercise in setting all companies out side by side on paper in the order of the ASIC search (and some companies are listed more than once due to different positions held by Mr. Simmons in the same company), I am satisfied the notes reflect that all the companies in the ASIC search were examined (there were no non-existent companies referred to) and Mr. Simmons had the opportunity of indicating the position in relation to each one.
265 The other issues raised during the meeting (in both versions) was Mr. Simmons' association with Mr. Pappas of Techton P/L, the Architect for the family home DA as well as Mr. Simmons' attendance and participation in the 15 December Council meeting.
266 In relation to his association with Mr. Pappas, even on Mr. Simmons' version, Mr. Pappas or Techton had been involved with submitting DA's for approval that were assessed by Assessment Officers under his supervision and control and who had approved applications. Such applications were being processed at the same time his fathers' application was being dealt with by Council. He stressed he had not involved himself in assessing any of the applications. However quite rightly the concern expressed by Mr. Watson was that this association and the conflicts of interest arising were not declared either to Mr. Simmons' Manager, Mr. Raft or to Mr. Watson.
267 It is apparent from the evidence that Mr. Pappas was also involved in three of the DA's made in relation to the properties mentioned in the DCDP's of 29 November as being owned by 2 companies Mr. Simmons was formerly involved with. This is also the case in relation to at least one of the three additional properties referred to in his Affidavit as being discussed with Mr. Shankar and not assessed by him, but not disclosed in any DCDP as a discretionary interest.
268 What Mr. Simmons also didn't declare (in either the DCDP or explanatory letter of 22 December) was that Mr. Pappas was also the architect for the DA for the family home. Mr. Pappas also appeared with Mr. Simmons and Mr. Smits at the 15 December Council meeting.
269 In relation to the Council meeting, I accept Mr. Newell's submission that it cannot be said that Mr. Simmons "argued" with Councillors about the DA. It does not appear to have been his intention to speak, only to demonstrate the model. He answered two technical questions only, I accept that. I also accept that no-one told him he shouldn't speak after he specifically asked if it was alright to do so.
270 However, that is not the issue in my view. The issue is that he didn't declare in a public forum and formally to Council, that the matter involved went beyond the fact that it was his father's house, he lived there and he was a Council Assessment Officer. He, in fact, held his Father's Power of Attorney. That changed the nature of his appearance and his interest before the body which had the power to approve or reject the DA.
271 I note Mr. George Raft, his Manager, left the chambers because of a potential conflict of interest as Mr. Simmons was a member of his staff. If Mr. Simmons had not been representing his father he would have had to leave also. Whilst he may have been in the position of having to be there as he said, (and I do not know whether that is in fact the case) again, I stress the issue is the non-declaration of precisely what his interest was and his role at Council.
272 I agree Mr. Watson did not raise the matter directly with Mr. Simmons subsequently, however, he clearly raised it with Mr. Robertson in the letter to DEPA of 15 December via the handwritten notation on the bottom of the letter. Mr. Robertson was now representing Mr. Simmons and communicating with Council on his behalf.
273 I have no doubt whatsoever, that Mr. Robertson would have passed on those comments to Mr. Simmons. I accept however, that there is no evidence of that. That the matter was not taken further at that time seems to me to be because Mr. Watson had undertaken to give Mr. Simmons an extension of time in which to respond to his memo of 13 December. However, I also accept that there was no formal advice that this was a problem nor a formal request from Mr. Watson for him to address that issue in the 22 December reply and DCDP. To that extent he wasn't put on notice that that was now an issue to be given consideration by Mr. Watson in determining whether he would proceed to terminate him. He should formally have been put on such notice and the reasons it was an issue clearly spelt out.
274 The meeting of 2 February was effectively called to a halt by Mr. Robertson seeking to speak privately with Mr. Simmons and Council once the issues of income not declared, the association with Mr. Pappas and the events of the Council meeting were raised.
275 I accept Mr. Watson's evidence (rather than Mr. Simmons) that it was in fact Mr. Robertson who requested this course of action. Unfortunately, Mr. Simmons was not very forthcoming at all about what Mr Robertson said to him or how Mr. Robertson came to cease to represent him. Unfortunately no questions from anyone were directed to Mr. Simmons on these two issues.
276 On the issue of the proposed resignation and any alternative action likely or proposed by Council, I make this observation. Mr. Robertson is the Secretary of DEPA. It is a small Union. Mr. Robertson appears on a regular basis (and has done for many years) before the various members of the Commission (including as currently constituted) and Full Benches. He also participates in the Local Government industry generally in negotiations concerning his members and their interests. This is well-known. In my experience Mr. Robertson is a very blunt and forthright advocate on behalf of his members. He is not backward in coming forward by any means. I have had occasion to have what could only be termed as "vigorous" and frank exchanges with Mr. Robertson. It is against this background of experience that I simply cannot conceive of there existing a situation where Mr. Robertson would not have spelt out to Mr. Simmons precisely what the options were that faced him. He hardly turned to him and simply said "Oh I think I'll suggest to Council that you resign!" He would have been well aware of the very serious situation confronting Mr. Simmons and was proposing what he considered was the best that could be retrieved from that, in my view.
277 I accept that there is no specific evidence as to this. However I consider that I can draw inferences as to what happened from the situation as described from what evidence there is and I do so.
278 Mr. Newell raises a Jones v Dunkell point against Council for not calling Mr. Robertson to confirm the notes of the meeting on the basis that it wouldn't have assisted their case.
279 The same Jones v Dunkell issue could be raised against Mr. Simmons for not calling the person who formerly represented him and in not revealing in evidence the full details of what occurred between them on the basis that it wouldn't have assisted his case.