Eldridge v Wagga Wagga City Council - [2021] NSWSC 312 - NSWSC 2021 case summary — Zoe

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Eldridge v Wagga Wagga City Council

[2021] NSWSC 312

Supreme Court of NSW|2021-03-12|Before: Bell P

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-03-12

Before

Bell P

Catchwords

[2016] NSWCA 30 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
[1933] HCA 8 Briginshaw v Briginshaw (1938) 60 CLR 336
[1957] HCA 85 Concut Pty Ltd v Worrell (2000) 176 ALR 693
[2000] HCA 64 Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524

Source

Original judgment source is linked above.

Catchwords

[2016] NSWCA 30 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66[1933] HCA 8 Briginshaw v Briginshaw (1938) 60 CLR 336[1957] HCA 85 Concut Pty Ltd v Worrell (2000) 176 ALR 693[2000] HCA 64 Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524[2016] NSWCA 37 Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 Jones v Dunkel (1959) 101 CLR 298[1959] HCA 8 LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992 Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121[1932] HCA 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449[2012] HCA 33 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117[2001] VSC 150 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

Judgment (43 paragraphs)

[1]

Introduction These proceedings were brought by Mr Alan Eldridge (Mr Eldridge) against Wagga Wagga City Council (the Council) following the termination of his employment as the Council's General Manager on 29 May 2017 without notice and with immediate effect.

The Council as at early 2017 served more than 63,000 residents across an area of 4825 square kilometres and had an annual budget of $110 million. The Council employed more than 600 staff.
The members of the Council as at the date of Mr Eldridge's termination were: Mayor Greg Conkey OAM (Mayor Conkey); Deputy Mayor Dallas Tout; Ms Yvonne Braid; Mr Paul Funnell; Mr Daniel Hayes; Ms Vanessa Keenan; Mr Rodney Kendall; Mr Timothy Koschel; and Mr Kerry Pascoe. All except Ms Braid, Mr Pascoe and Mr Funnell gave evidence in the course of the hearing in support of the Council. A number of current and former Council Officers also gave evidence including Mr Scott Gray, Ms Ingrid Hensley, Ms Caroline Angel and Mr Laurence Flack.
A small number of witnesses not relevantly associated with the Council were also called. Their evidence related principally to Mr Eldridge's involvement with a project undertaken by Katungul Aboriginal Corporation Regional Health and Community Services (KAC) for the construction of a medical centre in Batemans Bay (the Katungul project). This involvement pre-dated his appointment but continued whilst he was still employed as General Manager of the Council.
Mr Eldridge had acted as interim General Manager of the Council from 7 October 2015 until he was formally appointed as General Manager on 22 April 2016. The terms of Mr Eldridge's employment as General Manager were governed by a "Standard Contract of Employment" dated 22 April 2016 (the Standard Contract), cl 8 and schedule C of which provided for a total annual remuneration of $395,808.00. By cl 2 of the Standard Contract, the Council was to employ Mr Eldridge for a term of four years, terminating on 21 April 2020.
Clause 10.4.1 of the Standard Contract, pursuant to which Mr Eldridge was terminated, provided that: "Council may terminate this contract at any time and without notice if the employee commits any act that would entitle an employer to summarily dismiss the employee. Such acts include but are not limited to: (a) serious or persistent breach of any of the terms of this contract, (b) serious and wilful disobedience of any reasonable and lawful instruction or direction given by Council, (c) serious and wilful misconduct, dishonesty, insubordination or neglect in the discharge of the employee's duties and functions under this contract, (d) failure to comply with any law or Council policy concerning sexual harassment or racial or religious vilification, (e) commission of a crime, resulting in conviction and sentencing (whether or not by way of periodic detention), which affects the employee's ability to perform the employee's duties and functions satisfactorily, or in the opinion of Council brings Council into disrepute, (f) absence from the business of Council without Council approval for a period of 3 or more consecutive business days."
In its letter of termination (the termination letter), the Council identified the following six "serious breaches of the Standard Contract" as justifying Mr Eldridge's summary dismissal: (i) Mr Eldridge failed to lodge a "Disclosure of Pecuniary Interest Return 2016" by 30 September 2016, for the period ended 30 June 2016 (in breach of cl 6.1.2(o) of the Standard Contract, cl 6.1.4 of the Standard Contract's "Conflict of Interests Policy" (the Policy) and s 449 of the Local Government Act 1993 (NSW) (the Act)); (ii) On 25 October 2016, Mr Eldridge approved a report for submission to the ordinary meeting of Council scheduled for 31 October 2016, and thereby knowingly misled the Council because the report falsely stated that Declarations of Pecuniary Interest Returns had been received from all "designated persons" as required under part 2, div 1 of the Local Government Act (in breach of cl 6.1.2(m) of the Standard Contract and cl 6.1.2(n) of the Standard Contract's "Code of Conduct" (the Code)); (iii) On 26 October 2015, Mr Eldridge lodged a "Disclosure of Pecuniary Interest Return 2015" with the Council, which failed to disclose interests in E Properties Wagga Pty Ltd (E Properties), Allante Pty Ltd (Allante) and Indigenous Products Australia Aboriginal Corporation (IPAAC), which was a disclosure that he knew or ought reasonably to have known was false or misleading in a material particular (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 449(1)(A) of the Local Government Act); (iv) On 4 January 2017, Mr Eldridge lodged a "Disclosure of Pecuniary Interest Return 2016" with the Council, and failed to disclose interests in E Properties, Allante and IPAAC, which was a disclosure that he knew or ought reasonably to have known was false or misleading in a material particular (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 449(1)(A) of the Local Government Act); (v) In the period from November 2015 to 17 February 2017, Mr Eldridge failed to declare and manage conflicts of interest in relation to the "Inglewood Road Planning Proposal" with respect to his son's [Joshua's] pecuniary interest in Inglewood Estate Wagga Pty Ltd (Inglewood Estate) and his own pecuniary interest in E Properties (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 459 of the Local Government Act); and (vi) In February 2017, Mr Eldridge retained a firm of solicitors to provide advice and to draft a press release in relation to the allegation that he had failed to disclose conflicts of interest, without the authority of Mayor Conkey, or, in the alternative, without having disclosed written details of the conflicts of interest to the Mayor (in breach of cl 6.1.2(m) of the Standard Contract, cl 6.1.2(n) of the Code, and cl 6.1.4 of the Policy).
In its defence to Mr Eldridge's claim, the Council also relied upon various additional matters as justifying his summary dismissal, consistent with the well-established principle that a party may justify the termination of a contract by reference to misconduct other than that relied upon at the time of termination, so long as that misconduct would have justified the summary dismissal: see Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 377-378; [1931] HCA 21; Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64 at [29] (Concut); see also I Neil and D Chin, The Modern Contract of Employment (2nd ed, 2017, Thomson Reuters) at [10.148].
The additional matters not referred to in the termination letter but on which the Council sought to rely to justify Mr Eldridge's summary dismissal were as follows: (i) Mr Eldridge engaged in external employment without the Council's knowledge or approval (in breach of cl 6.1.2(k) of the Standard Contract and Code). This related to the Katungul project referred to at [4] above; (ii) Mr Eldridge used the Council letterhead to issue a press release about his personal affairs (in breach of cls 6.1.8 and 6.1.11 of the Standard Contract and Code); (iii) Mr Eldridge failed to comply with his duty to act honestly and exercise a reasonable degree of care and diligence in carrying out his duties and functions (in breach of cl 6.1.2(m) of the Standard Contract); and (iv) Mr Eldridge incurred expenses paid for or reimbursed by the Council that were personal in nature.
In final address, the complaint in relation to personal expenses was confined to dinner expenses incurred on one particular occasion in October 2016.
The Council summarised Mr Eldridge's alleged breaches which it says justified his summary dismissal in its Further Amended Defence as follows: "a. the Plaintiff failed to disclose pecuniary interests during his employment with the Defendant; b. the Plaintiff failed to comply with pecuniary interest obligations during his employment with the Defendant, including by: i. failing to complete his pecuniary interest disclosures during his employment with the Defendant; and ii. failing to report to the Defendant that he had not disclosed his pecuniary interests during his employment with the Defendant. c. the Plaintiff engaged in outside employment without the knowledge or approval of Council; d. the Plaintiff failed to seek appropriate approval and retained solicitors to take advice on a personal matter; e. the Plaintiff used Council letterhead to issue a press release about his personal matters; f. the Plaintiff did not disclose or manage conflicts of interest he held during his employment with the Defendant; g. the Plaintiff failed to comply with his duty to act honestly and exercise a reasonable degree of care and diligence; and h. the Plaintiff incurred expenses paid for by Council or reimbursed that were personal in nature."
In a separate interlocutory judgment delivered on the first day of the hearing, the Council's claim that Mr Eldridge had failed to comply with his duty to act honestly was confined to those allegations of dishonesty that had originally been made against Mr Eldridge in a letter to him from Council dated 17 April 2017. The detailed allegations contained in that letter are set out more fully later in this judgment.
A number of the breaches summarised in [11] above overlapped in terms of their subject matter.
Of the various matters relied upon by Council to justify its summary dismissal of Mr Eldridge, it was the non-disclosure of his son, Mr Joshua Eldridge's, interest (and therefore Mr Eldridge's own interest) in the Inglewood Road Planning Proposal which was the focus of most attention in the course of the proceedings. This was at the heart of the conflict of interest allegations.
The Inglewood Road Planning Proposal was a proposal for the rezoning of land, referred to as the Inglewood Road Estate, from rural to residential. The land is on the outskirts of Wagga Wagga at Gumly Gumly, near Wagga Wagga Airport. The Inglewood Road Planning Proposal had been developed in the course of the first half of 2015, was dated 31 July 2015, and was submitted to the Council at some time thereafter. (The date of its actual submission was not clear on the evidence). It came before both the Strategy and Policy Committee of the Council and the Council itself on a number of occasions in the course of 2016. When questions were raised by a local journalist in mid-February 2017 about a possible non-declared conflict of interest of Mr Eldridge in relation to the Inglewood Road Planning Proposal, Mr Eldridge acknowledged that his son's interest generated a conflict for Mr Eldridge but claimed that he was previously unaware of his son's involvement with the proposal.
Mr Eldridge otherwise denied that the other matters upon which Council relied were unauthorised or were deliberate or were sufficiently serious so as to warrant summary dismissal. Thus he accepted that the filing of his Declaration of Pecuniary Interest due to be filed by 30 September 2016 was late and that it, and the Declaration for the previous year, did not disclose his interests in E Properties, Allante and IPAAC but contended that these interests were not included as he did not understand that he was to disclose companies of which he was only a shareholder, as opposed to a shareholder and director. It was also contended by Mr Eldridge that he mistakenly considered that his obligations to disclose any pecuniary interests to the Council were discharged by the lodgement of a Key Management Personnel Declaration on 25 July 2016.
Mr Eldridge's case was that the Council was not entitled summarily to dismiss him, and he claimed damages in the sum of $1,159,425.05, reflecting the income he would have received for the balance of his four-year term as General Manager of the Council. Alternatively, Mr Eldridge claimed that he should have been given a 38 week pay-out under cl 10.3.5 of the Standard Contract.

[2]

Summary of conclusions

For the reasons that follow and as elaborated more fully in the body of this judgment, the Council was both fully entitled to and justified in summarily dismissing Mr Eldridge as General Manager of the Council on 29 May 2017 on a number of bases.
In particular, contrary to his claims, I have found that Mr Eldridge well knew of his son's involvement with the Inglewood Road Planning Proposal long before he first claimed to have become aware of it in mid-February 2017 and had in fact underwritten his son's financial involvement in a joint venture with a landowner, Mr Graeme Brunskill (Mr Brunskill), to secure Council's approval for its rezoning, subdivision and development. Not only did Mr Eldridge not declare this interest at any time prior to 17 February 2017 notwithstanding that the Proposal came before both the Council, its Strategy and Policy Committee and its staff including Mr Eldridge on a number of occasions in 2016 whilst Mr Eldridge was Acting and then permanent General Manager of the Council, but when the issue of a conflict was raised with him on or about 16 February 2017, he falsely claimed to have been hitherto unaware of his son's involvement.
This false claim was reflected in instructions he gave to Lindsay Taylor Lawyers (LTL), a firm of solicitors on the Council's Panel of solicitors, in February 2017 as well as to his own solicitors, Hennessy Dowd, in April/May 2017; in oral and written reports to Mayor Conkey in February 2017; in a press release issued by Mr Eldridge on Council letterhead on 22 February 2017; and in representations made to Council on his behalf by Hennessy Dowd on 19 May 2017 prior to his dismissal.
In his oral and written evidence in this Court, Mr Eldridge endeavoured to walk a fine line, claiming that, while he was aware from 2015 that his son was involved with Inglewood Wagga Pty Ltd (contrary to what his lawyers, presumably on his instructions, had represented to Council on 19 May 2017 - see [257] below), he "was not aware that he [Joshua] was involved in any application that was or had been before Council" (CB 1/110-111 at [57]). This claim cannot be accepted; it is contradicted by a wealth of evidence that was before the Court and which is identified later in these reasons.
That evidence only came to light in May 2019 after these proceedings had been commenced when the Independent Commission Against Corruption (ICAC) released to the Council documents it had seized in a raid on Mr Eldridge's business premises after his dismissal from Council. In a further twist, on the penultimate day of the hearing in this Court, it emerged that records of three meetings in the course of 2015 that disclosed not only Mr Eldridge's knowledge of his son's involvement in the Inglewood Road Planning Proposal but Mr Eldridge's own involvement with it had been modified on 22 February 2017 in a computer server to which Mr Eldridge had access. This was the very day Mr Eldridge was stood down from Council. It was Mr Eldridge who drew attention to this modified evidence (but not the fact of its modification) on the fourth last day of the trial in an attempt to raise doubt about the authenticity of the documents which evidenced his knowledge of the Inglewood Road Planning Proposal prior to February 2017, and about which he had been cross-examined at length on the previous day of the trial.
It was a serious breach of Mr Eldridge's employment contract and statutory obligations not to disclose his interest, through his son, in the Inglewood Road Planning Proposal during his term as Acting General Manager and General Manager of the Council. It was an even more serious breach to deny both publicly and to the Mayor and Council any knowledge of that interest prior to 16 February 2017 when questions were raised about it in an email to the Council and Mr Eldridge from a journalist at The Daily Advertiser: see [215] below. I have found that Mr Eldridge's denials of any knowledge prior to that date were simply not credible and that the non-disclosure of his son's and therefore his own interest in the Inglewood Road Planning Proposal was deliberate.
The statutory provisions of the Act, the Standard Contract of Employment for General Managers of Councils in New South Wales, the Code and the Policy all place important emphasis on good corporate governance and proper and formal disclosure of pecuniary and non-pecuniary interests. They also require Councillors and senior Council Officers periodically to file declarations as to any interest that they or a close family member has in any companies. Such formal declarations are maintained in a register of the Council available for public inspection and scrutiny.
In accepting his appointment to the Council, Mr Eldridge presented himself as one committed to, expert in and cognisant of his responsibilities and indeed obligations to adhere to the regime of corporate governance to which Councillors and Council officers are subject. His failure to adhere to those obligations was serious and not trivial. His false claims to have been unaware of his son's interest (and therefore his own interest) in the Inglewood Road Planning Proposal cannot, regrettably, be characterised as other than dishonest.
In addition to the non-disclosure of his interest in the Inglewood Road Planning Proposal and the attempted deliberate concealment of that knowledge, Council relied upon a number of other matters in support of its decision summarily to terminate Mr Eldridge's employment. These included: (a) authorisation of a report containing a false representation to the Council in late October 2016 that all Designated Persons (which included Mr Eldridge) had completed their Declaration of Pecuniary Interest and that the relevant statutory obligations had been complied with, when this was not the case as Mr Eldridge knew that he himself had not completed his own declaration; and (b) a persistent failure to file his own Declaration of Pecuniary Interest for 2016 over a lengthy period and then, when his Declaration of Pecuniary Interest was belatedly filed in early January 2017, his failure to declare all his interests, including his 100% interest in the business trading as First National Real Estate Eldridge. First National Real Estate was a franchise real estate business which operated throughout Australia and First National Real Estate Eldridge operated in Wagga Wagga and had done so for many years. The business First National Real Estate Eldridge was owned by E Properties which was wholly owned by Mr Eldridge at all material times.
Mr Eldridge presented these matters in his evidence as ones of "oversight" or inadvertence on his part or of confusion as to what was required to be submitted. I also do not accept those explanations, both by reason of my adverse findings as to his credit and his honesty more generally (see [309]-[333] below), and also because of Mr Eldridge's extensive business experience and claimed commitment to the principles of good corporate governance, a commitment he emphasised when making his application for the permanent position of General Manager of the Council. For a well-qualified, apparently vastly experienced businessman who purported to be across corporate governance obligations, it is not possible to accept Mr Eldridge's evidence that his failure ever to disclose his 100% ownership interest, especially in E-Properties which was the owner of the First National Real Estate Eldridge business in Wagga Wagga and with which he had had a long association, was an oversight on his part. His claim that he only obtained that shareholding because of a loan to his son was also not sustained.
Mr Eldridge displayed a brazen indifference to his obligations fully and properly to disclose his and his family's interests, and misled the Council in October 2016 in confirming that all declarations of pecuniary interests by Designated Persons had been completed, when he knew full well that he himself had not completed such a disclosure.
A further justification relied upon by Council for Mr Eldridge's summary dismissal related to his continuing involvement, after his appointment as Acting General Manager and then General Manager, in work for the construction of a medical centre at Batemans Bay, what I have earlier described as the Katungul project. This continuing involvement was not known to the Council in May 2017 when Mr Eldridge was dismissed. As will be seen, Mr Eldridge had deliberately concealed it from the Council. That deliberate concealment bespoke a consciousness on his part that his unauthorised visits to Batemans Bay in relation to this project when he was meant to be working for the Council in his role as General Manager were in breach of contract. That breach of contract was a serious one.
Mr Eldridge also sought to represent that his involvement in the Katungul project was "benevolent" or charitable, claiming that he provided assistance to KAC pro bono. I do not accept this. There was clear evidence to the contrary which demonstrated that Mr Eldridge in fact received remuneration for rendering project management services to KAC through the company, Australian Indigenous Business Services Pty Ltd (AIBS), of which Mr Eldridge was the sole director and shareholder. Mr Eldridge's claims to the contrary also told strongly against his general creditworthiness.
Whilst I have found that the retention of LTL in mid-February 2017, the use of Council letterhead to issue a press release relating on one view to his own position, and one claimed expense which was in truth personal in nature rather than for Council purposes would not, in and of themselves, have warranted Mr Eldridge's dismissal, I consider that the allegations in relation to non-disclosure of the conflict with regard to the Inglewood Road Planning Proposal, the non-disclosure of his interest in E-Properties, the late filing of his Declaration of Pecuniary Interest in 2016 and the misleading of Council in that respect, and his unauthorised work on the Katungul project were each of such seriousness to have individually justified summary dismissal. When they are considered together or in combination, the case for Mr Eldridge's dismissal was an extremely strong one.
True it is that the Council was not aware of all of these matters at the time of Mr Eldridge's dismissal but, as I have explained, it is a well established principle of contract law that the termination of a contract may be justified on grounds additional to those known at the time of the dismissal or, as in the present case, by reference to facts that have become known in the interim.

[4]

Mr Eldridge's qualifications and professional experience

Mr Eldridge has the following formal qualifications: (a) Membership of Certified Practicing Accountants Australia (CPA); (b) Master of Accountancy and Corporations Law (Charles Sturt University); (c) Master of Business Administration (University of Sydney); and (d) Bachelor of Applied Science (Health and Information Management) (University of Sydney).
Mr Eldridge was the founder and Managing Director of the Eldridge Group of Companies (Eldridge Group), which holds a number of business interests in and around Wagga Wagga and the broader Riverina region. In his curriculum vitae, Mr Eldridge described the Eldridge Group as [CB 11362]: "consist[ing] of 9 companies that operate individually and provide services to a broad range of clients. Some of the services that we provide include but are not limited to: ● Accounting & Audit Services ● Real Estate Sales & Property Management ● Insurance Broking ● Financial Planning ● Business Re-engineering Consulting ● General Business Consulting ● Indigenous Consulting."
In his prior role as Managing Director of the Eldridge Group, Mr Eldridge described his duties broadly as those of "executive management", which comprised the following discrete functions: [CB 11362] "● Director of Audit, Risk and Finances ● Responsible for the overall operations of the company ● Oversee and deliver the company's performance ● Formulate policies and planning recommendations to the Board ● Manage Human Resources ● Creating, communicating, and implementing the organization's vision, mission and overall direction ● Liaise with client representatives and external consultants onsite ● Maintain awareness of both the external and internal competitive landscape, identify opportunities for expansion, customers, markets, new industry developments and standards, and so forth."
One of the businesses in the Eldridge Group was the business known as First National Real Estate Eldridge. As already noted, that business was owned by E Properties. That company was wholly owned by Mr Eldridge at all material times including his time as both Acting and permanent General Manager of the Council. Mr Eldridge had been a director of E Properties between 2005 and 2013. He had acquired his 100% shareholding in E Properties on 13 May 2005 [CB 5/4206]. The sole director of E Properties from 29 October 2013 was Mr Eldridge's son Joshua.
In addition to his duties as Managing Director of the Eldridge Group and according to his curriculum vitae, Mr Eldridge was also personally contracted to provide consulting services to "a broad range of Government Departments and Local Government Councils". Under one such contract, from 2003-2005, Mr Eldridge was engaged as an Administrator by the Director-General of the Queensland Office of Local Government to assist in the transition of six Local Government Areas from underlying funding structures to become incorporated under the Local Government Act 1993 (Qld). This transition was said to have involved the management of operating and capital funds of $400 million and $280 million respectively, culminating in the provision of advice by Mr Eldridge on "strategic planning to equip Councils to adapt to forced amalgamation and integration scenario's [sic] throughout Queensland".
Following this engagement and again according to his curriculum vitae, Mr Eldridge was contracted directly by a number of specific Local Government Councils to "provide strategic advice with regards to the performance of their staff and their services", including the implementation of self-developed Remediation Action Plans.
Over the nine-year period from 2003-2012, Mr Eldridge was apparently also engaged personally as a Special Administrator to the Commonwealth Government to examine a corporation that had active projects with the government worth over $250 million, some of which had fallen into default. According to Mr Eldridge's curriculum vitae, this engagement resulted in the corporation "undertaking significant organisational change". This followed engagements as a Strategic Advisor to "various government agencies" over the seven-year period from 1996-2003.
According to Mr Eldridge's curriculum vitae, his professional experience was not limited to the Eldridge Group and his personal advisory engagements by public sector entities. From 2009-2016, Mr Eldridge was the Managing Director of, and a shareholder in, Post Hunt Pty Ltd "Yamba" Farms & Livestock Holdings, in which capacity he "[r]eport[ed] to the Board and [was] accountable for maintaining a profitable business through the planning, budgeting and overseeing of farming operations, wool, lamb and cattle management and broad acre cropping".
As Advisor & Analyst to the Chairperson of Eastern Corporation Ltd - Becamal Pty Ltd (ASX: ECU) (ECU), a publicly-listed company, Mr Eldridge "[w]orked with the Chairperson, Investors and Directors on financing options for the planned expansion of coal production which included establishing overseas mine operations and [a] coal distribution centre". ECU was active in coal seam extraction in Queensland and New Zealand but does not appear to have operated in the Riverina region.
Mr Eldridge's curriculum vitae also recorded him as having had prior experience in the mining and resources industry as the Senior Manager of Strategy and Stakeholder Engagement - Lawn Hill New Century Mine at Century Mining Alliance Zinifex, a position he held from 2005 - 2006. The relevant curriculum vitae entry describes this role as "[r]eporting to the CEO and working with the senior management team to develop strategy, stakeholder engagement plans and the framework for the rejuvenation plans for exiting the main open pit and the area". Drawing upon his experience with the Eldridge Group in providing "Indigenous Consulting", Mr Eldridge "work[ed] with Aboriginal communities" to determine parameters of ore-for-royalty payments and "to drive social and economic development for indigenous people" living in the vicinity of the mine.
Prior to his appointment as Acting General Manager of the Council on 9 October 2015, Mr Eldridge had been involved with the Council as the Chair of its Audit and Risk Committee since the 2009 financial year. He was one of three members of the Committee required to be "external and independent of Council", with two members of Council constituting the balance of the Committee. The role of Chair of the Audit and Risk Committee comprised the provision of "independent assurance and assistance to Council on risk management, internal control, governance and external accountability responsibilities".
During the course of the proceedings, the Court's attention was drawn to the "Disclosure of Pecuniary Interest Return" completed by Mr Eldridge on 30 September 2014 when he was Chair of the Audit and Risk Committee [CB 2/954A]. That disclosure made no reference to his 100% ownership of E Properties, a conspicuous and unexplained omission.

[5]

Critical events prior to Mr Eldridge taking up the position as Acting General Manager

On 2 September 2014, Mr Eldridge, Mr Joshua Eldridge and Mr Brunskill, an owner of land adjacent to or in the immediate vicinity of Inglewood Road, Gumly Gumly, had a meeting, a contemporaneous file note of which, prepared on the First National Real Estate Eldridge letterhead, was entitled "Eldridge & Brunskill Joint Venture Initial Meeting 2nd September 2014".
The file note recorded that [CB 2/954]: "Eldridge and Graham [sic] [Brunskill] met 2nd September 2014. Graham [sic] and Eldridge decided to enter in a Joint Venture in order to develop Grahams [sic] land located at Inglewood Road, Wagga Wagga. Present: Alan Eldridge, Josh Eldridge & Graham [sic] Brunskill. Steps forward ● Compile a file with all documents ● Arrange an agenda for JV to meet every four weeks for the next 12 months ● Eldridge to approach council and hold baseline discussions for intended development concept ● Investigate external concept designer to work on plans and layout of intended sub division ● Heads of agreement to be developed between JV, Eldridge and Brunskill ● Develop the legal structure for the JV - Set up a company - Decide on a company and project name ● An agreement of land price in today's market needs to be made ● Indicative value of land".
Parenthetically, it should be noted that the First National Real Estate Eldridge letterhead on which the note of the meeting was recorded carried on the left hand side of the footer of the page the following information: "E Properties Wagga Pty Ltd Trading as First National Real Estate Eldridge ABN 84 062 105 677 ACN 062 105 677" with the words "Part of the Eldridge group of companies" appearing in the footer at the right hand side of the page (emboldening in original).
Under cross-examination, when asked why he was present at this meeting, Mr Eldridge said: [T. 395]: "Q: Why were you there? A: For the money. Q: I beg your pardon? A: To give Josh the money. He wanted money to do this. Q: So you were intimately - and did you give it to him? A: We loaned him money. Q: So that you had a real interest in this joint venture proposal; did you not? You got skin in the game. A: Well it's loaning my children money is never really much of an expected return, but that was why I was there."
As at 2 September 2014, Mr Joshua Eldridge was aged 27 years.
On Australia Day 2015, Mr Eldridge and his son Joshua were invited to and did attend a corporate box at the Sydney Cricket Ground to watch a One Day International cricket match. Also invited to attend on that occasion was Mr Tristan Kell (Mr Kell), an employee of AE Design Partnership, a firm of architects, designers and urban planners based in Sydney.
On 27 January 2015, Mr Kell sent an email to Mr Eldridge under the heading "Wagga Subdivision" as follows [CB 2/956]: "Hi Alan, Was good fun catching up with Josh and yourself again last night. We would be happy to have a look at your site in Wagga. Could you please provide me with the address? We can prepare a proposal for you to look at. Look forward to catching up again."
The following afternoon, on 28 January 2015, Mr Kell sent an email to Mr Joshua Eldridge, copying in Mr Eldridge, under the heading "Business Development in Wagga" in which he wrote the following [CB 2/968]: "Great to catch up on Monday [26 January 2015]. Thought I would follow up on the Wagga site, in which you are interested in doing a rural residential subdivision. ae design partnership could work closely with your group in relation to many property development opportunities within the Riverina and Sydney. If you could send me an address I will provide a proposal for you to consider. Please do not hesitate to contact me if you have any questions."
Later that same afternoon, Mr Joshua Eldridge replied to Mr Kell's email as follows [CB 2/967]: "Great to meet you also, we had a good time. I will get some information together for you and send through tomorrow. Had a few things to catch up on today but we would certainly appreciate your insight into the potential of the project and any other that may arise." (Although this email was not copied to Mr Eldridge, it did form part of a string of emails in which he was later copied).
On 30 January 2015, Mr Joshua Eldridge emailed Mr Eldridge under the heading "Inglewood Rd Land". The email stated "[l]ooking at utilizing [sic] the land as much as possible. May need a mix of lot sizes from 1, 2 & 5 acre lots" [CB 2/960].
Approximately 30 minutes later, Mr Eldridge sent an email to Mr Kell, also headed "Inglewood Rd Land", and copying in Mr Joshua Eldridge. This email forwarded the email at [54] above and stated that [CB 2/959-960]: "I am sorry that I have not contacted you before this, its [sic] been a bit hectic here, after the short break. Firstly I would like to say that it was great to catch up last week at the cricket and we really did enjoy meeting with you again. Attached for your perusal is the development that we are about to consider and commence. As you can see the current owner has had very preliminary discussions with the local town planner but is now looking at progressing the project further with assistance and involvement from us. At this stage I would appreciate it if you could consider the attached and then perhaps we can arrange for a time to talk about the possibilities and the pros and cons through the planning process." (emphasis added). The attachment referred to by Mr Eldridge in this email was not in evidence but it may comfortably be inferred from its subject heading that it was referring to the "Inglewood Rd Land". [CB 2/959-960].
On 13 February 2015, Mr Kell sent the following email to Mr Eldridge and his son, with a Mr Rohan Dickson (Mr Dickson) (a Director of AE Design Partnership) copied in [CB 2/959]: "Hi Alan and Josh, As per the correspondence you have provided and a review of the Wagga Spatial Plan 2013-2042: there is merit in pursuing a large lot rural residential subdivision. Council are undertaking further studies, which will include housing and economic studies, which will take some time. A conservative estimate if you were to wait for the Council planning process it might not be until five years before there is a rezoning. A pro-active approach would be to consider a spot re-zoning or planning proposal this process may take 12-18 months: (Council Officer recommends 12 Months) ● This would incorporate lodging a concept plan, supported by a short report that supports the concept that would be lodged to an internal group within Council. The internal group incorporates members from Council's Infrastructure, Economic Development, Planning and Environment and Community units. ● Questions or feedback that may arise would be provided to us and we would have an opportunity to respond through a presentation. ● Council would then issue an issues paper for the proponent to consider prior to lodging a planning proposal, which is the formal process to allow a re-zoning of the site. Timing We had preliminary discussions with Crystal Goldman [sic: Golden] A/Manager Strategic Planning of the Wagga Wagga City Council and offer the following time frames: ● Council accept planning proposals on 31 January and 31 July. ● To meet July 31 deadline we would need to lodge a concept to Council in March, 2015. ● Scheme to presented to internal group mid-April. ● Lodge re-zoning application to Council, 31 July. Attached is a fee proposal for your consideration." (emboldening in original)
Although the header of Mr Kell's email of 13 February 2015 did not appear to contain any attachments, the "fee proposal" referred to in the email was in evidence [CB 2/962-966]. The fee proposal was addressed to Mr Eldridge and its introduction read as follows [CB 2/962]: "Dear Alan, We are delighted to be invited to submit a fee for the provision of town planning and urban design services Wagga NSW. - We understand that you are in the process of undertaking due diligence and testing the feasibility of the site. - The site has been identified as an opportunity site within Wagga Spatial Plan 2013-2043 - The southern part of the site is seen as a long term opportunity site (illustrated in figure 2). - The large site area will provide an opportunity to improve access links to Airport and Wagga, which have been identified within the Spatial Plan. Council have recommended that we lodge a concept plan to Council in March in order to meet Council's timeframes for lodging a planning proposal July 31. There are two processes that can facilitate the change of zoning to facilitate the rezoning of the site. ● Undertake a spot rezoning, which would require a formal rezoning application to Council. We have attached a diagram that explains this process. ● Council are in process of studies to inform their strategy for the release of land within the LGA. The proponent can wait for Council to amend the LEP and prepare submissions and be a part of this process." (emphasis added).
On 9 March 2015, Mr Kell sent an email under the heading "Inglewood Rd, Wagga" to Mr Joshua Eldridge, copying in Mr Eldridge and Mr Dickson. This email read [CB 2/967]: "As per our discussion last week; ● The first stage of the proposal will provide a high level concept for the site and some yield estimates. ● We will also identify what additional technical information and studies are required to provide to Council prior to lodging the planning proposal (re-zoning application). ● The second stage will incorporate a report identifying opportunities and analysis of the site. ● Further technical information would be incorporated within the layouts within the second stage, providing a more detailed layout for the site. Timing is a key issue as Council will only accept a re-zoning application on 31 July, 2015. Prior to lodging, we would like to have some support from Council Officers through their 'pre-lodgement' process and workshop process. Therefore it is important to get moving on this proposal as soon as possible." (emphasis added).
A document entitled "Inglewood Estate: Minutes" evidenced a meeting held at 1pm on 11 March 2015 attended by Mr Brunskill, Mr Joshua Eldridge and Ms Vicki White (Ms White), an office manager of First National Real Estate Eldridge [CB 2/973] although, as will be seen below, the meeting may in fact have been held on 10 March 2015 but the minutes prepared on 11 March 2015. These minutes were as follows: "General: ● Reasonable amount Graeme had mentioned for the land was $4,000 per Acre ● Money over per Acre would be a 50/50 Split Partnership ● Timeframe ○ 3 Years, then plan for a Sale - Extra 2 years if market is down ● Open communication (cc in correspondence) Money Input: ● $10,000 each for Setup Costs ● $50,000 each for Capital Input Required: ● Partnership Agreement ○ Standard Agreement ○ Allocation Split - Profit 50/50 ○ Exit Strategy (Clause) ○ Land is Graeme's - Company has No Interest ● Company Purchase ● Financial Preparation Costs ● Monthly Meeting ● Bank Account - Westpac Bank (Two Signatures) Land Price/Sale: ● Current Land Value - $4000 per acre (Base Rate) ● Quick Calculation - $7000 per Acres Sale - $7000 per Acres x 400 = 2.8 Million Cost - $4000 per Acres x 400 = 1.6 Million Total = 1.2 Million $1.2 Million - 50/50 Split share each = $600,000 ● Quick Calculation - $5000 per Acres Sale - $5000 per Acres x 400 = 2.0 Million Cost - $4000 per Acres x 400 = 1.6 Million Total = $400,000 $1.2 Million - 50/50 Split share each = $200,000". (emphasis in original)
On 11 March 2015, Ms White sent an email to Mr Eldridge and Mr Joshua Eldridge attaching the minutes of a meeting concerning the Inglewood Road development [CB 2/972]. Ms White wrote: "Hi Josh & Alan Quick notes from yesterday. I will order the Company and organise a Bank Account to be opened. Thinking an Agreement needs to be done as soon as possible."
The reference to the "notes from yesterday" suggest that the minutes dated 11 March 2015 and referred to in [59] above were minutes of a meeting held on 10 March 2015. Nothing of significance turns on this.
Later during the afternoon of 11 March 2015, Ms White sent the following email to Mr Brunskill, with Mr Joshua Eldridge copied in [CB 2/970]: "Hi Graeme Please find attached the Incorporation Certificate for the New Company. We had to add Wagga to the name so could be accepted. Should you have any questions please do not hesitate in contacting me."
Inglewood Estate Wagga Pty Ltd was incorporated on 11 March 2015, with Mr Joshua Eldridge and Mr Brunskill each holding 50% of the shares in it.
Mr Brunskill replied to Ms White's email a short time later, as follows [CB 2/970]: "Hello Vicki, I have received your e-mail re: Incorporation Certificate. The addition of Wagga is probably a good idea as there are Inglewoods in other parts of Australia. I would like a summary of minutes of our meeting on Tuesday 10th March 2015, when you have time. Could you ask Joshua when he expects Alan to have a draft agreement available for me to sight." (emphasis added). The reference to Tuesday 10th March 2015 provides further support for the view that the minutes bearing the date 11 March 2015 in fact related to a meeting the previous day although, as noted above, nothing of significance turns on this.
On 12 March 2015, Mr Eldridge was forwarded a copy of the email correspondence referred to above together with the following message from Ms White: [CB 2/970]: "FYI - This is from Graeme. When do you think we can have a draft Agreement Ready? I will then respond to Graeme."
On 13 March 2015, Mr Eldridge replied in the following terms [CB 2/975]: "hi I think we need to have a bit of a discussion about this and how we see it going so I can draft an agreement .. need to be carful [sic] how we present the numbers." (emphasis added). Pausing here, Mr Eldridge was asked in cross-examination whether he had "anything to do with a joint venture agreement" to which he responded "I probably had a discussion ‑ I probably had a discussion around a joint venture agreement": [T. 406]. Later, when asked about this email, he said "I had discussions with them about different options of going forward" ([T. 407]) and "I was helping with the terms of the agreement and I may have ‑ I might have even put a rough concept draft together but it wouldn't have been the agreement" [T. 408].
On 25 March 2015, Mr Joshua Eldridge forwarded to his father and Ms Audrey Brunskill (a co-proprietor of the relevant land at Inglewood Road, Gumly Gumly), with Ms White copied in, an email from Mr Kell [CB 2/976] with attachments. Mr Kell's email read as follows: "Hi Josh, ● Attached are the diagrams associated with task 1and [sic] some commentary associated with the planning proposal, context and issues. ● We need to submit something to Council by March 31, to meet their July 31 deadline to lodge the Planning Proposal. ● We are able to assist with briefing technical consultants to assist with stage 2 and preparing documentation with the planning proposal now. Some of the attached documentation will be incorporated within the Stage 2 documentation that we provide to Council." (emphasis added).
The report attached to Mr Kell's email was titled "Stage 1: Inception and Testing" [CB 2/978-984] and commenced by stating that "[t]he proposed development would require a planning proposal that responds to the Wagga Wagga Spatial Plan (2013), which identified a portion of the site as 'Potential Urban Land', having potential to be rezoned from a rural zoning to a residential zone'" [CB 2/978]. Annexed to the report was a series of six "concept plans", including an "indicative lot layout" of the proposed subdivision of the land [CB 2/984].
In his email to his father and Mr Brunskill, Mr Joshua Eldridge wrote [CB 2/976]: "Hi Alan and Graeme Please find attached documents from Tristan. Can we please meet Thursday morning at 9am [at] Edward St office to discuss in more detail." "Edward St office" was a reference to the office of First National Real Estate Eldridge in Wagga Wagga.
On 8 April 2015, Mr Joshua Eldridge sent his father an email attaching a report sent to the Council which related to what became the Inglewood Road Planning Proposal. The email read [CB 2/985]: "The attached report was sent through to council last night. This will allow council to comment and give us some direction for their requirements in order for the changes to be made. Please let me know if you have any comments or would like any clarification around any parts of the report."
Attached to this email was an AE Design Partnership report in relation to Inglewood Road, Gumly Gumly, entitled "Confidential Information for Council" [CB 2/986-995].
In evidence were purported minutes of a meeting held on 29 April 2015 between Mr Eldridge, Mr Joshua Eldridge, Mr Brunskill and Ms White concerning the "Inglewood Estate" [CB 2/996]. Minutes of this and other meetings relating to Inglewood Road (including those set out at [59] above) came to the Council's attention when it gained access on 1 May 2019 to documents that had been seized by the ICAC following what Mr Eldridge described in his oral evidence as a "raid on [his] family's businesses: see [T. 371].
It is necessary at this point to interrupt the chronological narrative to explain in a little more detail the circumstances surrounding not only the production of these minutes but also the emergence of different versions of these minutes over the course of Mr Eldridge's testimony.
ICAC had conducted an investigation into various allegations against Mr Eldridge. On 29 April 2019, Commissioner Rushton SC made a direction pursuant to s 111(4) of the Independent Commission Against Corruption Act 1988 (NSW) making certain material listed in an Annexure to the Direction available for use in these proceedings. The material was made available to Mr Eldridge's legal representatives on 6 May 2019. (ICAC closed its investigation into Mr Eldridge on 11 September 2019: see [271] below).
Mr Eldridge was cross-examined about the minutes of the 29 April 2015 meeting and subsequent sets of minutes on the first day of his cross-examination, Monday 8 March 2021. On the following morning, Mr Eldridge volunteered that he had some suspicions about the minutes relating to Inglewood Road Estate about which he had been cross-examined the previous day. When pressed for the reason for this suspicion, Mr Eldridge indicated that, on the previous evening, he had searched an electronic archive file of the Eldridge Group at his home (the Eldridge Archive) and suggested that some of the documents about which he had been cross-examined were different to those which he had seen on the Eldridge Archive.
Mr Goot SC, who appeared for the Council, made an oral call for the production of the archive documents to which Mr Eldridge referred in his evidence on the second morning of his cross-examination. Documents were duly produced and made available to Mr Goot on the third morning of Mr Eldridge's cross-examination. The documents produced revealed a number of different versions of the minutes which had been provided to the Council by ICAC and about which Mr Eldridge had been cross-examined on the first day of his evidence. These differences were highly significant and, for the most part, related to Mr Eldridge's presence at particular meetings in relation to Inglewood Road and/or his involvement in that project, in particular but not limited to the drafting of agreements and unit trust documents.
The differences in the versions of sets of minutes for various days in turn prompted a further call for the metadata for the documents produced from the Eldridge Archive. Mr Eldridge was apparently not familiar with the concept of metadata, inquiring what metadata was when the oral call was made. (Metadata, in the context of documents stored on a computer, is data that "sits behind" any given document and identifies the time and date of the documents' original creation and, if the version of the document on the computer system has been modified since it was originally created or placed on the system, the date of that modification). The metadata called for was subsequently produced by Mr Eldridge's lawyers. It revealed that the Inglewood Estate minutes produced from the Eldridge Archive for 29 April 2015, 12 June 2015 and 22 September 2015 had each been modified in a 10 minute period on the morning of 22 February 2017. The significance of that date was that it was the day Mr Eldridge was stood down from his position as General Manager pending an investigation into the alleged conflict of interest.
The differences between the versions of the minutes as produced to the Council by ICAC and subsequently tendered by the Council in the proceedings (the ICAC Produced Minutes) and those produced by Mr Eldridge from the Eldridge Archive will be pointed out as each set of minutes is set out below, noting that the minutes produced from the Eldridge Archive were subject to a s 136 limitation under the Evidence Act 1995 (NSW), only being admitted as evidence of the documents produced by Mr Eldridge from the Eldridge Archive in the circumstances described above. [1] The significance of the Eldridge Archive minutes is also discussed in my findings on credit at [310]-[319] below.
The ICAC Produced Minutes of the meeting of 29 April 2015 recorded that Mr Eldridge, Mr Joshua Eldridge, Mr Brunskill and Ms White were present [CB 2/996]. The minutes continued: "General: ● Discussed the progress of the Development ● Josh and Graeme to go to Westpac to finalise opening of account. ● Next stage required by 1 July 2015 for submission to council ● Discussion in regards to preparation of Company Accounts and it has been agreed the cost would be $1000.00 per year. Accounts to be paid: ● CST - Company Purchase - $655.00 ● AE Design Partnership - $4065.88 These have been approved for payment. Action: ● Josh to contact Tristan [Kell] to confirm what is required to be done for the Reports ● Alan to prepare Partnership Agreement ● Vicki to prepare Cashflow ● Next Meeting to be schedules [sic] prior to 10 May." (emphasis added)
The version of the minutes of the meeting of 29 April 2015 produced by Mr Eldridge from the Eldridge Archive differed from the above set of minutes in the following significant respects: (i) Alan Eldridge was not shown as being present at the meeting; and (ii) the reference in the third last bullet point of the ICAC Produced Minutes, namely, to "Alan to prepare Partnership Agreement", was omitted from the set of minutes produced from the Eldridge Archive.
Asked in cross-examination about the reference in the minutes to "the next stage required by 1 July 2015 for submission to council", Mr Eldridge accepted that he understood this to be a reference to the defendant Council: [T. 411.] In relation to the statement "Alan to prepare Partnership Agreement", Mr Eldridge said "[t]hat doesn't necessarily mean I was going to prepare the partnership": [T. 412].
On 12 June 2015, Mr Eldridge participated in another meeting regarding "Inglewood Road Estate" according to the ICAC Produced Minutes. Also in attendance according to that set of minutes were Mr Brunskill, Mr Joshua Eldridge and Ms White. The meeting minutes were as follows [CB 2/1002]: "General: ● Discussed the progress of the Development ● Fee Proposal from AE Designs with an Updated Scope of Works required. Next Stage required by 30 June 2015 for submission to council. ● Discussion in regards to the Meeting Graeme and Josh had with Graeme's Accountant. ○ Concerns of the Risk for Graeme ○ Selling Farm Land to another Entity ○ Set up of a Trust (Unit Trust) This is not an issue with Alan and Josh and will be addressed when required. ● Alan has suggested bringing in more investors into the project. Alan had mentioned that he would like to possibly bring Mark Fleming as an investor to the project. Graeme did not have an issue with this. ● Further funding will be required for this stage, approx. $30,000. This will be required once the invoices have been issued for payment. Accounts to be paid: ● AE Design Partnership - $4023.25 (This has been approved for Payment) These have been approved for payment. Action: ● Approval for Stage 3 to be done by AE Designs (This has been actioned)". (emphasis added)
The material differences between the ICAC Produced Minutes of the meeting of 12 June 2015 and those produced from the Eldridge Archive were as follows: (i) Alan Eldridge was not shown as being present at the meeting in the Eldridge Archive version; (ii) the words "Alan and" in the sentence in the ICAC Produced Minute - "this is not an issue with Alan and Josh and will be addressed when required" - prior to the fourth bullet point did not include the words "Alan and" in the Minutes produced from the Eldridge Archive; and (iii) the sentences "Alan has suggested bringing in more investors into the project. Alan had mentioned that he would like to possibly bring Mark Fleming as an investor to the project. Graeme did not have an issue with this" do not appear in the version of the minutes produced from the Eldridge Archive.
An application dated 31 July 2015 was lodged with the Council for the rezoning of land at Inglewood Road, Gumly Gumly from "RU1, Primary Production to RS large lot residential" [CB 2/1009]. The document recorded the applicant as "Mr Tristan Kell" and the proposal as encompassing the subdivision of rural residential allotments, ranging in size from 6,000m2 to 2ha, which would also require the construction of public access roads and the installation of connections to essential services. By way of the requisite "[c]onsultation prior to submitting [the] application, it was proposed that the applicant would conduct a teleconference with the Council's strategic planning taskforce and a local environment plan (LEP) working group review. Mr Kell also nominated the application to be considered in the second round of the Council's biannual planning proposals.
Attached to the application was a document authored by Mr Kell on behalf of AE Design Partnership and entitled "Inglewood Road: Master Plan Report" [CB 2/012]. This document was structured as a series of plans and maps providing an explanation of matters including: 1. the proposed project's compliance with the Wagga Wagga Spatial Plan 2013-2043; 2. the social, environmental and infrastructure context of the project; 3. analysis of the proposed project site; 4. the development footprint; 5. the indicative lot layout and lot sizes; 6. the necessary amendment to land use zoning; and 7. a summary and recommendation in the following terms [CB 2/1036]: "The proposed rezoning would amend the land-use zoning and minimum lot size to enable a large lot rural lifestyle land subdivision. While consistent with the Wagga Spatial Plan the proposed subdivision is not supported by a residential study at this current time. From a strategic planning perspective the site is within an area, which has undergone transition over recent years with smaller land parcels that have been historically subdivided utilised for rural lifestyle lots. Additionally land to the north and south of the site are recent rural residential subdivisions. Contextually this site is within a short distance to employment, education and recreational activities. The site has two potential road infrastructure upgrades, which would likely be serviced by improved public transport and the proposal would contribute to the payment of improved infrastructure in the area. This site can be serviced by essential infrastructure and the landowners have commenced negotiations with these providers. This project provides Council the opportunity to implement the policy of Spatial Plan."
A further meeting to discuss the "Inglewood Road Estate" was held on 6 August 2015 and, according to the ICAC Produced Minutes, this meeting was attended by Mr Brunskill, Mr Eldridge, Mr Joshua Eldridge and Ms White. The ICAC Produced Minutes of this meeting were as follows [CB 2/1132]: "General: ● Discussed the progress of the Development ● Application requires [sic] be signed today by the owners of adjoining properties to the development. Once signed this is to be submitted to council by Friday 7th August 2015. ● Council Feedback to the Proposal: ○ Supply and Demand (More Supporting Documents) ○ Restricting other land owners ● More funding is required to cover the initial costs of the development. On calculation this will be $32,000. It has been agreed that Graeme and Josh will both contribute $16,000 each to cover these costs. ● Graeme has agreed to pay the $10,500 for the lodgement of the application to the Council. This amount will be deducted from the $16,000 contribution required. Accounts to be paid - Approved for Payment ● AE Design Partnership - $1504.25 (Invoice 415) ● AE Design Partnership - $4918.38 (Invoice 425) Action: ● Funding the Development. Estimated cost is $100,000 to $150,000 for the Development Application. Looking at the Stages and which one would be more cost effective to develop first. ● Meeting with All Owners ● Meeting with Investors". (emphasis added)
On 22 September 2015, a further meeting occurred at which Mr Brunskill, Mr Joshua Eldridge, Mr Eldridge and Ms White were present. The ICAC Produced Minutes recorded the following: "General: ● Proposal has been Submitted ● Supporting evidence is required - Report to be Done ○ 2 Valuers to meet with Josh [Eldridge] (Craig Barrett & Chris Egan) ○ Restricting other land owners ● Cashflow - Funds Required ○ Graeme - $10,000 ○ Josh - $19,500 Accounts to be paid - Approved for Payment ● Aitken Rowe Testing - $1507.00 (Inv 7136) ● GHD - 13684.00 (Inv 2217906) ● AE Design Partnership - $13068.00 (Inv 483) ● AE Design Partnership - $5423.00 (Inv 526) Action: ● Unit Trust to be set up. Meeting to discuss the setup next week with Alan [Eldridge], Josh [Eldridge], Graeme [Brunskill] & Dan (Bush&Campbell) ● Neighbours Meeting to follow ○ Presentation on the Development ○ Options to neighbours - Contribution or Trust to purchase land (First Right)". (emphasis added).
The material differences between the ICAC Produced Minutes dated 22 September 2015 and those produced from the Eldridge Archive were as follows: (i) Mr Eldridge's name does not appear in the list of those present at the meeting in the Eldridge Archive version of the minutes; and (ii) under the sub-heading "Actions" the dot point in the ICAC Produced Minutes stating "unit trusts to be set up. Meeting to discuss the set up next week with Alan, Josh, Graeme and Dan (Bush&Campbell)" omits the reference to "Alan" in the minutes taken from the Eldridge Archive.
The removal of Mr Eldridge's name from this version of the minutes was of particular significance because this was the meeting in which it was noted that the Proposal had been submitted. The date of this meeting was only two weeks prior to Mr Eldridge's appointment as Interim or Acting General Manager of the Council.
A further meeting in relation to Inglewood Road Estate was held on 3 December 2015 between Mr Brunskill, Mr Joshua Eldridge and Ms White. The minutes of this meeting were not produced by ICAC such that the only version before the Court had been retrieved from the Eldridge Archive. These minutes recorded the following: "General: ● General Discussion on the progress of the project ● Looking and Funding to the Project and what needs to happen to progress Accounts to be paid - Approved for Payment ● AE Design Partnership - $5423.00 (Inv 526) Actions ● Josh [Eldridge] to meet with Craig Barrett in regards to a Valuation Report ● Once Valuation Report received - Graeme [Brunskill] & Josh [Eldridge] to meet with Council ● Letter to be sent to Neighbours in regards to share of Costing ● Josh [Eldridge] to calculate - Consulting Fee"
This meeting, at which Mr Eldridge is not recorded as being present, was held after he commenced in his position as Acting General Manager of the Council.

[6]

Interim/Acting General Manager

Mr Eldridge was appointed as Interim or Acting General Manager of the Council on 7 October 2015 for the period until 6 April 2016. Upon commencing his role as the Acting General Manager, Mr Eldridge resigned from his position as Chair and member of the Council's Audit and Risk Committee.
At the time of his appointment, Mr Kendall was the Mayor. He deposed in his evidence in the proceedings to having had the following conversation with Mr Eldridge [CB 1/145 at [32]]: "KENDALL: You've got to exit the day to day [running] of your family businesses. Think of it as an opportunity, a time for you to look at the future of those operations. You're expected to dedicate yourself to Council. You can't have any conflicts of interest, perceived or otherwise, between Council business and your existing business interests. ELDRIDGE: I understand."
Although Mr Eldridge accepted that he did have a conversation with Mr Kendall in or around late September or early October 2015 in relation to the requirement that he transition himself out of his existing business interests in order to perform the role of Acting General Manager, he denied that it occurred as deposed to by Mr Kendall, and instead advanced the following version of the conversation [CB 1/113 at [68]]: "KENDALL: We would like you to take the role of interim GM, do you think you would be able to do the job? Given your current commitments? ELDRIDGE: As you know, I have a number of business interests that I would need some transition time to deal with. I am currently in the process of transitioning to retirement and there is a retirement plan in place, but I could move things forward.
Mr Kendall did not deny that the conversation occurred as recalled by Mr Eldridge. Ultimately, Mr Kendall maintained that, irrespective of Mr Eldridge's recollection of a different exchange, a conversation occurred between the two men as set out in [94] above. Under cross-examination, he described the purpose of this conversation as follows [T. 294]: "I think the aim of the discussion was to make it very clear that he couldn't have other employment but that because it was an interim position I wouldn't expect him to go and totally change the structure of his interests in businesses and that was generally the essence of that conversation, what I've got in paragraph 32 is a paraphrase I guess of the essence of the discussion, that's not meant to be a quote from that discussion because four or five years later it was hard to remember the exact words used."
Mr Eldridge's letter of offer, which he countersigned on 12 October 2015, noted that his employment conditions were "as per the Local Government Act 1993, the Office of Local Government "Standard Contract of Employment - General Managers of Local Councils in New South Wales" and "other relevant employment legislation". The letter of offer also recorded that "[a]ll staff are required to abide by the Council's Policies and Procedures, Code of Conduct and other relevant legislation".
A media release issued by the Council on 7 October 2015 stated: "Wagga Wagga City Council has appointed well-respected local businessman Alan Eldridge as Acting General Manager on a six-month contract. 'Mr Eldridge has extensive experience in a range of fields, which will be of great benefit to Council and the community during this transition period,' Mayor of the City of Wagga Wagga Councillor Rod Kendall said. 'Mr Eldridge has been the Chair of Council's Audit and risk Committee since 2009 and has a background in managing large organisations. ''He has also been involved with the local government amalgamation process mainly in Queensland and is a special administrator appointed by the Federal Government to assist organisations that require senior management experience.'"
It is plain that, at the time of his appointment as Acting General Manager of the Council, Mr Eldridge was a very experienced businessman whose experience extended to local government generally and to Wagga Wagga City Council in particular.
The appointment of a person to the role of general manager of a council is required by s 334 of the Act. Section 335 of the Act provides: "The general manager of a council has the following functions: (a) to conduct the day-to-day management of the council in accordance with the strategic plans, programs, strategies and policies of the council, (b) to implement, without undue delay, lawful decisions of the council, (c) to advise the mayor and the governing body on the development and implementation of the strategic plans, programs, strategies and policies of the council, (d) to advise the mayor and the governing body on the appropriate form of community consultation on the strategic plans, programs, strategies and policies of the council and other matters related to the council, (e) to prepare, in consultation with the mayor and the governing body, the council's community strategic plan, community engagement strategy, delivery program, operational plan and annual report, (f) to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions, (g) to exercise any of the functions of the council that are delegated by the council to the general manager, (h) to appoint staff in accordance with the organisation structure determined under this Chapter and the resources approved by the council, (i) to direct and dismiss staff, (j) to implement the council's workforce management strategy, (k) any other functions that are conferred or imposed on the general manager by or under this or any other Act."
The critical terms of the Standard Contract for the purposes of the present dispute were contained at cls 6 and 10. Clause 6 stipulated Mr Eldridge's "duties and functions" as General Manager, whilst cl 10 governed the parties' rights to terminate the agreement. Its terms in respect of summary dismissal have already been noted at [6] above.
The relevant provisions of cl 6 were as follows (with the references to "the Act" being to the Local Government Act, noting that the references to that Act are to the Act in the form it took as at 29 May 2017): "6.1 The employee will: 6.1.1 to the best of their ability, meet the performance criteria set out in the performance agreement as varied from time to time, 6.1.2 carry out the duties and functions imposed by the Act and Regulation, or any other Act and associated regulations, which include but are not limited to: (a) the efficient and effective operation of Council's organisation, (b) implementing, without undue delay, the decisions of Council, (c) exercising such of the functions of Council as are delegated by Council to the employee, (d) appointing staff in accordance with an organisation structure and resources approved by Council, (e) directing and dismissing staff, (f) implementing Council's equal employment opportunity management plan, (g) consulting with Council prior to the appointment or dismissal of senior staff, (h) reporting to Council, at least once annually, on the contractual conditions of senior staff, (i) giving immediate notice to Council on becoming bankrupt or making a composition, arrangement or assignment for the benefit of the employee's creditors and providing Council, within the time specified by Council with any further information concerning the cause of the bankruptcy or of the making of the composition, arrangement or assignment, (j) subject to subclause 6.2.3, providing advice and recommendations to Council or the mayor if directed to do so, (k) not engaging, for remuneration, in private employment or contract work outside the service of Council without the approval of Council, (l) not approving, where appropriate, any member of Council staff from engaging, for remuneration, in private employment or contract work outside the service of Council that relates to the business of Council or that might conflict with the staff member's Council duties, (m) acting honestly and exercising a reasonable degree of care and diligence in carrying out the employee's duties and functions. (n) complying with the provisions of the code of conduct. (o) preparing and submitting written returns of interest and disclosing pecuniary interests in accordance with the Act and the Regulation, 6.1.3 carry out duties and functions set out in Schedule B as varied from time to time by agreement between the employee and Council, such agreement not to be unreasonably withheld, 6.1.4 carry out the duties and functions set out in the policies of Council as adopted by Council from time to time during the term of this contract, 6.1.5 observe and carry out all lawful directions given by Council, in relation to the performance of the employee's duties and functions under this contract, 6.1.6 work such reasonable hours as are necessary to carry out the duties and functions of the position and the employee's obligations under this contract, 6.1.7 obtain the approval of the Council for any absences from the business of Council, 6.1.8 promote ethical work practices and maintain a culture of integrity and professionalism where Council staff members treat each other, members of the public, customers and service providers with respect and fairness, 6.1.9 facilitate Council staff awareness of the procedures for making protected disclosures and of the protection provided by the Protected Disclosures Act 1994, 6.1.10 take all reasonable steps to ensure that actions and policies of Council accord with the strategic intent of Council, 6.1.11 take all reasonable steps to maximise compliance with relevant legislative instruments, 6.1.12 maintain effective corporate and human resource planning, 6.1.13 maintain the council staff performance management system, 6.1.14 maintain satisfactory operation of Council's internal controls, reporting systems (including protected disclosures), grievance procedures, the documentation of decision-making and sound financial management, 6.1.15 develop procedures to ensure the code of conduct is periodically reviewed so that it is in accordance with the Act and regulation an adequately reflects specific organisational values and requirements …" (emphasis added)
In relation to cl 6.1.2, it is relevant to note s 353(1) of the Act, which operated to prohibit the general manager of a council from engaging in external employment absent the council's written approval; s 439(1), which required members of council staff to act honestly and with a reasonable degree of care and diligence in carrying out their duties and functions; and s 445 which mandated the preparation of written returns of interests, pecuniary and non-pecuniary, in accordance with ss 449 and 459 of the Act respectively. These two provisions were explicitly referred to by the Council in the termination letter.
Clause 6.1.2(n) of the Standard Contract expressly incorporated the provisions of the Wagga Wagga City Council Code of Conduct (the Code), adopted in February 2013 pursuant to s 440(3) of the Act. By s 440(5)(a), as a member of the Council staff, Mr Eldridge was in any event required to comply with the applicable provisions of the Code.
Mr Eldridge accepted under cross-examination [T. 337-340] that, in his position as Acting and then permanent General Manager of the Council, he was required to be completely honest, to adhere to the highest levels of probity and integrity, to act as a role model, to be beyond reapproach, to be prudent financially, and to have a detailed understanding of and commitment to implementing and overseeing good governance. He also stated that he understood that he was required to declare, identify and take appropriate steps to manage any conflicts of interests of which he was aware. He accepted that he knew he was a "designated person" within the meaning of that term in the Act.
A "designated person" was required, pursuant to s 449 of the Act, to complete and lodge a return in a form prescribed by the regulations disclosing that officer's interests. Section 449 of the Act at all material times provided that: "Returns disclosing interests of councillors and designated persons (1) A councillor or designated person must complete and lodge with the general manager, within 3 months after becoming a councillor or designated person, a return in the form prescribed by the regulations. (1A) A person must not lodge a return that the person knows or ought reasonably to know is false or misleading in a material particular. … (3) A councillor or designated person holding that position at 30 June in any year must complete and lodge with the general manager within 3 months after that date a return in the form prescribed by the regulations. … (5) Nothing in this section prevents a councillor or designated person from lodging more than one return in any year. (6) Nothing in this section or the regulations requires a person to disclose in a return lodged under this section an interest of the person's spouse or de facto partner or a relative of the person. …".
In addition, s 459 of the Act provided as follows: "Disclosure of pecuniary interests when dealing with council matters (1) A designated person must disclose in writing to the general manager (or if the person is the general manager, to the council) the nature of any pecuniary interest the person has in any council matter with which the person is dealing. (1A) However, subsection (1) does not require a designated person who is a member of staff of the council to disclose such a pecuniary interest if the interest relates only to the person's salary as such a member of staff or to his or her other conditions of employment or the like. (2) The general manager must, on receiving a disclosure from a designated person, deal with the matter to which the disclosure relates or refer it to another person to deal with. (3) A disclosure by the general manager must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and the council must deal with the matter to which the disclosure relates or refer it to another person to deal with."
Section 442(1) of the Act defined a "pecuniary interest" as "an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person". This was qualified by subsection (2), which excluded from the definition interests "so remote or insignificant that [they] could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter" and interests "of a kind specified in section 448", which outlined a series of interests specifically excluded from disclosure.
Importantly, s 443 of the Act provided that: "(1) For the purposes of this Chapter, a person has a pecuniary interest in a matter if the pecuniary interest is the interest of: (a) the person, or (b) the person's spouse or de facto partner or a relative of the person, or a partner or employer of the person, or (c) a company or other body of which the person, or a nominee, partner or employer of the person, is a member. … (3) However, a person is not taken to have a pecuniary interest in a matter as referred to in subsection (1) (b) or (c): (a) if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or (b) just because the person is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or (c) just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body."
In addition to these statutory provisions, Mr Eldridge was subject at all material times to the Council's Code of Conduct and Conflict of Interests Policy.
The purpose of the Code is expressed as the provision of three-fold assistance to council officials: to understand the standards of conduct that are expected of them; to enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence (s 439 of the Act) (emphasis added); and to act in a way that enhances public confidence in the integrity of local government [CB 2/917].
The material provisions of the Code as at 2015-2017 were as follows: "4.1 A conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty. 4.2 You must avoid or appropriately manage any conflict of interests. The onus is on you to identify a conflict of interest and take the appropriate action to manage the conflict in favour of your public duty. 4.3 Any conflict of interest must be managed to uphold the probity of council decision-making. When considering whether or not you have a conflict of interests, it is always important to think about how others would view your situation. 4.4 Private interests can be of two types: pecuniary or non-pecuniary. What is a pecuniary interest? 4.5 A pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person. (section 442 [of the Act]) 4.6 A person will also be taken to have a pecuniary interest in a matter if that person's spouse or de facto partner or a relative of the person or a partner or employer of the person, or a company or other body of which the person, or a nominee, partner or employer of the person is a member, has a pecuniary interest in the matter. (section 443) 4.7 Pecuniary interests are regulated by Chapter 14, Part 2 of the [Act. The Act requires that: a. councillors and designated persons lodge an initial and an annual written disclosure of interests that could potentially be in conflict with their public or professional duties (section 449) b. councillors and members of council committees disclose an interest and the nature of that interest at a meeting, leave the meeting and be out of sight of the meeting and not participate in discussions or voting on the matter (section 451) c. designated persons immediately declare, in writing, any pecuniary interest. (section 459) 4.8 Designated persons are defined at section 441 of the Act, and include, but are not limited to, the general manager and other senior staff of the council. 4.9 Where you are a member of staff of council, other than a designated person (as defined by section 441), you must disclose in writing to your supervisor or the general manager, the nature of any pecuniary interest you have in a matter you are dealing with as soon as practicable. What are non-pecuniary interests? 4.10 Non-pecuniary interests are private or personal interests the council official has that do not amount to a pecuniary interest as defined in the Act. These commonly arise out of family, or personal relationships, or involvement in sporting, social or other cultural groups and associations and may include an interest of a financial nature. 4.11 The political views of a councillor do not constitute a private interest. Managing non-pecuniary conflicts of interest 4.12 Where you have a non-pecuniary interest that conflicts with your public duty, you must disclose the interest fully and in writing, even if the conflict is not significant. You must do this as soon as practicable. 4.13 If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes. This disclosure constitutes disclosure in writing for the purposes of clause 4.12. 4.14 How you manage a non-pecuniary conflict of interests will depend on whether or not it is significant. 4.15 As a general rule, a non-pecuniary conflict of interests will be significant where a matter does not raise a pecuniary interest but it involves: a. a relationship between a council official and another person that is particularly close, for example, parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person's spouse, current or former spouse or partner, de facto or other person living in the same household b. other relationships that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship c. an affiliation between the council official and an organisation, sporting body, club, corporation or association that is particularly strong. 4.16 If you are a council official, other than a member of staff of council, and you have disclosed that a significant non-pecuniary conflict of interests exists, you must manage it in one of two ways: a. remove the source of the conflict, by relinquishing or divesting the interest that creates the conflict, or reallocating the conflicting duties to another council official b. have no involvement in the matter, by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in section 451(2) of the Act apply. (emphasis in original).
Clause 7.12 of the Code provided: "You must use council resources ethically, effectively, efficiently and carefully in the course of your official duties, and must not use them for private purposes (except when supplied as part of a contract of employment) unless this use is lawfully authorised and proper payment is made where appropriate."
In addition to the Code, the Council had a "Conflict of Interests Policy" (the Policy), revision 4 of which (dated 26 August 2013) was in place throughout the relevant period of 2015-2017 [CB 2/935]. Under cross-examination, Mr Eldridge acknowledged this as an important document he had or would have read. Clause 1.4 of the Policy provided: "Chapter 14 of the Local Government Act 1993 covers honesty and disclosure of interests and states that: ● The pecuniary interests of councillors, council delegates and other persons involved in making decisions or giving advice on council matters must be publicly recorded ● Councillors and staff must not take part in decisions on council matters in which they have a pecuniary interest. Council's Code of Conduct and Code of Meeting Practice also provide direction on the declaration and management of Conflict of interests."
Clause 3.1.2 of the Policy, under the heading "General Manager", provided: "General Manager ● If the General Manager declares a conflict of interests in a matter then the Mayor should decide future participation by the General Manager at any time during which the matter is being considered or discussed or voted upon by Council or the Committee. ● Written notice of a conflict of interests must be given to the Mayor. Notice should be given on a Conflict of Interests Declaration Form. ● The General Manager must complete an annual Disclosure of Interest Return." (emphasis in original).
Clause 3.5 of the Policy provided: "Responsibility for Making a Disclosure If a person is unsure as to whether or not they have a conflict of interests, they should give full written details to the General Manager or the Mayor (as outlined in clause 3.1 above) or seek independent legal advice. The objective of notification is to protect both the individual and the Council. Neither the Mayor nor General Manager has a responsibility to provide a person with a determination on whether or not they have a conflict of interests in a matter. The responsibility to determine a conflict of interests rests solely with the individual as only that individual is aware of the grounds upon which a potential for a conflict of interests arises. It is prudent to err on the side of caution by declaring an interest and by not participation in discussion or in decision making if there is any doubt as to their interest in the matter."

[7]

Leave entitlements under the Standard Contract

Under the Standard Contract, leave entitlements were governed by cl 9 which provided for: (i) four weeks of paid annual leave; (ii) long service leave; (iii) three weeks of paid sick leave during each year of employment, accumulating from year to year; (iv) parental leave, including maternity leave, paternity leave and adoption leave; (v) carer's leave; (vi) concessional leave; and (vii) special leave, which was described as follows: "Council may grant special leave, with or without pay, to the employee for a period as determined by Council to cover any specific matter approved by Council."
At [73]-[74] of his affidavit, Mr Eldridge purported to recall saying to the selection panel for the position of General Manager (which included the then Mayor, Mr Kendall and Deputy Mayor Tout) that "the winding back of my various businesses' interest is likely to take a further twelve to eighteen months". He then claimed also to recall a conversation with Mr Kendall at this time on winding down personal business matters in words to the following effect: "Alan Eldridge: I need 8 weeks leave a year so I can work away from Council. I will need time because my business affairs are not simply disbanded. There will be a fair bit of work required to transition" Rod Kendall: That is fine. As long as you do your job, we have no issue with that, but you must make sure it does not interfere with your workload as GM."
At [76], Mr Eldridge then purported to recall a subsequent conversation with Mr Laurence Flack (Mr Flack) who was at that time the head of Human Resources at the Council. Mr Eldridge attributed to Mr Flack the following words in this conversation: "In relation to the eight weeks off to work out of the office and on sometimes on non-Council business, we can't put that into the contract. The contract is a standard contract under the Local Government Act and so I don't want to insert that condition. But while it isn't in your standard contract that is the agreement, there is no reason why you cannot take the time off as working from home."
Mr Eldridge swore in his affidavit (at [78]) that he: "proceeded on the basis of the agreement which had been reached notwithstanding that the express terms of [his] contract did not make reference to [his] ability to work on non-Council work."
Messrs Kendall and Tout both denied the conversation which was said to have occurred at the selection interview. Mr Kendall also denied that the conversation set out in [118] occurred. Mr Flack similarly denied the statement attributed to him by Mr Eldridge. [CB 1/292; T. 321-322]
For the reasons given in my findings in relation to credit (see from [334] below), I accept the various denials of Messrs Kendall, Tout and Flack. No written record of such a side agreement was produced (in contrast to some specially negotiated terms and conditions when Mr Eldridge was employed as General Manager).
Further, had Mr Eldridge in truth negotiated eight weeks effective leave and/or an entitlement to work on non-Council business out of the office, there would have been no need for him to create a false paper trail, as he did, in relation to a trip to Batemans Bay in July 2016. This episode is dealt with more fully at [320]-[326] below.

[9]

26 October 2015 Disclosure of Pecuniary Interest Returns

On 26 October 2015, within a short period after taking up his position as Acting General Manager, Mr Eldridge filed a document with Council described as an "Annual Disclosure of Pecuniary Interest Returns 2015". Under cross-examination, Mr Eldridge volunteered that although he signed the document, it had been filled out by someone else, either Ms White or his wife, Ms Barbara Eldridge (Mrs Eldridge) [T. 556-557].
The document required the disclosure of various categories of pecuniary interests, including: real property; sources of income; gifts; contributions to travel; interests and positions in corporations; positions in trade unions and professional/business associations; debts; and dispositions of property. It also allowed for "discretionary disclosures" in its final section.
Under the heading "Sources of Income", the document as completed disclosed Mr Eldridge's occupation as Director of "Eldridge Crawford Business & Accounting Services Pty Ltd" which was a member of the "Eldridge Group". Below the words "Eldridge Group" was a reference, in parentheses, to the following list of companies of which he was a director as at 26 October 2015 [CB 2/1145]: (i) Accredited Financial Services Pty Ltd; (ii) Australian Ingenious Business Services Pty Ltd; (iii) Australian Rural Accounting Solutions Pty Ltd; (iv) Eldridge Crawford Business & Accounting Services Pty Ltd; (v) Eldrotech Investments Pty Ltd; (vi) E & C Financial Investments Pty Ltd; (vii) RWEK Pty Ltd; (viii) Australian Insurance Network Pty Ltd; (ix) E Holdings Pty Ltd; (x) Propwash Pty Ltd; and (xi) Posthunt Pty Ltd.
Mr Eldridge did not fill out section (e) of the document, entitled "interests and positions in corporations". Other sections, including "gifts" and "contributions to travel", among others, were marked "nil". Under the heading "discretionary disclosures", Mr Eldridge stated the following: "I am the Managing Director of the Eldridge Group of Companies. These companies have a vast number of business interests within the region. However they do not have any business dealings with Wagga Wagga City Council."
There was no disclosure of or any reference to either E Properties or to the fact that he was financing his son's interest in the rezoning and development of the Inglewood Road Estate.

[10]

Policy and Strategy Committee Meeting of 14 March 2016

On 26 February 2016 at 2.45pm, Ms Belinda King (Ms King), a Governance Officer within the Council, sent to what was described as "Grp-E-Team", Business Papers and Separate Cover Attachments for the Policy and Strategy Committee and Supplementary Council meeting for 14 March 2016 [CB 2/1253]. This was said to be "for the E Team review of Reports meeting next Tuesday". Mr Eldridge was at the time within the recipients falling within the "Grp-E-Team" distribution channel. The last of the attachments to the email of 26 February 2016 was described as "Separate Cover Attachment - Combined - PSRP-4 - Planning Proposal - Inglewood Rd - Reduced.pdf".
The "review of Reports meeting" was evidently a meeting of senior Council staff to discuss and consider reports which were to go to meetings of the Council, no doubt to ensure that they were in a suitable form and that senior members of staff were across the detail of reports so as to be able to deal with questions from Councillors. Mr Eldridge's electronic diary for the "next Tuesday", 1 March 2016, blocked out a 90-minute period for this review of reports meeting. An inference arises that the report relating to the Inglewood Road Planning Proposal was discussed at this meeting.
On 4 March 2016 at 2.28pm, following the review of reports meeting held three days earlier, Mr Eldridge was sent an email by Ms King attaching the final business papers "for your review and approval" [CB 1959]. Multiple PDF documents were attached to this email. Ms King asked for Mr Eldridge's approval "by COB Tuesday" (i.e. by 8 March 2016), no doubt so that papers could be distributed to members of the Policy and Strategy Committee meeting in advance of the Supplementary Council meeting of 14 March 2016.
The agenda contained in the attachments sent to Mr Eldridge referred to some 13 Policy and Strategy Reports (PSRP) "from staff". The document now numbered PSRP-5 was headed "Planning Proposals for land at Inglewood Road Gumly Gumly and 77 Old Narrandera Road, Gobbagombalin" and related to two separate applications which had been made to Council. Mr David McDonald (Mr McDonald) was identified as the author of PSRP-5 and Ms Liz Rankin (Ms Rankin) was identified as the Manager responsible for the Report. Ms Rankin was a member of the Council's planning staff. The recommendation contained in PSRP-5 was as follows [CB 4/2541]: "That Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until a residential strategy is complete."
The final page of PSRP-5 contained a heading "Attachments". Six attachments were listed as "provided under separate cover". The first of these was the application to amend the LEP in relation to Inglewood Road, Gumly Gumly. This is the document which has already been referred to at [85] above and which may be inferred was the Planning Proposal referred to in the Inglewood Road Estate minutes of 22 September 2015: see [88] above.
The fifth attachment referred to on the Council Business Paper was headed "Inglewood Road - Opteon Supply and Demand Study" (the Supply and Demand Study). This attachment was of some significance to the case as it was the reference to Mr Joshua Eldridge in this document that Councillor Hayes was to draw to Mayor Conkey's attention on 21 February 2017, prompting the standing down of Mr Eldridge pending an investigation: see [244] below. The Supply and Demand Study was dated 28 January 2016. Section 1.0 of the Study recited that "[i]nstructions have been received to undertake a rural-residential vacant land and supply study at Wagga Wagga." The "Instructing Party" was identified as "Joshua Eldridge, Eldridge First National Real Estate" with the date of instructions being 9 December 2015. The "Client/Authorised Party" was identified as "Inglewood Estate Pty Ltd". This was a mistake. The relevant company for which it had been prepared was Inglewood Estate Wagga Pty Ltd.
Mr Kell had originally forwarded a copy of this study to Mr McDonald of the Council's Planning Department on 29 January 2016 by an email in which Mr Joshua Eldridge (but not Mr Eldridge) was copied. [CB 4/2528]
Interpolating here, Mr Joshua Eldridge, as has already been noted, was Mr Eldridge's son. In his evidence, Mr Eldridge accepted that he had a close father son relationship with Joshua, and also that, prior to his appointment as Acting General Manager of the Council, he had a close business relationship with him. There was in evidence at least one email exchange between Mr Eldridge and his son during Mr Eldridge's tenure as General Manager, in which Mr Joshua Eldridge sought guidance from his father as to aspects of a particular transaction for the sale of a property, in which Mr Eldridge was agent for the vendor. Mr Joshua Eldridge requested that his father read a draft letter of offer and advise whether the sale price was inclusive of GST, and whether there was "anything [he] should include or exclude" [CB 5/3751-3752]. The email was initially sent by Mr Joshua Eldridge to his father's Eldridge Group email address and was subsequently forwarded by Mr Eldridge to his Council address. This exchange was not the subject of any specific complaint in the matter but does highlight what one would expect, namely that Mr Eldridge and his son had a close relationship which extended to the latter seeking advice from his father even after his father had taken up his role as General Manager of the Council.
There was no reference to Mr Joshua Eldridge or First National Real Estate Eldridge in PSRP-5 other than in the Supply and Demand Study which was an attachment to PSRP-5.
On 8 March 2016 at 10.55am, Mr Eldridge emailed Ms King saying "I am fine with the meeting papers as presented" [CB 3/2522].
On 10 March 2016, Mr Kell emailed Ms Crystal Golden (Ms Golden) and Ms Rankin, referring to "our discussion" and expressing concern that there were inconsistencies in the Report Proposal for Council for the 14 March 2016 meeting. The email attached a letter which was addressed to Mr Eldridge in his capacity as General Manager but was marked for the attention of Ms Golden. The letter [CB 4/2530] stated that the Report Proposal for the Councillors did "not portray the latest correspondence with Council" and was misleading to the Councillors. The following actions were requested: "1. Could a memo be provided to the Councillors, which indicates the recommendation on page 51 is an error? 2. Furthermore, should the Councillors adopt a deferral we request that Council provide a timeline for the completion of the Residential Study?" Mr Joshua Eldridge was "cc'd" on this email. The reference to page 51 was a reference to the page number in the Council Business Papers dealing with the Inglewood Road application. Those papers must have been publicly available to Mr Kell by that time or else had been provided to him.
Ms Golden responded on 11 March 2016 acknowledging "the confusion in the [Council's] report" [CB 4/2537]. The letter continued: "Council confirms the previous advice that the report recommends a 'deferred consideration' of your application for rezoning to enable Council to undertake a Residential Study for Wagga Wagga City that considers all forms of residential development. The studies and information you have provided will assist Council during this process. This is not a refusal of your application; it is a deferral to enable a key strategy to be completed prior to consideration. I can confirm that Council is committed to completing the Residential Strategy as per the recommendations of the Wagga Wagga Spatial Plan 2013-2043 and you will be included on the stakeholder contact list and kept informed as it progresses. As part of this, you will be contacted when timeframes for the project are known. The General Manager will be made aware of the issue prior to the meeting to ensure questions can be adequately addressed at the meeting." (emphasis added)
The response from Ms Golden was not copied to Mr Eldridge. Further, the relevant documentary evidence did not establish whether Mr Eldridge in fact saw the response, or the letter addressed to him by Mr Tristan Kell on 10 March 2016. However, Mr Eldridge accepted under cross-examination that "it would have been strange for a senior Council officer to say that he or she would make the General Manager aware of something prior to a meeting but not in fact to do so" [T. 475.21].
The Policy and Strategy Committee met on 14 March 2016. Nine Councillors were in attendance together with a large number of Council staff including Mr Eldridge. The minutes of that meeting record the deferral recommendation contained in PSRP-5 (see [133] above) was passed with Councillor Funnell opposing the motion [CB 4/2541]. Prior to that resolution having been passed, however, there had been a "Public Discussion Forum" on the subject of PSRP-5 followed by a procedural motion changing the standing orders to bring forward consideration of PSRP-5. Mr Eldridge accepted that he was present during this forum [T. 469.33] [CB 4/2540].
The minutes do not record that Mr Eldridge declared any interest in the Planning Proposal relating to Inglewood Road or that he absented himself from any discussion of it by the Committee or in the Public Forum. The meeting procedure, as reflected in the minutes, made specific provision for the making of any declarations of any interest to be recorded. None were.
Notes of the discussion of PSRP-5 at this meeting were taken by Ms Janice Summerhayes (Ms Summerhayes), the Council's Director of Environment and Community Services. It is necessary to set out those notes in full [CB 4/2588], noting that the emphasis added by underlining is mine: "POLICY AND STRATEGY- MARCH 2016 PSRP - 5 Planning Proposals for Land at Inglewood Road Gumly Gumly and 77 Old Narrandera Road and 17 River Road Gobbagombalin ● Cr Funnell to General Manager - What timeframe can you see the plans can be delivered. General Manger - Difficult to confirm exactly I am working with staff to determine a timeframe. We are setting up a taskforce to evaluate planning deficiencies and a suitable timeframe to address planning matters that have occurred in recent items. I have put forward 12 months we will see, there are statutory requirements and work with developers. There are issues on poor infrastructure or poor infrastructure around projects that we need to address. Ambitious aim is for 12 months. ● Follow up Cr Funnell - Referenced Old Narrandera Road issues. Given a 12 month timeframe is not certain at least through the gateway the applicant will have surety. General Manager - we will aim for 12 months, not certain we will achieve this but we will do or best, we need to be strategic and what is suitable for the City. There is a process we need to adhere to and we will work as fast and hard as we can, we are at risk of poor planning if we don't. ● Cr Kendall - Do you know the historic timeframe on Gateway proposals? Colby Farmer- General time 12 months, gazetted. ● Cr Conkey - Is the strategic planning process something that can be outsourced to speed up process. General Manager - The Task Force will include some outsourcing. Will work with experts at times. We will control centrally and outsource skills. ● Cr Funnell - Can't support this recommendation as there is no guarantee for 12 months, it's not the General Manager fault, this is not a kicking. The applicant is impacted by neighbour development, given impacts and affects we (Council) could be liable and I would have thought we would give this priority and be proactive to reduce our liability and fend off affects so this becomes a win win situation. There are severe impacts. We could be having this conversation in 18 months. We have a better chance through supporting the planning proposal. A lot of Councillors and community have been saying this. What is the ramifications of this recommendation not being carried asked Cr Poynter? referred to General Manager. General Manager explained he understood the frustrations of developers and we are working with them to plan for the City holistically. ● Cr Hiscock - Any prior discussion with developers and task force? General Manager - In my view there is certainly work to be done to these proposals to ensure sound planning and infrastructure provision. ● Cr Kendall - to the motion. He understands the frustration by the community and the promise that the LEP would be renewed every 5 years and should have concluded late last year. In approving the Spatial Plan Council recognised certain studies needed to be done and including the residential demand study, not yet started and this is essential to have in place as part of holistic planning. We need to understand the General Manager has taken this on as a priority and this is a better approach and can the General Manager give real assurances on timelines eg LEP ready and submission to Department of Planning, to start holistic planning and have this completed so that all proposals can come before Council. It is also important Councillors understand that Gateway approval does not mean that this approves rezoning, it is best to deal with this holistically. ● Cr Funnell - How many Gateway proposals have been rejected in the last 10 years? Colby Farmer - I do not have the figures to hand but my understanding is not many. ● Cr Brown - will support motion in confidence in the current leadership. General Manager is on notice to deliver on this and progress. ● Cr Conkey will support but have some concerns on delays but need proper planning processes and if this needs to be outsourced to complete then supports that approach. ● Cr Funnell - What happens if we don't deliver. General Manager - we can only guarantee we will work with developers and processes as expedient as we can. We have to do it right. ● Cr Tout - Is part of the next 12 months to include Master Plans and Precinct planning? Colby Farmer - Existing ones to be looked at. I will support but concerned Management Plans sites are in isolation need to pull them together to address the bigger issues. I would like a follow up on the precinct planning to understand how this will take shape. General Man[a]ger - to provide more information. General Manager explained that we will look at the holistic view on how it all fits and how the integrated transport study fits, industrial planning etc. Best urban design and requirements. Assumptions will be determined on best information available, there is a matter of urgency to consider strategic growth, and the infrastructure challenge to support such. Carefully look at how we are planning the city as a place for our citizens. ● Cr Funnell - Given I'm choosing to deal with this in isolation wouldn't you say this is possible as we have dealt with most of the issues eg sewer pump. General Manager -there are a number of engineering issues with conflicting advice and we are working through them they are not all dealt with."
It is plain from these notes that the Inglewood Road Planning Proposal formed part of this discussion which, it is to be inferred from the length of Ms Summerhayes' notes occupied a not insubstantial period of time. It is also clear that Mr Eldridge must have been aware of both of the Planning Proposals that were the subject of the extended discussion. It is also relevant to note that the essence of the discussion focussed on the speed with which proposals, such as the two the subject of the public forum discussion, could be progressed.

[11]

Events following 14 March 2016 Policy and Strategy Committee Meeting

On 16 March 2016, Ms Rankin sent an email to Mr Eldridge following up on comments made by Councillors at the 14 March 2016 meeting in relation to the urgent need to review the LEP to rezone more land for residential purposes. Ms Rankin wrote [CB 4/2591]: "In reflecting on the comments made by councillors at the meeting on Monday night regarding the urgent need to review the LEP (to rezone more land for residential purposes). I put the attached key points down which I hope are useful for guiding future conversations. If you would like me to have a chat with Clr Funnell I am happy to do so as he missed the retreat presentation. Of importance is that in putting a planning proposal forward it needs to comply with the Ministers 117 directions. You will not get the minister to support any residential rezoning unless it is supported by strategy. I have included an excerpt in the attached from the 117 directions for your information. Further the Department has told us that as a policy position it will not support rezoning for large lot subdivisions (e.g. RU4 or R5) unless councils have really good sound strategic grounds for doing so. Further to anything the city does not have a residential land supply crisis. If we do not rezone more land for residential purposes in the next 12 months or so the city is not going to fall apart! …".
The "Key Points" which Ms Rankin attached to this email included the following summary (with my underlining added): "● Council adopted Spatial Plan in November 2013 ● Council promised via the Spatial Plan to deal with a range of strategic issues related to housing and residential development by November 2018. ● The residential issues for the city are bigger than the needs of the handful of people (such as Day and the Inglewood Road people) to rezone. ● There are issues with the provision of social infrastructure as well as the physical infrastructure as well as housing affordability, housing choice and neighbourhood design. (NOT SUPPLY). ● There is no land supply crisis for the city that needs to be resolved in the next 12 months. We have over 4000 lots zoned for gen residential, approximately 12-15 years supply at current takes up rates and we have analysis to demonstrate this!!! ● If we do not rezone land for residential purposes in the next 12 months the city will not be compromised. ● The Minister for planning will not support a Gateway if there is no sound strategic basis for the rezoning - see 117 direction attached."
After this summary, Ms Rankin stated in bold with underlining that: "Not sure how many times I can say land supply is not a crisis issue!" She followed this by elaborating on her "key points" including by stating that "[t]here is more of a risk if we rezone more land without proper planning as we will be exacerbating existing planning and infrastructure problems." Plainly Ms Rankin was of the view that there was no particular urgency for rezoning and that the Department of Planning had requirements or ministerial guidelines that needed to be adhered to. She made the explicit point that "if we do not rezone land for residential purposes in the next 12 months the city will not be compromised."
On 16 March 2016, Mr Eldridge forwarded the email (including its attachment) that he had received from Ms Rankin to Mr Conkey (although the email begins "Hi Rod", presumably a reference to then Mayor Kendall) stating, "please see the attached. I am not sure I agree. In confidence we need to have a chat" [CB 4/2591]. In cross-examination, Mr Eldridge sought to cast some doubt on this email [T. 467]: "Q: Then you responded to this email by forwarding it to Councillor Greg Conkey ‑ that's at the top of 2591 - 'see the attached, I'm not sure I agree, in confidence we need to have a chat'; do you see that? A: It's interesting, isn't it, because it says, "hi Rod". Q: Indeed, and Rod was the mayor at the time, Rod Kendall? A: Yeah, now it says Councillor Conkey which is not the mayor's email. Q: Yes. A: I don't understand the document. Q: Well, it's a document‑‑ A: I question its validity. Q: -- you sent. A: Well it's strange."
In the course of April 2016, Ms Rankin had been in touch with the New South Wales Department of Planning to elicit the Department's views in relation to the rezoning of land for large lot residential purposes, knowing that Council had two requests before it to rezone land for R5 usage [CB 4/2599].
The response from the Department was that its advice continued to be: "that any new rural residential area should be strategically justified (including a demand and supply analysis) preferably not on case by case basis, however it will be up to Council to determine how it intends to proceed. When any new residential area is proposed for zoning outside of an agreed strategic framework, the Department requires considerable up-front investigation and justification to address a range of issues … It would be expected that these issues would be satisfactorily addressed in a planning proposal or as a separate study supporting a planning proposal."
Ms Rankin forwarded this Departmental advice to Mr Eldridge on 15 April 2016 noting that she had "asked the question in relation to the proposals for Fleming and Inglewood road" [CB 4/2597]. Whether or not she had done so at Mr Eldridge's request, she certainly informed him of it.
Mr Eldridge responded the following day, observing that "[T]he advice from the Department seems a bit all over the shop to me, when you look at [it] from a policy prospective [sic]. Let's discuss it next week."
It is at this point in the chronology that Mr Eldridge was formally appointed General Manager of the Council on a permanent basis.

[12]

Mr Eldridge's appointment as General Manager on a permanent basis

In March 2016, Mr Eldridge had made a formal application to be appointed to the position of General Manager of the Council on a permanent basis. In his written application, Mr Eldridge addressed the topic of corporate governance, writing [CB 1/379]: "Prior to my current appointment as General Manager of the City of Wagga Wagga, I had held company directorships for over 70 private companies and had been appointed director to some 30 non-government organisations; I have also sat on at least five boards of fully or part-government owned entities. … The significant number of board appointments that I have held has required that I demonstrated detailed understanding of governance and affirms my commitment to the principles of good corporate governance at many levels … I was directly involved with 11 shire councils and conducted work in the area of governance for the City of Brisbane. Other areas in relation to governance included when I provided corporate governance training to the newly appointed CEO, councillors and senior staff."
On 21 April 2016, following an extraordinary general meeting of the Council earlier the same day, Mr Eldridge received a formal offer of employment as General Manager on a "4 Year Performance Based Contract" for a total annual remuneration of $395,808.00. This offer was contained in a letter from then Mayor Kendall. The letter of offer stated: "Terms and conditions of employment are as per the Local Government Act 1993, the Office of Local Government 'Standard Contract of Employment - General Managers of Local Council's [sic] in New South Wales', and the other relevant employment legislation. The Employment Contract will be outlined in a 4 year performance based contract which will be provided under a separate cover. Supplementary employment conditions: ● Your spouse to travel at Council cost on formal council engagements as approved by the Mayor; ● Business Class travel for flights over one (1) hour; ● The discretion to incur credit card expenses of a discretionary nature (business related purposes only) and subject to Mayoral approval; and ● The provision of training and memberships applicable to Council subject to Mayoral approval."
The same letter stated, under the sub-heading "Mandatory Corporate Training" that: "You will be required to complete Council's mandatory Corporate Induction, Work Health & Safety and Code of Conduct Training via E-Learning. The People & Culture Division will contact you to arrange times for the completion of these." Under cross-examination, Mr Eldridge accepted that he did not in fact undertake this training including the Code of Conduct training.
Mr Eldridge countersigned the letter of offer on 21 April 2016, thereby agreeing to its terms.
Mr Eldridge's formal appointment as General Manager of the Council was effected by the execution of a Standard Contract of Employment between the parties on 22 April 2016, which constituted a "senior staff" contract for the purposes of s 338(1) of the Act and governed Mr Eldridge's employment for the duration of his term as General Manager (cl 4.1).

[13]

May 2016 Policy and Strategy Committee and Supplementary Council meeting

Picking up the narrative of events within the Council concerning the Inglewood Road Planning Proposal, on 29 April 2016, Ms King sent Mr Eldridge an email in which Mr Scott Gray (Mr Gray), Manager of Executive Support, was copied seeking review and approval of the business papers for the 9 May 2016 Policy and Strategy Committee and Supplementary Council meeting. The agenda for the Supplementary Council meeting of 9 May referred to and attached two reports from staff for the Councillors' consideration. The first report, described as RP-1, was entitled "Planning Proposals for land at Inglewood Road, Gumly Gumly and 77 Old Narrandera Road and 17 River Road, Gobbagombalin."
RP-1 which formed part of the papers forwarded to Mr Eldridge for his approval showed as its author David McDonald who had authored PSRP-5 which had been before the previous meeting but, unlike that earlier report, Ms Rankin was no longer shown as the Manager responsible for the report; rather, Mr Eldridge's name as General Manager appeared. The format adopted in this report, similar to the format adopted in prior reports, was that the Council officer named immediately after the author took responsibility for the contents of the report.
RP-1 contained the following relevant recommendation [CB 4/2801]: "That Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until a residential strategy is complete." (emphasis added)
It may be seen that the formulation of this recommendation was in line with the views of Ms Rankin expressed in her key point document and in line with the advice she had received from the Department (at [152] above).
RP-1 noted that the Council had received two applications to amend the Wagga Wagga LEP including for Inglewood Road, Gumly Gumly. The report noted that: "Pre-lodgement meetings were held with both applicants and advice was provided in line with the WWSP [Wagga Wagga Spatial Plan] recommendations, to await the outcomes of any further strategic planning before submitting an application to Council. As a reminder to Council, it is proposed that Council prepare an integrated strategy for the City that provides direction for the future location, and timing of new residential growth and the requirement for social and community infrastructure."
On 3 May 2016, Mr Eldridge replied to Ms King by email, with Mr Gray copied in, notifying that he was "fine with the paper" [CB 4/3196]. Later that day, however, Mr Eldridge's Executive Assistant, Ms Carmel Posselt (Ms Posselt), sent an email to Mr Gray, Ms Rankin, Ms King and a Ms Julie Earles (Ms Earles) asking "can you please take this report out of the next Monday's meeting papers and put it into the Council Meeting for the 30 May 2016".
On 17 May 2016, a review of reports meeting for the May Council meeting was held. Mr Eldridge's diary records him as attending with an entry prior to the meeting for reading of the reports. The meeting was scheduled for 90 minutes.
After the meeting, Ms Rankin emailed Mr Eldridge and others on the subject of Inglewood Road and Day Planning Proposals (Day being a reference to the application in relation to Old Narrandera Road), referring to a conversation at the review of papers meeting held that morning and noting that the proponents of the two planning proposals could request a pre-gateway review. Ms Rankin noted that [CB 4/3211]: "We have kept both parties informed of the deferment of consideration of the request and neither party has advised technical officers of their intent to seek a pre-gateway review. (At this stage). We have also advised the Department of the proposals and advised that whilst our recommendation is to defer consideration it may not be agreed to by Council." This email provoked a short observation by Mr Eldridge to Mr Gray on the following morning that he had "a number of issues with this", referring to Ms Rankin's email. The first issue which he noted was expressed as follows: "Why is Liz [Rankin] talking to the Department about these matters or in fact about any planning proposal at [all]."
The discussion of the Inglewood Road Report at the report review meeting on 17 May 2016 resulted in a number of changes to the draft report to be sent to the Council. These were noted in Ms Rankin's email of 1.41pm on 18 May 2016 to Ms Earles, Mr Gray and Ms Wallace (Ms Wallace). The email was headed "Authorisation of Inglewood road report". Ms Rankin, who was not called to give evidence, stated that: "Alan cannot be the authoriser of this report due to conflict of interest. As the new author I also cannot authorise. Can you please determine what happens now and what I need to do."
Mr Gray, in an email to Ms Earles, Ms King, Ms Johnson and copied to Ms Rankin, amongst others responded: "after discussing with Nic, Liz should be the author of the report and governance will remove the Director." In other words, the draft report which had been authored in the form that it was originally presented to Mr Eldridge by Mr McDonald and which identified Mr Eldridge as the responsible Council officer was altered to identify Ms Rankin as the author with no Council officer at or above director level being identified as taking responsibility for the report. Significantly, Mr Eldridge's name was removed from it.
What is significant about this interchange of emails is that Ms Rankin at least recognised and articulated the fact that Mr Eldridge had a conflict of interest in relation to the Inglewood Road Planning Proposal and that she shared this view with a number of her colleagues. None of this, however, was evidently known to any member of the Council. Nor is it clear that Council staff had raised any conflict with Mr Eldridge or just deduced it from the reference to Mr Joshua Eldridge in the Supply and Demand Study.
On 20 May 2016, Ms King (in her capacity as a member of the Council's Governance and Risk staff) sent an email to Mr Eldridge, with Mr Gray copied in, seeking approval for the final draft business papers for the 30 May 2016 Council meeting. One of the attachments to this email was titled "Separate Cover Attachment - Combined - PSRP - 10 - Planning Proposal - Inglewood Road". This Report was similar to RP-1 that was to have been submitted to the 9 May 2016 meeting but Mr Eldridge's name had been removed from it. PRSP-10 contained the same recommendation as had RP-1, namely: "That Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until a residential strategy is complete."
On 24 May 2016, Mr Gray emailed Ms King and Mr Eldridge as follows [CB 5/2461]: "Alan has approved the business papers subject to the following changes: … RP:10: • Update the recommendation to be: That Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until the relevant strategic work is completed by the Planning Task Force."
The significance of this change of wording requires a little explanation.
The Planning Task Force was a body conceived of by Mr Eldridge to fast track and overhaul the City of Wagga Wagga's planning framework with an aim, amongst others, to target a timeframe of 18 months for the adoption of all plans. Indeed, a recommendation endorsing the scope of work and timelines of the Planning Task Force was to be put to Council at the same meeting as RP-10. The recommendation was contained in RP-9, the report that preceded RP-10. The contemplated timeframes for completion of the "relevant strategic work" by the Planning Task Force were certainly much shorter than would or may otherwise have been the case, especially given the lack of a need of any urgency for further urban development as had been expressed by Ms Rankin in her key points document sent by email on 16 March 2016: see [148]-[149] above.
On 30 May 2016, Mr Eldridge attended the Council meeting during which the Inglewood Road Planning Proposal was discussed. He did not declare any interest in the course of this meeting. RP-10, as presented to the Council at this meeting, contained a number of attachments including the Supply and Demand Study for which the Instructing Party was noted as "Joshua Eldridge, Eldridge First National Real Estate", and reports by GHD, ARTL and AE Design. These reports were the same reports as had been referred to or contemplated in the Inglewood Road Estate meeting of 22 September 2015 (see [88] above).
At the 30 May 2016 meeting, the Council resolved (by way of motion passed by a majority of 7:2), in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, to "defer consideration of land identified as potential urban land and potential intensification until the relevant strategic work is completed by the Planning Task Force". This resolution was in the terms that Mr Eldridge had rewritten.
A proposed amendment to this motion which sought to allow the Council to "proceed with the gateway application process for … Inglewood Road, Gumly Gumly" prior to the completion of the Planning Task Force's strategic work was defeated prior to the final vote.
Mr Gray sent an email to Mr Eldridge during the course of the Council meeting, informing him (in the subject line) that the strategic work for the taskforce would take a total of 18 months to complete [CB 5/3495]. Mr Eldridge responded by stating that "[w]e need to ensure that Liz [Rankin] stays out of this" and "[d]efinitely not to talk to the department".
Later in the course of the Council meeting on 30 May 2016, Mr Gray sent another email to Mr Eldridge notifying him that: "we don't have any town planners here. I am not expecting any questions for them from the P&S papers but just giving you a heads up." Mr Eldridge's response stated that "[w]e need to take control of the planning staff and get Colby [Farmer] out of it". The Colby Farmer referred to in Mr Eldridge's response was a senior member of the Council's strategic planning and development staff although whether or not he had anything to do with the Inglewood Road Planning Proposal was not clear on the evidence. He was, however, a participant in the Public Forum Discussion of 14 March 2016, being expressly referred to in Ms Summerhayes' notes of the meeting: see [145] above.
On 6 June 2016, Ms Rankin sent Mr Eldridge an email, in which Mr Gray was copied, concerning certain letters to Mr Phil Day, Mr Garry Salvestro and Mr Kell regarding their planning proposals before the Council. (Messrs Day and Salvestro were involved with the Old Narrandera Road Proposal). Three days later, on 9 June 2016, a letter signed by Mr Eldridge was sent to Mr Kell concerning the Inglewood Road Planning Proposal. The letter read as follows [CB 5/3499]: "Dear Tristan Re: Local Environmental Plan Amendment Application, Inglewood Road, Gumly Gumly Further to Council's letter dated 11 March 2016, please be advised that at the Ordinary Council meeting held on Monday, 30 May 2016, it was resolved, that Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until the relevant strategic work is completed by the Planning Task Force. As a result of the recommendation, your application will be further considered by Council as part of the abovementioned strategic planning work. This will enable Council to undertake a Residential Study for Wagga Wagga City that considers all forms of residential development. The target timeframe is 18 months for adoption of all plans. It is important to note that the total timeframe is inclusive of the LEP which is dependent on the Department of Planning and Environment (DPE). Advice from the DPE is that Council should allow at least 12 months for the review and approval of the LEP. To ensure you are included in the development of the Residential Study, you have been included on the stakeholder contact list and will be kept informed as to the Residential Study progresses. If you require any further information, please contact Liz Rankin, Manager Strategic Planning … Yours sincerely Alan Eldridge General Manager"
In cross-examination, the following exchange occurred in relation to this letter ([T 505]): "Q: Mr Eldridge, if you had signed the letter of on 9 June 2016 that appears at 3499 of the Court book, you accept do you not that you would have then clearly had notice that a proposal had been made to the Council in respect of the Inglewood Road Gumly Gumly property with which your son was associated. A: If I read that letter I believe I would. Q: Do you seriously tell his Honour that as general manager of the Council having been requested whether the letter should come from you or staff and with your signature on the letter, do you seriously tell his Honour that you didn't read the letter? A: Can you repeat the question please? Q: Do you seriously ‑ I'll go back a step. Do you see that in the email that was sent to you at 3496 you were asked about who the formal response should go to, Tristan Kell and Garry Salvestro, should it go from the general manager, meaning yourself, or us, meaning planning staff. Do you see you were asked that question? A: So I note in that question ‑ I note in that email it says, 'hi'. Q: Yes. A: The staff don't write to executives with 'hi'. If it was coming to me it would be 'dear Alan' or something. I wouldn't accept a letter like hi. Q: You wouldn't? A: Generally not ‑ I don't even recall seeing that and I don't recall seeing that letter, sir." This was a good example of Mr Eldridge trying to distance himself from a letter that was impossible to reconcile with his claim to have been unaware of the Inglewood Road Planning Proposal whilst he was General Manager of the Council, and to cast doubt on the likelihood of him having received it.
On 18 July 2016, Ms Rankin emailed Mr Joshua Eldridge on the subject "Inglewood Road land" as follows [CB 5/3501]: "Apologies for not responding earlier however I was away towards the end of last week. In response to your email last week I have scheduled a catch up for tomorrow. I will find us a meeting room with a phone, so we can call Tristan Kell. I have also invited Serena Wallace to the meeting. Serena is heading up the council's Planning Review Taskforce which is overseeing current strategic work and ultimately review of the LEP. Please let me know if this still suits you." The "email [of] last week" was not in evidence.
On 19 July 2016, a meeting was arranged between Ms Rankin, Ms Wallace and Mr Joshua Eldridge concerning the Inglewood Road Planning Proposal. By email sent on the morning of the meeting, Mr Gray advised Ms Wallace, who was the Chair of the Council's "Planning Review Taskforce", that he would not be attending as it would raise a perceived conflict of interest: "Serena Are you attending this meeting? I thought Liz [Rankin] was told to stop these meetings to concentrate on the WWITS. I won't be attending given the meeting is with the GM's son. As I work directly with the GM there could be a perceived conflict."
Mr Gray, who worked closely with Mr Eldridge, was evidently very conscious of concerns regarding a conflict of interest. He developed concerns about Mr Eldridge himself, recording some months later in a "Note to File" of 10 November 2016 that [CB 5/3765]: "● Had an interesting conversation with Alan [Eldridge] today ● We were talking about him having to sign some paperwork for Josh [Eldridge] ● He made a statement that Josh [Eldridge] will be a pretty big player in town ● He stated that he has nothing to do with it ● I am logging this due to my suspicions as to why Alan is in this position ● I believe a lot of the work we are doing in the taskforce etc will result in a financial benefit for the Eldridge family".

[14]

Key Management Personnel Declaration - 25 July 2016

On 7 July 2016, Mr Eldridge received an email from Ms Carolyn Rodney (Ms Rodney), the Council's Finance Manager, following up on Mr Eldridge's "Key Management Personnel Declaration 2016", which was required by the Council's external auditors to have been submitted by 1 July 2016 [CB 5/3700A].
Ms Rodney's email was marked with "high" importance and attached two documents: first, a blank "Declaration by Key Management Personnel" (KMP) form [CB 5/3700B], annexed to which was a diagram prepared by the New South Wales Office of Local Government outlining "who is a related party" [CB 5/3700E]; and secondly, an example KMP form demonstrating how it was to be filled out [CB 5/3700F]. In the email, she noted that "Council's external auditors require that declarations to be in place from 1/7/2016 and asked Mr Eldridge to advise as to when she could expect to receive the declaration back. Ms Rodney followed this request up with a further request on 25 July 2016 [CB 3711A].
On 25 July 2016, Mr Eldridge completed a KMP form on the letterhead of Wagga Wagga City Council. That form required Mr Eldridge to "list details of known close family members, entities that are controlled/jointly controlled by KMP and entitles that are controlled/jointly controlled by the close family members of KMP."
The KMP form contained the following declaration executed by Mr Eldridge [CB 5/3713]: "I, Alan Lee Eldridge declare that the above list includes all my close family members and the entities controlled, or jointly controlled by myself or my close family members. I make this declaration after reading the information supplied by Council which details the meaning of the words 'close family members' and entities controlled, or jointly controlled, by myself or my close family members. I also declare that if any circumstances change throughout the year in relation to the above, that I am to contact Council within 30 days and complete an amended declaration."
Mr Joshua Eldridge was listed on this form as a close family member. No reference was made to either Inglewood Estate Wagga Pty Ltd or to E Properties.

[15]

30 September 2016 Disclosure of Pecuniary Interest Returns

On 29 July 2016, Mr Neil McDermott (Mr McDermott), the Council's then Senior Governance Officer, emailed various staff including Mr Eldridge noting that s 449 of the Act required Councillors and designated persons to complete an annual disclosure of pecuniary interest return for the year ending 30 June. He noted that at some time after 5 August 2016, all relevant documentation (including the Department of Local Government Guidelines) would be distributed to designated persons for completion and further noted that it was important that the forms be lodged correctly and in accordance with the due date set down by the Act.
On 9 August 2016, Mr Eldridge received a memorandum from Mr Craig Richardson (Mr Richardson), the Council's Acting Chief Financial Officer. This memorandum provided that [CB 5/3842A]: "As you have been identified as a Designated Person, it is important that you complete the attached form and that the form be lodged correctly and in accordance with the Act. I would request that the Form be completed and returned to Council's Senior Governance Officer, Neil McDermott by no later than 5.00pm on Monday, 29 August 2016." (emphasis in original)
On 26 August 2016, Mr Eldridge received a reminder, circulated by Mr Richardson to "Designated Staff", to complete his "Disclosure by Councillors and Designated Staff Return" form. This reminder read as follows [CB 5/3842P]: "On 5 August 2016, I forwarded to you a Disclosure by Councillors and Designated Staff Return form for completion. This is a reminder that completion of the Return is due by Monday, 29 August 2016 and this is a mandatory requirement. A report on the completion or otherwise, of all Returns by Councillors and Designated Staff will be presented to the October 2016 Council Meeting. The Register containing all completed Returns must be tabled at that meeting and be available for public access. … Completed forms should be returned to Council's Senior Governance Officer, Neil McDermott, as soon as possible. Please do not hesitate to contact myself, should you wish to discuss this matter or anything associated with the completion of the Return." (emphasis in original)
According to a file note prepared by Mr Gray, in both September and early October 2016, Ms Posselt undertook to Mr McDermott that she would remind Mr Eldridge of the need to complete the return [CB 5/3841]. According to the same file note, in late October 2016, following a further reminder by Mr McDermott to Mr Gray in relation to Mr Eldridge's return, Mr Gray undertook to discuss it with Mr Eldridge. This follow up was repeated through Mr Gray in early November 2016.
In the meantime, on 25 October 2016, Mr Eldridge approved a draft report for submission to the ordinary meeting of Council on 31 October 2016. The draft report identified Mr Eldridge as the Director responsible for the Report. The draft report stated [CB 5/3763-3764]: "Each year, Councillors and Designated Staff are required under Section 449 of the Local Government Act 1993 (the Act) to complete an annual Disclosure of Pecuniary Interest Return. … The last day for lodgement of the current Declarations of Pecuniary Interest Returns was 30 September 2016. Returns were received from 10 Councillors of the previous Council and all Designated Persons as required under the Act. Accordingly, Council's register is submitted to this meeting of council in accordance with the Act." (emphasis added).
Mr Eldridge fell within the description of a "designated person", as he accepted in his evidence, but had not, as of 25 October 2016 or indeed 31 October 2016, completed his own Disclosure of Pecuniary Interests Return, despite numerous requests to do so.
On 31 October 2016, Mr Eldridge was present when the Report of Pecuniary Interest Returns was tabled in the Council meeting. Mr Eldridge did not draw Council's attention to the fact that he had not completed a Declaration of Pecuniary Interests Return himself.
On 22 November 2016, Mr Gray received an email from Mr McDermott, alerting him to the fact that Mr Eldridge's disclosure form remained outstanding and overdue. Mr Gray responded that evening assuring Mr McDermott that he would "make sure he gets this done in the next week" [CB 5/3785A]. Mr Gray also promptly forwarded Mr McDermott's email to Mr Eldridge with a note that "we need to get this done in the next week".
Soon after receiving a copy of Mr McDermott's email from Mr Gray, Mr Eldridge in turn forwarded the chain of correspondence to his wife, Mrs Eldridge, and stated that "we need to do this" [CB 5/3786].
On 23 November 2016, Ms Posselt sent an email to Mrs Eldridge, with Mr Gray copied in, reminding her that Mr Eldridge needed to have the disclosure form "completed as soon as possible" [CB 5/3788]. Mrs Eldridge subsequently requested a copy of Mr Eldridge's previous Disclosure of Pecuniary Interest Return, which was provided by Mr Gray via email on 24 November 2016 [CB 5/3834].
Sometime in early December 2016, Mr McDermott again reminded Mr Gray that Mr Eldridge's Disclosure of Pecuniary Interest Return was overdue. Mr Gray advised that Mr Eldridge had taken the form home for Mrs Eldridge to complete, and that he would remind Mr Eldridge to complete it promptly [CB 5/3842].
By email sent on 21 December 2016, Mr Gray sought clarification from Mr Eldridge as to whether he had completed his form, which at this point was almost three months overdue. This was also drawn to the attention of Mrs Eldridge on the same date [CB 5/3834].
On 4 January 2017, Mr Eldridge filed his "Disclosure of Pecuniary Interest Return" for the period ended 30 June 2016 [CB 5/3836-3840].
Under the headings "Sources of Income" and "Interests and Positions in Corporations", Mr Eldridge's Disclosure of Pecuniary Interests referred to the following list of his company directorships held during the period from 30 June 2016 to 1 January 2017 [CB 5/3840]: (i) Accredited Financial Services Pty Ltd; (ii) Australian Indigenous Business Services Pty Ltd; (iii) Australian Rural Accounting Solutions Pty Ltd; (iv) Eldrotech Investments Pty Ltd; (v) RWEK Pty Ltd; (vi) Australian Insurance Network Pty Ltd; (vii) E Holdings Pty Ltd; (viii) Propwash Pty Ltd; and (ix) Posthunt Pty Ltd.
On 4 January 2017, Ms Ingrid Hensley (Ms Hensley), the Council's Manager of Governance and Risk, sent a memorandum to Mr Eldridge, acknowledging receipt of his completed "Disclosure of Interest Return" for the period ended 30 June 2016 and stating "[y]our return has been placed in the 'Register of Returns' which is available for public inspection during business hours". Ms Hensley also made a handwritten file note of her activities on 4 January 2017. That file note was as follows [CB 5/3843]: "File Note 4.1.17 10.50am During discussions with the team - Julie Earles, Neil [McDermott], Nicole [Johnson] and Belinda [King], I was made aware that the GM's [Mr Eldridge's] Pecuniary Interest form had not been completed. Advised that numerous reminders had been sent to him/his office. Was further told that a report to Council had gone even though his Dec[laration] hadn't been completed. I asked how this had happened and was told he was reminded but directed that the report was to still go to Council & he'd have his form done. However, this didn't happen and the form wasn't completed & the Report still went. The Governance Manager at the time was 'furious' but was directed that the Report should go. Got Neil [McDermott] to print me off another form - for the GM [Mr Eldridge] immediately. 11.20am Went to GM [Mr Eldridge] with blank form. Advised it was overdue and potential non-compliance with the Act. Advised him to complete immediately. GM voluntarily said 'I don't want to get you or I into trouble so I'll do it now'. He then said, unprompted, 'There's a reason I didn't complete the form you know?'. I didn't say anything & he went on to say 'I didn't complete the form because I was waiting to sell 5 companies first'. I advised form can be updated at anytime and outlined his GM [obligations] etc. PM Form completed. Memo sent." (emphasis added).
In his affidavit, Mr Eldridge said that he did not recall this conversation attributed to him but asserted that it was unlikely: "that I would have referred to not completing the form 'because I was wanting to sell 5 companies first'. I was not selling any companies at this time."
In his oral evidence, Mr Eldridge denied this conversation.
There is no reason to doubt the accuracy of Ms Hensley's file note. She was a recently appointed, legally trained governance officer who would have had every reason to be shocked at what she had been told during discussions that morning with her team regarding Mr Eldridge's persistent failures to comply with his obligations, and by reason of that shock to have created a contemporaneous file note. Whether or not Mr Eldridge was in fact "wanting to sell five companies first", I have no reason to doubt that that is what he told Ms Hensley. An episode concerning an email sent to Ms Posselt and Mr Gray in July 2016 illustrates that Mr Eldridge was more than capable of giving his staff false explanations to explain or justify his actions: see further at [320]-[327] below.

[16]

Exchanges with Ms Caroline Angel regarding conflict of interest

Ms Caroline Angel (Ms Angel) was appointed to her current position in the Council as Director of Commercial Operations on 5 October 2016. She had commenced employment with the Council approximately six months earlier.
In or about October 2016, Ms Angel recalled what she described as an "odd incident". She recounted this as follows [CB 1/206 at [25]]: "The incident involved me returning to my office and on my chair was a two page document relating to a development on Inglewood Road. I do not know who placed this document on my chair. I then became concerned about the request to upgrade Inglewood Road by …[Mr Eldridge], which I describe in paragraph 19 above. Once I saw what the document concerned, I went around to [Mr Eldridge's] office and had a conversation with him to the following effect: '[Ms Angel]: Alan, I've just found this document about Inglewood Road on my chair. Do you know anything about this? [Mr Eldridge]: No I don't. [Ms Angel]: Do you have a conflict about Inglewood Road? [Mr Eldridge]: No, I don't have a conflict. [Ms Angel]: If this was left on the chair in my office, someone was trying to say something about it. If you have a conflict, it is best to know and be open about it. [Mr Eldridge]: It would only be a conflict if I signed off on a development, and I have not. Liz [Rankin] has signed off on the Inglewood proposal. Are you suggesting I have done something wrong? [Ms Angel]: It is up to you to manage your own conflicts, but yes, I believe you do have a conflict.'"
Ms Angel said that Mr Eldridge did not respond to her and left her office.
Mr Eldridge denied that this conversation occurred.
Ms Angel also gave evidence of a telephone call she received from Mr Eldridge in the period after he had been stood down as General Manager but before his termination, that is to say some time between 22 February 2017 and 29 May 2017. Her account of this conversation was as follows: "After [Mr Eldridge was stood down] and while [he] was still employed by Council, I was called by [Mr Eldridge] one day. I answered, not knowing that Alan was calling because he was calling from a private number, and had the following short exchange with him: '[Ms Angel]: Hello? [Mr Eldridge]: It's Alan. [Ms Angel]: Hi Alan. What can I do for you? [Mr Eldridge]: I'm just calling to say that at least you're the only one that had the balls to speak to me about it [Ms Angel]: About what? [Mr Eldridge]: About Inglewood Road' and then he hung up."
Mr Eldridge also denied that this conversation occurred. He said that he would not have used the expression "the balls" in a conversation with a woman and that he did not use "private number block" on his mobile phone. As explained at [349]-[352] below, I accept Ms Angel's evidence of these two disputed conversations.

[17]

Events leading to Mr Eldridge's termination

On 16 February 2017, a journalist with The Daily Advertiser newspaper, Mr Jack Morphet (Mr Morphet), sent the following email to Mayor Conkey and Mr Eldridge under the subject heading "Inglewood Estate Wagga Pty Ltd" [CB 5/4108]: "Why didn't Alan Eldridge disclose his son was a director of the development company applying for a change to land-use zoning on Inglewood Road, Gumly Gumly, on any of the three times the application went before councillors? He declined to declare a conflict of interest when Inglewood Estate was brought up at the Policy and Strategy meeting on March 14, as well as ordinary meetings of council on March 29 and May 30. The change to land use from primary production to large lot residential was deferred to the Planning Task Force. Wasn't Alan effectively running the planning department at the time? Does that mean he was ultimately responsible for a decision that could have been lucrative for his son? Does this represent a breach of Local Government Act s.443 and council's protected public interest disclosure, code of meeting conduct and conflict of interest policies? Does Joshua Eldridge beneficially hold shares in Inglewood Estate Wagga Wagga Pty Ltd for Alan Eldridge? What is the current state of the application for rezoning? Did Mr Eldridge take into consideration Tristan Kell was the planner and applicant for the zone change before hiring him as Wagga's Manager of City Strategy? Was that decision improper or 'jobs for the boys?' If the application is still pending, does that mean council's Manager of City Strategy has an application for rezoning before his colleagues? What does the Manager of City Strategy do?"
There were conflicting accounts as to what occurred on 16 February 2017. According to Mayor Conkey's evidence, on 16 February 2017, Mr Eldridge informed him of a telephone conversation he, Mr Eldridge, had with a journalist from The Daily Advertiser, a local Wagga Wagga newspaper, in which Mr Eldridge was told "we have got you now". According to Mayor Conkey's account, Mr Eldridge told him that: "The Daily Advertiser are getting further legal advice before running the story. The story is in relation to Josh [Eldridge], who's got a business connection with the part owner of a block of land on Inglewood Road that had a development application going in early 2016. Josh has many business interests and I am not aware of this one in particular." (emphasis added).
This conversation was not the subject of any dispute by Mr Eldridge in his detailed affidavit which took issue with other aspects of Mayor Conkey's evidence as well as that of other witnesses called by the Council. Mayor Conkey was not challenged as to his recollection of this conversation.
Mr Eldridge said in his oral evidence that he had been shocked to receive Mr Morphet's email and that the events of that day were "blurry" [T. 373]. Notwithstanding this, in his affidavit, he purported to recall that the following conversation occurred on 16 February 2017 after receipt of Mr Morphet's email: "[Mr Eldridge]: An email has been received by me from a Jack Morphett a junior journalist working for The Daily Advertiser the local Wagga Wagga newspaper. There are a lot of questions here and some of them I don't know the answers to, we will need to check records and obtain legal advice, because it is talking about staff appointments and other processes of Council. Mr Conkey: Yes I know Jack very well; he is a good journalist and a good friend. [Mr Eldridge]: Greg, Morphett almost lost the city the deal with Genesee & Wyoming Australia last month when he rang their CEO directly making unsubstantiated claims about an alleged poor relationship between Wagga Wagga City Council and Genesee & Wyoming Australia, which we all know was not true, yet he printed it. Mr Conkey: I will talk to Jack; we have a good relationship. Mr Koschel: All the media staff knows about this and it will not be long before all the Council staff know and the public will soon know. I will draft a response for the GM consideration. Mr Conkey: Alan you will need to respond to it but do it through me and I will respond to the media. [Mr Eldridge]: This is not a formal complaint Greg. The press are asking operational questions and we will answer them when we know the details. Mr Conkey: I need a written response to the questions from you Alan. [Mr Eldridge]: OK I will need to understand the facts before I can respond to anybody, because I cannot recall some of the meeting dates and other things he mentions in his email are to do with Council procedures. [Mr Eldridge]: I will need to seek advice about what to say in public. Mr Conkey: Yes get whatever legal advice you need, but I want a written response from you Alan. [Mr Eldridge]: Yes but we also need to find out the facts of what their allegations are. Let's get all the details and work through this."
Mr Eldridge said that he could not recall precisely who was present at the meeting during which this conversation occurred but recalled Mayor Conkey, Mr Gray, Ms Hensley and a Mr Brett Koschel (Mr Koschel), then a member of the Council's media and communications staff.
Mayor Conkey denied that the conversation occurred as recalled by Mr Eldridge. In particular, Mayor Conkey denied that he ever said to Mr Eldridge that he could "get whatever legal advice you need" or any remark to similar effect. According to Mayor Conkey, at no time did Mr Eldridge ever mention, or seek permission regarding, legal advice about any relevant matter.
In addition, Mayor Conkey denied having a close relationship with Mr Morphet, or speaking to Mr Eldridge about any such relationship. Mayor Conkey also denied ever claiming that he would respond to The Daily Advertiser's inquiries, as he did not know the answers to the questions about Mr Eldridge's alleged interests or disclosures thereof.
Mr Gray denied the following portions of the conversation [CB 1/327]: "Yes I know Jack very well; he is a good journalist and a good friend"; "I will talk to Jack, we have a good relationship"; and "yes get whatever legal advice you need, but I want a written response from you Alan".
Ms Hensley could not recall being present at this meeting and Mr Koschel was not called by either side.
Whether authorised or not, it is clear that on 16 February 2017, legal advice was sought by Mr Eldridge from LTL who were on the panel of Council approved lawyers.
Mr Eldridge referred to having been provided with initial advice by Dr Lindsay Taylor (Dr Taylor) over the telephone and, on 17 February 2017, he was copied in on an email from Dr Taylor to Ms Hensley which contained a draft media release and staff circular. This email referred to a telephone conversation with Mr Eldridge and Ms Hensley on 16 February 2017 and written instructions sent by Ms Hensley late on the afternoon of 16 February 2017.
Ms Hensley's detailed file note of the events of 16 and 17 February 2017 was as follows [CB 5/4158-4159]: "At approximately 2.30pm on Thursday, 16 February 2017 Mr Eldridge contacted myself, Ms Ingrid Hensley and, together with Mr Scott Gray, advised there were conflict of interest issues being raised, including in relation to the General Manager, and PSRP-5 Planning Proposal for Land at Inglewood Road, Gumly Gumly and 17 River Road, Gobbagombalin (Inglewood Estate) ('the Planning Proposal'). I had no knowledge of this matter prior to this conversation. The information provided by the General Manager in that brief, unscheduled meeting was that it was an allegation of a conflict of interest issue that Council, as an organisation, was required to respond to, as a result of the media request. Mr Eldridge went on to tell me he had been given advice from Mr Lindsay Taylor of Lindsay Lawyers and that he was having a further telephone conference with Mr Taylor early the next morning, being Friday 16 February 2017. Mr Eldridge asked me to contact Mr Taylor to see what time the conference was scheduled for and asked me to also come into the office to participate in the meeting, as I do not normally work Fridays. I agreed. The General Manager also said he had asked Mr Taylor to draft some documents for him and to provide him with advice. As a result, I went on to ask the General Manager whether Mr Taylor had all the relevant information he required in order to provide that advice. His response was words to the following effect 'I don't know. Can you ask him'. l further asked the General Manager with words to the following effect 'Does Mr Taylor have any written documents on the issues'. The General Manager's response was 'No'. I also said that when briefing a member of the Legal Services Panel on behalf of Council we would ordinarily provide a written brief with the attached documents. The General Manager asked me to discuss this with Mr Taylor and provide him with information requested. I contacted Mr Taylor by telephone at approximately 3.20pm and left a message with his office. At 3.58pm I spoke to Mr Taylor on the telephone and he advised that no teleconference had in fact been scheduled. Mr Taylor did say he was providing advice to Mr Eldridge and would be sending this to him very early the next morning, at approximately 6.30am - 7.30am. Mr Taylor said words to the following effect: 'My instructions are that he did not know about it', referring to the Involvement of Mr Joshua Eldridge. Mr Taylor continued to say he had been asked by the General Manager to prepare a number of documents. I asked whether he had all the information he required to do so. His response was words to the following effect: 'No. I need some background information - can you please send me the name of Alan's son, the full name of the Inglewood Estate and the names of who, within Council, should now have responsibility for the matters.' As a result of the above, and also to respond to Mr Taylor's request for information, I sent Mr Taylor a Memorandum on Thursday, 16 February at 5.40pm, titled 'General Manager - Conflicts of Interest', attaching the documentation I had obtained, at short notice, on the issue, to enable Mr Lindsay to fully consider the matter, as per instructions initiated by the General Manager. Thereafter, I had a number of email and telephone exchanges with Ms Megan Hawley and Mr Lindsay Taylor, of Lindsay Taylor lawyers, in relation to this issue and the brief I provided on behalf of the General Manager. As a result of the above I was becoming concerned around the increasing complexity of the issue, ·particularly in light of statements being made by the General Manager, and wanted to ensure the advice being given by Mr Taylor was being provided in the context of any relevant information available at that time. As a result, l sent additional documentation to Mr Taylor on Friday, 17 February at 12.57pm. I also believed that the General Manager had a number of telephone conferences with Mr Taylor, which I was not privy to". (emphasis added).
The letter of instructions was in evidence [CB 5/3858-3859]. It attached relevant documents to enable consideration of the matter and provided further background information "as requested". The letter concluded as follows: "As discussed, Council requests advice on the following matters and preparation of documents as set out below 1. Drafting by you of a written direction to staff members who have management of the proposal, as to the removal of the General Manager form any future involvement in the project and associated matters. 2. A written statement for the media. 3. A review of the General Manager's delegations and advice as to whether amendments are required and, if so, re-drafting of those delegations. 4. Advice for the General Manager about how to proceed with conflicts of interest in the future, in view of the business interests of his family members. As discussed, we request that items 1 and 2 be provided on an urgent basis."
As requested, items 1 and 2 were dealt with urgently.
In an email sent at 10.15am on the morning of 17 February 2017 by Dr Taylor to Ms Hensley and which was copied to Mr Eldridge, Dr Taylor attached a draft media release and direction to sector managers. The former document, consistent with what Ms Hensley had recorded as Dr Taylor's oral instructions from Mr Eldridge, stated that Mr Eldridge was not aware of his son's involvement with the Inglewood Road Planning Proposal until early 2017.
A Confidential Council Memorandum entitled "Direction to Sector Managers" was issued under Mr Eldridge's signature on 17 February 2017 [CB 5/4128]. It was in the following terms: "Both Mr Tristan Kell, Manager of City Strategy and I have conflicts of interest in respect of the above Planning Proposal arising from, in my case, my son, Joshua Eldridge's involvement in the Planning Proposal, and in the case of Mr Kell, his previous role for the applicant for the Planning Proposal. As a result, neither Mr Kell nor I can have any involvement in the assessment and determination of the Planning Proposal. Directors and Managers must ensure, and must direct all staff under their supervision and control to ensure: a. That no documentation regarding the Planning Proposal and in particular, no report or recommendation to Council regarding the Planning Proposal is given or shown to Mr Kell or me; and b. That no person discusses the Planning Proposal with Mr Kell or me, or when Mr Kell or I are present. For that reason, Mrs Natalie TePohe, Chief Financial Officer, will sign off on any report in respect of the Planning Proposal. I will continue to approve agendas and business papers, including for meetings at which the Planning Proposal is considered. However, when submitting business papers to me for approval, all documents relating to the Planning Proposal must be extracted from the business papers before I see them. Mr Kell and I will not be present during the part of any meeting (including E-team Review of Reports meetings, and Council meetings) during which Planning Proposal is discussed. The above measures are essential to ensure that the assessment of the Planning Proposal is independent and decision by Council cannot be challenged on the basis of the interests of Mr Kell and me. Please inform your staff of the above measures and ensure that they comply with them. If you have questions regarding implementing the above direction, please contact Ingrid Hensley, Manager Audit Risk and Governance." (emphasis in original).
It should be noted that Tristan Kell who had been a major point of contact between Mr Eldridge, Joshua Eldridge and AE Partnership and Design in 2015 in relation to Inglewood Road and who in fact singed the Inglewood Road Planning Proposal had been appointed to the Council as Manager of City Strategy in January 2017.
There were extensive exchanges on 17 February 2017 prior to the issue of the Direction to Sector Managers between Ms Megan Hawley (Ms Hawley) of LTL and Ms Hensley discussing various drafts of the Direction and proposed media release. Mayor Conkey who was not copied into this correspondence at the time was asked to review it in the witness box whilst under cross-examination and agreed with the classification of the exchanges between Ms Hawley and Ms Hensley as relating to or dealing with "operational matters" of Council (although he did say that they also concerned the affairs of the General Manager of which he and his fellow members of Council should have been informed) [T. 121-124].
On 20 February 2017, Mayor Conkey emailed Mr Eldridge requesting a written report on the allegations in The Daily Advertiser.
Mr Eldridge provided the following response that same day which was in these terms [CB 5/4146-4148]: "Dear Greg On Thursday 16 February 2017 I received questions from The Daily Advertiser in relation to what they have perceived to be a conflict of interest that involves my son and his involvement as a real estate agent for a planning proposal along Inglewood Road. I was not aware of my son's involvement with one of the land owners in the planning proposal until recently. As I have now been made aware, I have declared a pecuniary interest relating to the planning proposal by virtue of s443(1)(b) of the Local Government Act 1993. However, s443(3)(a) of the Local Government Act makes it clear that I have no pecuniary interest in the matter until I became aware of my son's interest. Any claims otherwise are incorrect. Independent legal advice confirms that under these circumstances, I have not breached the pecuniary interest provisions of the Local Government Act. The following table outlines when the Planning Proposal in question was considered at Council meetings: … Now that I am aware of my son's involvement, I will not be present during any internal discussions in respect of this Planning Proposal, and will not be present in the Council Chamber during any discussion, debate or voting in respect of this Planning Proposal or any other planning proposal that I may have a conflict with. Attached is a directive to staff. Some key points to note regarding this allegation are: ● Neither my son nor his business are the applicant and therefore are not stated in the report ● There has been no internal assessment of the report and therefore I have not had any involvement in the process ● All staff recommendations above seek a deferral of the Planning Proposal ● These are gateway reports which require assessment by State Planning and therefor [sic] I could not influence an outcome. From this statement you can see that no rules have been broken and there is no impropriety in this matter." (emphasis added).
Mayor Conkey kept an electronic diary. Portions were in evidence. The entry for 20 February 2017 included: "Alan is being chased by the DA [Daily Advertiser] over a conflict of interest claim … the matter came up before councillors during the first half of last year and it was deferred … Alan said he didn't know his son was involved with a company with a man who was also one of the owners involved with the gateway determination … i [sic] asked Alan for a written formal report on the matter which i [sic] got during the afternoon". (emphasis added).
On 20 February 2017, Ms Hensley sought advice from Ms Hawley of LTL as to whether or not it was appropriate for the Council to pay for the advice that was being sought. She was advised by email of 20 February 2017 that it was appropriate.
Notwithstanding this advice, Ms Hensley made a file note of a discussion she had with Mr Eldridge shortly after receipt of this advice. The file note was as follows [CB 5/4143]: "GM [Mr Eldridge] & IH [Ms Hensley] - verbal - 3:45pm Asked GM if he still wished for this to occur. Advised my recommendation was that part or all of the cost be met by him. GM directed Council to fund. Said the situation would not have occurred if he weren't employed here, and so council should pay for advice."
The draft media release supplied by Dr Taylor on the morning of 17 February 2017 went through a number of iterations before it was finally issued on Wagga Wagga City Council letterhead on the morning of 21 February 2017 as follows [CB 5/4151]: "Conflict of interest clarified by GM City of Wagga Wagga General Manager Alan Eldridge would like to address concerns raised by local media about a potential conflict of interest in relation to a Planning Proposal currently lodged with the City. 'The land in question is owned by four land owners, and at least two of them are not known to me and l am not sure if I have even met them. The planning proposal was submitted to council well before I came to work in Council. I have had no involvement in the proposal. Neither l nor any of my family has financial holdings in any of the land in question. My son through his business dealings has a relationship with one of the land owners. I was not aware of my son's involvement with the proposal until recently. As I have now been made aware, I have declared a pecuniary interest relating to the planning proposal by virtue of s443(1)(b) of the Local Government Act 1993. However, s443(3)(a) of the Local Government Act makes it clear that I had no pecuniary interest in the matter until I became aware of my son's interest. Any claims otherwise are incorrect and I not have [sic] breached the pecuniary interest provisions of the Local Government Act. As I have declared a pecuniary interest I will not be present during any internal discussions in respect of this Planning Proposal, and will not be present in the Council Chamber during any discussion, debate or voting in respect of this Planning Proposal or any other planning proposal that I may have a conflict with. I am also aware that my son has lodged DA 17/0036 for the residential subdivision of land at Uranquinty and there may be future development applications lodged by him and I will not be present during any internal discussions in respect of this Planning Proposal, and will not be present in the Council Chamber during any discussion, debate or voting in respect of this application. The city has policies in place at to deal with applications such as these and they are assessed in accordance with Council's Policy POL 046- Processing Development Applications Lodged by Councillors, Staff and Individuals of which a Conflict of Interest May Arise, or on Council Owned Land Policy.' A report on the Planning Proposal in question was considered at the 29 March 2016 Council meeting and again at the 30 May 2016 Council meeting with council resolving the following: That Council in line with the recommendations of the Wagga Wagga Spatial Plan 2013-2043, defer consideration of land identified as potential urban land and potential intensification until the relevant strategic work is completed by the Planning Task Force." (underlining added for emphasis).
Mayor Conkey's diary note for 21 February 2017 recorded that: "the conflict of interest hit hard … Alan went on the front foot late in the day with statements to TV defending his stand .. the DA then put out a story on their web site making a number of accusations … and calling on him to stand down pending an independent investigation … Wes Fang on his facebook page outlined more details and also demanded action by councillors … i [sic] rang our Sydney solicitors to get advice … Brian Williamson the solicitor said on the surface it appeared Alan had done nothing wrong … got a phone call from Rod Kendall also stating in his mind Alan had done nothing wrong. … Spoke with Dallas who had the same opinion … and on the way home got a call from Tim Koschel stating Dan and Vanessa had the numbers to get Alan stood down (although Tim supported me to wait and see what else develops) … rang Kerry Pascoe who said he also did not support Alan being stood down (making 'my' numbers five) … during the night received a number of text messages from Vanessa and Dan (also spoke with Dan) … they were demanding I immediately stand Alan down … I said I would have to await legal advice … at about 10.30 Dan sent me a document of that fateful meeting on March 14 2016 … in an attachment was a document which confirmed Alan's son involvement in the project … Alan was both the acting GM and the director of planning at the time and had signed off on the motion put to council … he either had not read the attachment (my belief) or had lied about his son's involvement … the recommendation from Alan to the Council was to defer which is in fact what happened … got a late text from Dallas [Tout] … rang him around midnight … he stated I have been doing everything by the book and that like me he would make up his mind once the legal opinion was received … Brian did not contact me at night …" (emphasis added).
The reference in this diary note to "Dan" having sent a document was a reference to an email sent by Mr Hayes, one of the Councillors, which contained a link to the Supply and Demand Report in which Mr Joshua Eldridge was referred to as the person who had given instructions for the Report. It is plain from Mayor Conkey's diary note that, at this point in time, he and a number of his colleagues had accepted Mr Eldridge's denials as to having no past awareness of the Planning Proposal or of his son's involvement. As will become clear, their acceptance of that lack of awareness was because Mr Eldridge had simply lied in his report to the Mayor.
On 22 February 2017 at 7.55am, Mr Eldridge wrote to Councillors, attaching a draft media release. His email read as follows [CB 5/4169]: "Dear All I have been in contact with our lawyers last night and today, they have reviewed the [Daily Advertiser] and the Fang posts and they have assisted in drafting this media release. It will be released this morning. The issue here is that I have not breached any of my duties or the [Act] and nothing presented by the DA or Fang demonstrates otherwise. They can be held liable."
This email elicited the following response from Councillor Vanessa Keenan: "I don't think it is appropriate for you to issue a personal statement on Council letterhead and does not reference any legal advice."
Mr Eldridge responded shortly thereafter, saying that he appreciated Councillor Keenan's opinion but that he did "have legal advice" and that what had been set out "has been drafted and cleared by our lawyers".
On 22 February 2017, Mr Eldridge agreed to step aside voluntarily from his position pending an independent investigation into the allegations of failing to declare a conflict of interest. In a letter sent to him on 22 February 2017 by Mayor Conkey and Deputy Mayor Tout, the two Councillors wrote [CB 5/4160]: "Your standing aside and the completion of an independent investigation is the only way that we can ensure that your reputation and the reputation of the Council is protected. It will also protect your family from vitriol."
Mr Eldridge was placed on paid special leave until 31 March 2017.
A detailed written advice from LTL, addressed to the General Manager of the Council, but marked for the attention of Ingrid Hensley, was sent on 27 February 2017 [CB 5/4190]. It related to matters of governance generally and was not the investigation into Mr Eldridge that had been foreshadowed.
On 21 April 2017, following an initial independent investigation by Workwize Pty Ltd, a firm of human resources consultants who had been retained by Williamson Barwick Lawyers (Williamson Barwick), Mayor Conkey sent a detailed 10-page letter to Mr Eldridge setting out some five allegations made against him [CB 5/4246]. These allegations were of an extremely serious nature. They had been formulated by Williamson Barwick based on the Workwize report.
The first four allegations took a similar format in that they set out various matters of fact and then the specific allegations were formulated by reference to the facts and circumstances relied upon.
The first allegation was that Mr Eldridge: "knowingly misled Council because the Report [for submission to the Ordinary Meeting of Council on Monday 31 October 2016] stated that Declarations of Pecuniary Interests Returns had been received from all Designated Persons as required under the Act, when that was not a correct statement because you had failed to lodge a Disclosure of Pecuniary Interest Return 2016 by 30 September 2016, or at all, by the time the Report was tabled to Council." (emphasis added).
The second allegation was that Mr Eldridge: "lodged a Disclosure of Pecuniary Interest Return with Council for the period ended 30 June 2015 which [he] knew was false or misleading because it omitted the disclosure of interests in the following corporations: i. E Properties Wagga Pty Ltd ACN 062 105 677; ii. Allante Pty Ltd ACN 095 910 259; iii. Indigenous Products Australia Aboriginal Corporation ICN 7615" (emphasis added).
The third allegation was that Mr Eldridge: "lodged a Disclosure of Pecuniary Interest Return with Council for the period ended 30 June 2016 which [he] knew was false or misleading because it omitted the disclosure of interests in the following corporations: i. E Properties Wagga Pty Ltd ACN 062 105 677; ii. Allante Pty Ltd ACN 095 910 259; iii. Indigenous Products Australia Aboriginal Corporation ICN 7615." (emphasis added).
The fourth allegation was that Mr Eldridge: "In the period from as early as November 2015 but by no later than 18 May 2016, [was] aware that [he] had a conflict of interests within the meaning of section 4.6 of the Code of Conduct because [he] knew that [his] son Joshua Eldridge had a pecuniary interest with respect to the Inglewood Estate Planning Proposal. In the period November 2015 to May 2016, [he] failed to disclose [his] conflict of interests in Council meetings [he] attended at which the Inglewood Estate Planning Proposal was being considered. In the period from as early as November 2015 but by no later than 18 May 2016 to 17 February 2017, [he] failed to give written notice of [his] conflict of interests to the Mayor." (emphasis added).
The allegation continued: "In the facts and circumstances above, it is alleged that [Mr Eldridge]: i. breached clause 6.1.2 of the Standard Contract because [he] failed to act honestly and failed to exercise a reasonable degree of care and diligence in carrying out [his] duties and functions with respect to the management of [his] conflict of interests; ii. breached clause 6.1.2 of the Standard Contract because [he] failed to comply with sections 4.2 and 4.12 of the Code of Conduct; iii. breached clause 6.1.2 of the Standard Contract because [he] failed to comply with sections 445, 451 and 459 of the Act; iv. breached [his] duty of fidelity by failing to honesty and faithfully serve the interests of Council."
Each of these allegations involved knowingly (i.e. deliberately) misleading the Council or knowingly concealing a conflict of interest. The fourth allegation expressly alleged a failure to act honestly on the part of Mr Eldridge.
The fifth allegation was as follows: "(a) on 16 February 2017, The Daily Advertiser raised questions regarding the Inglewood Estate Planning Proposal and possible conflict of interests by [Mr Eldridge]. (b) On 16 February 2017, [Mr Eldridge] directed Ingrid Hensley of Council to instruct Councils' solicitors, Lindsey [sic] Taylor Lawyers, for legal advice and drafting documents including an announcement to staff and a press release, regarding [his] own alleged conflict of interests. Council was subsequently invoiced by Lindsey [sic] Taylor Lawyers, in the amount of $6,999.30 inclusive of GST. (c) [Mr Eldridge] failed to give full written details to the Mayor of the conflict of interests issue or seek independent legal advice, as required by the Conflict of Interests Policy. (d) [Mr Eldridge] failed to obtain permission from Council to retain Lindsey [sic] Taylor Lawyers, for legal advice and drafting documents regarding [his] own alleged conflicts of interests. (e) In the facts and circumstances above, it is alleged that [Mr Eldridge]: i. breached clause 6.1.2 of the Standard Contract because [he] failed to comply with section 7.12 of the Code of Conduct; ii. breached clause 6.1.4 of the Standard Contract because [he] failed to comply with the Conflict of Interests Policy by reason of [his] own failure to give full written details to the Mayor of the conflict of interests issue or seek independent legal advice; iii. breached [his] duty of fidelity by misusing [his] position as General Manager and misusing Council resources, for [his] own benefit." (emphasis in original).
A detailed written response to the Mayor's letter of 21 April 2017 from Hennessy Dowd Lawyers (Hennessy Dowd) on behalf of Mr Eldridge was received on 19 May 2017 [CB 6/4447]. The letter was forwarded by the Council's solicitors to the Mayor on the same day. The Mayor, in turn, forwarded the response to the Acting General Manager of the Council, Mr Rod Knight.
The letter denied each of the five allegations that had been made in the Mayor's letter of 21 April 2017. In particular, this letter stated that: "First, it is apparent that Inglewood Estate Wagga Wagga Pty Limited is not the applicant, contrary to what is asserted at paragraphs (a) and (b) of allegation 4 in the Letter. The Applicant Details on page 1 of the application make it plain that the Applicant is Mr Tristan Kell (of AE Design Partnership). It is not Inglewood Estate Wagga Pty Limited (Inglewood Estate Wagga). Mr Eldridge does not have any relationship with Mr Kell or AE Design Partnership … … Until February 2017 (when this matter came to Mr Eldridge's attention), Mr Eldridge was not aware that his son Joshua Eldridge (Joshua) had any involvement in Inglewood Estate Wagga. It follows that Mr Eldridge would not have been aware of any potential conflict of interest, even if he read the application documents … … Moreover, the role of Mr Brunskill and Joshua in the application is limited. (i) On page 3 of the application, there is a list of entities who own the properties to which the application relates. One of the persons listed is Graeme Brunskill. Even had Mr Eldridge been aware of Joshua's commercial agency relationship with Mr Brunskill, it does not follow that there was an obvious conflict of interest for Mr Eldridge. (ii) The application also annexes a 'Master Plan Report', which includes a notation that it was 'Prepared for: Inglewood Estate Pty Ltd'. Notably, the notation does not say that it was prepared for Inglewood Estate Wagga. In any event, Mr Eldridge was not aware of Joshua's interest in Inglewood Estate Wagga at that time. There is nothing that demonstrates otherwise." (emphasis added).
On 23 May 2017, Ms Hensley wrote to all councillors as follows [CB 6/4459A]: "Further to your discussions with the Mayor I write to you to facilitate the viewing of previous correspondence between Williamson Barwick and Mr Alan Eldridge's legal representatives. In the event Councillors wish to view this correspondence they will be made available in the Wollundry Meeting Room on Thursday, 25 May 2017 from 12.30pm to 2.30pm. Correspondence will be collected at the end of the session. A calendar invitation will be sent out. In the event you are not available for the lunchtime session please contact me and an alternate date and time(s) will be arranged. It is emphasised that the documents are confidential in nature and subject to legal professional privilege. Their content should not be divulged or discussed beyond Council and to do so would expose Council to legal risk."
Although there was no direct evidence of the matter, it may be inferred from an email sent by Ms Hensley on 24 May 2017 [CB 6/4459E] that a number of the Councillors availed themselves of this opportunity. The folder of material to which Councillors were given access was tendered in evidence as Exhibit D1.
On 25 May 2017, Hennessy Dowd wrote to Williamson Barwick as follows [CB 6/4459]: "As required, our client submitted a response to Council to various allegations by Council's imposed deadline of 2pm Friday 19 May 2017. However, we understand that Council did not consider his response at the Council meeting held on the evening of Monday 22 May 2017. Further, we understand that the Mayor, together with a representative of your firm, intend to address the Councillors about our client during the next scheduled meeting on Monday 29 May 2017. Our client naturally expects as a matter of good practice and procedural fairness that when Council discusses our client, all Councillors will be fully informed of Council's letter to Mr Eldridge dated 21 April 2017 and his response dated 19 May 2017. Further, our client requests that the Councillors be notified that he seeks a right to address Council at the meeting, prior to any decision about him being made in his absence. We can see no disadvantage to Council in allowing such a meeting, and indeed it would give all involved confidence that Wagga Wagga Council treats any issues with employees in a fair, open and legal manner. Further, our client offers to make available to Council his legal representatives (at his cost) for the purpose of that meeting, and to provide the opportunity of narrowing and resolving amicably any legal issues going forward. For example, our client would like to propose, inter alia, a resolution that includes a joint media release to finalise the issues."
This request was rejected, apparently on the advice of Mr Adrian Barwick of Williamson Barwick (Mr Barwick), and neither Mr Eldridge nor his solicitors attended the extraordinary meeting of Council on 29 May 2017.

[18]

The Council meeting of 29 May 2017

An extraordinary general meeting of the Council was called for Monday 29 May 2017.
The minutes of that meeting record that [CB 6/4469]: "On the motion of The Mayor, Councillor G Conkey OAM That Council: a receive and note the legal advice b terminate the Contract of Employment of Mr Alan Eldridge in accordance with the recommendations contained in the Confidential Report tabled at the meeting on 29 May 2017 c authorises the legal expenditure incurred by the Mayor on behalf of Council in relation to obtaining legal advice on the matter d in accordance with s11(3) of the Local Government Act 1993, the confidential report and legal advice tabled at the meeting are to remain confidential". (emboldening in original)
Notwithstanding the terms of this resolution, Mayor Conkey's evidence was that no legal advice was actually tabled at the meeting or provided or distributed to Councillors in hard copy. Indeed, Mayor Conkey's evidence was that the Councillors had no papers with them for the purposes of their consideration of the serious allegations against Mr Eldridge but that they were given a detailed and extensive briefing by Mr Barwick. Mayor Conkey also referred to various oral briefings in the week leading up to the meeting of 29 May 2017. That evidence was also consistent with the fact that Councillors had been given an opportunity to review both Hennessy Dowd's response on behalf of Mr Eldridge and the Williamson Barwick legal advice in the days leading up to the meeting of 29 May 2017.
According to the subsequently signed minutes of the meeting, the Council met in closed chambers to consider the allegations against Mr Eldridge for a number of hours.
Various Councillors gave evidence outlining their reasons for supporting the resolution summarily to dismiss Mr Eldridge. What is of central importance for these proceedings, however, is whether the collective decision summarily to dismiss Mr Eldridge was justified, and not the individual reasoning process of individual Councillors.
Following the extraordinary general meeting, [CB 6/4489], the Mayor sent the termination letter to Mr Eldridge stating, under the heading, "Reasons for your Summary Dismissal", that the Council was satisfied, on the balance of probabilities, that he had committed a series of serious breaches of the Standard Contract. These are the breaches that have been set out at [7] above.
On 7 June 2017 [CB 6/4491], Mr Eldridge's solicitors put the Council on notice of his contention that his termination was wrongful and without legal basis.
Proceedings in this Court were ultimately commenced on 28 September 2018.
After his dismissal from Council, as noted earlier in these reasons, ICAC conducted an investigation into various allegations against Mr Eldridge including some of the matters the subject of these proceedings. The investigation included the seizure of various documents from business premises associated with the Eldridge Group.
On 11 September 2019, ICAC informed Mr Eldridge that [CB 6/5346-5347]: "The Commission has now completed its enquiries. It has concluded that the available evidence is insufficient to support findings of serious or systemic within the meaning of s 12A of the Independent Commission Against Corruption 1988. The Commission proposes to take no further investigative action and the matter is closed. Nothing in this letter should be construed an expression of opinion in respect of any matter that is in dispute in the Supreme Court proceedings between Mr Eldridge and Council."
The preceding recitation of facts principally derives from contemporaneous documents, and has focussed upon matters of pecuniary interest, disclosure and Mr Eldridge's knowledge of the Inglewood Road Planning Proposal.
To the extent that there were material disputed conversations, I have indicated the fact of the dispute and my preferred account in the chronological narrative. My reasons for preferring particular accounts are dealt with in a later section of these reasons dealing with the credit of Mr Eldridge and various witnesses called by the Council: see [309]ff below.
To the extent that the Council relied upon Mr Eldridge's alleged engagement in unauthorised employment outside the Council, the facts in relation to that aspect of the case are considered in the context of that particular alleged breach at [407]-[473] below. So, too, the facts relating to the allegations of unauthorised personal expenditure are set out at [491]-[509] below.

[19]

A threshold jurisdictional question

At the commencement of his final address, Mr Fernon SC on behalf of Mr Eldridge drew the Court's attention to the terms of s 486A of the Act which provides as follows: "(1) The Civil and Administrative Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of a pecuniary interests duty by a person other than a councillor, a former councillor, an administrator or a former administrator. (2) Accordingly, proceedings at first instance to decide allegations of contraventions of a pecuniary interests duty by a person other than a councillor, a former councillor, an administrator or a former administrator may not be brought before, or entertained by, any other tribunal or any court."
The purpose of referring to s 486A appeared to be in aid of a submission that, by virtue of that section, this Court did not have any jurisdiction to decide allegations of contraventions of a "pecuniary interests duty", it being submitted on behalf of Mr Eldridge that this was in the exclusive jurisdiction of NCAT.
Section 486A falls within Chapter 14 of the Act. Part 3 of the Act is entitled "Complaints concerning non-disclosure and proceedings before NCAT". Section 460(1) of the Act provides: "A person may make a complaint to the Departmental Chief Executive, or the Departmental Chief Executive may make a complaint, that a person (other than a councillor, former councillor, administrator or former administrator) has or may have contravened a pecuniary interests duty."
Division 1 of Part 3 of the Act provides in the first instance for the investigation of complaints by the Departmental Chief Executive (s 462), notification (s 465) and presentation of reports (s 468) to NCAT with NCAT empowered to conduct proceedings into the complaint (s 469). Section 478(1) provides that NCAT may in proceedings before it deal with one or more complaints about a person. Section 482 of the Act gives NCAT a range of remedies. This is the statutory contract in which s 486A of the Act falls to be construed.
It was unusual, to say the least, for an argument of this kind going to jurisdiction, to be raised at the heel of the hunt in circumstances where the proceedings had been on foot since 2018 and Mr Eldridge had been aware that central to the reasons for his dismissal was his failure to comply with statutory obligations under Part 2 of Chapter 14 of the Act.
Notwithstanding the fact that it was raised late in the day, the question of jurisdiction which is raised needs to be addressed, noting that although statutes are generally not to be construed as depriving superior courts of power or jurisdiction (Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134; [1932] HCA 10), parties cannot confer jurisdiction on one court when, by statute, it is exclusively vested in another court: M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at [6.4]. This is so even if it is the common position of the parties that a particular court has jurisdiction over a matter, as the Court still must satisfy itself that it has such jurisdiction: Cockle v Isaksen (1957) 99 CLR 155 at 161; [1957] HCA 85; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 at [16].
In my opinion, s 486A does not operate to preclude this Court's consideration of earlier contraventions of Part 2 of Chapter 14 of the Act, including ss 441, 442, 448 and 449 of the Act
This is because these proceedings, properly characterised, are not "to decide" allegations of contraventions of Part 2 of Chapter 14 of the Act. Rather, they are proceedings to decide Mr Eldridge's claim for damages for breach of contract. Such a claim is not a creature of Part 2 or of the Act. By reason of the nature of the matters relied upon by the Council summarily to terminate his employment, it is true that whether or not Mr Eldridge contravened his obligations under Part 2 of Chapter 14 of the Act will need to be addressed, amongst other matters, but the purpose of these proceedings is not to decide whether such allegations were correct or not; it is to decide whether or not Mr Eldridge is entitled to damages because he was wrongfully terminated without notice.
Part 3 of the Act in which s 486A falls is, moreover, concerned with the resolution of "complaints" made against Council officers. There is no relevant complaint before the Court. Moreover, is it plain from s 482 of the Act that Part 3 is concerned with complaints against Council officers who are still employed by Council. That is, of course, not this case.
The submission advanced on behalf of Mr Eldridge would have the effect of precluding the Council from relying on alleged breaches by a "designated person" (see s 441 of the Act) of his or her duties of disclosure by way of justificatory defence to an action for breach of contract. Such an intention should not readily be attributed to the legislature, cf Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 at [90]-[99]. It would result in the fracturing of dispute resolution and sit most uncomfortably with both s 23 and s 63 of the Supreme Court Act 1970 (NSW).

[20]

Contractual construction

The starting point of any inquiry as to whether the summary termination of employment is justified is the terms of the relevant contract, in recognition of the fact that an employer's right of summary dismissal, as a matter of law, is "no more than an example of the general right of any contracting party to treat certain breaches as bringing the agreement to an end": see B Creighton and A Stewart, Labour Law (5th ed, 2010, Federation Press) at [18.24]; North v Television Corp Ltd (1976) 11 ALR 599 at 608-609.
In this context, it was submitted on behalf of Mr Eldridge that the contractual right of termination under cl 10.4.1 of the Standard Contract, the text of which is set out at [6] above, was confined to positive "acts" of misconduct and did not extend to omissions such as a failure to disclose a conflict of interest or a failure to lodge a pecuniary interest return. Reliance was placed on the words "Council may terminate this contract at any time and without notice if the employee commits any act that would entitle an employer to summarily dismiss the employee". (emphasis added).
The reference to "act" in cl 10.4.1 was not intended, in my opinion, to be confined to positive acts but extends to acts by way of omission. It is necessary to read cl 10.4.1 as a whole. In particular, that clause goes on to provide that "such acts include but are not limited to …" and then gives a number of examples. Several of the examples given could be characterised as omissions: see, in particular, (c) "serious … neglect in the performance of duties" and (d), namely the failure to comply with any law or Council policy concerning sexual harassment or racial or religious vilification. The current case did not, of course, include allegations of this kind but the relevance of (d) is that it informs (and is inconsistent with) Mr Eldridge's submission that cl 10.4.1 was confined in its operation to positive acts.
Furthermore, it would be passing strange for Council's ability summarily to dismiss an employee for serious matters to be confined to positive acts of misconduct as opposed to serious or negligent failures to comply with policies or to adhere to statutory obligations.
The general principles as to what kind of act would entitle or justify the summary dismissal of an employee are largely settled and well established, albeit that "the resolution of this question is a matter of fact alone" in that "there is no fixed rule of law defining the degree of misconduct which will justify dismissal": Clouston & Co Ltd v Corry [1906] AC 122 at 129. Indeed it has been said that "the degree of misconduct that will justify dismissal is usually a question of fact": Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 73; [1933] HCA 8 (Blyth Chemicals).
In Blyth Chemicals, Dixon and McTiernan JJ said at 80-81: "Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found."
In Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150, Gillard J held, at [254], that: "At common law, the authorities do establish that there is an interaction between the principles of contract law justifying rescission of a contract, and the rules established by the authorities over the last 150 years in relation to the type of misconduct justifying the dismissal of an employee without notice. It cannot be denied that in some cases, the courts do speak in terms of the basic principles of contract law …, but in my opinion, it would be wrong to say, as was submitted on behalf of the plaintiff, that the right to terminate only exists where the conduct of the employee demonstrates repudiation of the contract, manifesting an intention not to perform the contractual obligations in the future. I do emphasise that many examples of conduct justifying termination would comfortably fit in with those principles. However, the authorities do establish that there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future. There may be an example of a one-off serious act of misconduct which would justify dismissal, even though the probabilities were high that it would not occur again. This may be especially so when the employee is asked to explain his conduct, and shows remorse and gives an undertaking that the conduct will not occur in the future."
The relevant principles as they have crystallised since Blyth Chemicals were summarised by Stevenson J in LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992 at [158]: "To justify dismissal, an employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract, or actual conduct which is repugnant to the relationship of employee and employer: Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [250] per Gillard J. Serious misconduct may be established where it is established that the employee's conduct was, in respect of important matters, incompatible with the fulfilment of the employee's duty or involved an opposition, or conflict between his interest and his duty to his employer or impeded the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, but the conduct of the employee must itself involve the incompatibility, conflict, or impediment or be destructive of confidence: Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ. An actual repugnance between the employee's acts and the employment relationship must be found and it is not enough that grounds for uneasiness as to future conduct arises … Summary dismissal is not justified by a mere breach of the contract of employment, as what is required is a 'radical breach of the relationship … inconsistent with its continuance': Adami v Maison de Luxe Ltd (1924) 35 CLR 143 at 151 per Isaacs ACJ. To amount to serious misconduct, the conduct must be such so as to indicate that the employee no longer intends to be bound by the contract: Adami at 155 per Gavan Duffy and Starke JJ." The decision of Stevenson J, and his Honour's summary of principle at [158], was affirmed on appeal in Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524; [2016] NSWCA 37 at [139] (Coope). In that case, Payne JA said at [140] that "a breach of contract and a failure to give full and frank disclosure and thereby avoid a conflict of interest and duty may each justify summary dismissal for serious misconduct", citing Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29 at [143]. The transgressions in that case were described by McLure P as "very serious" and ones that: "could and did destroy the trust and confidence which is essential to the employer/employee relationship. Its centrality is underscored in this case by the appellant's very senior position, his wide duties and powers, and the capacity of his misconduct to undermine the very culture which the respondent assiduously promoted."
Although Mr Eldridge was the plaintiff in the proceedings, the Council accepted that the onus of proof rested on the party seeking to rely upon the right to terminate Mr Eldridge's contract: Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701 at 729; Concut at [21]-[23]. The Council also referred to Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70, at 83-84 per Hungerford J: "… However, it is also undoubted, in my view, that where an allegation of misconduct is raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee, then the legal burden, in an evidentiary sense to establish that fact, shifts from the union to the employer: see WD & HO Wills (Australia) Ltd v Jamieson [1957] AR (NSW) 547 at 552, 553; North v Television Corporation Ltd [1976] 11 ALR 599 at 602; Flynn v JC Hutton Pty Ltd (1982) 3 IR 413 at 414; Williams v Printers Trade Services (1984) 7 IR 82 at 84; and Wallace v Deering Auto Electrics (1985) 12 IR 34 at 35. … The approach as to this shifting of the burden of proof received conceptual support in the judgment of Dixon J, as he then was, in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643, and in that passage from his Honour's judgment which said at 644: 'Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular exception defeating the right only when alleged and proved.' The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it."
Mr Eldridge's counsel drew attention to the decision of Macfarlan JA in Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30 at [33]: "Another relevant consideration is that the agreement was entered into against the background that at common law an employer's right to summarily dismiss an employee is a narrow one. It will only arise where the employee has engaged in conduct 'which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee' (Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8 at 81). Whilst parties may, by contract, confer a broader right to dismiss summarily their contract should be scrutin[s]ed carefully before concluding that they have done so." (emphasis added).
The necessarily fact-intensive nature of the inquiry is an incident of the significant threshold, of "exceptional circumstances", required to be satisfied in order justify the summary dismissal of an employee, as described by Kirby J (agreeing with Gleeson CJ, Gaudron and Gummow JJ) in Concut at [51(4)]: "It is … only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily … it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee … will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal." (emphasis added).
It is clear from these passages that a simple breach of a contract of employment will not generally in and of itself be sufficient to empower and/or to justify the summary dismissal of an employee although, to return to Coope in the Court of Appeal, the following observation of Payne JA at [147] should be noted: "Whilst it may be accepted that isolated conduct by an employee would not suffice to warrant the description 'serious misconduct' in some cases, each case turns on its own facts. Here Mr Coope was no ordinary employee. He was the joint managing director of LCM. His breach of duty and interest, which he chose not to disclose, far from being 'technical' went to the heart of LCM's business. To characterise the conduct as a 'mistake' is to trivialise what, objectively, was conduct which in my view destroyed the mutual trust and confidence between Mr Coope and LCM and warranted the description 'serious misconduct'.
What is required is the "exceptional circumstances" founded in conduct "destructive of the mutual trust between the employer and employee", taking into account the primacy of the rights of termination as they arise under the relevant contract. The relevant breaches must be "serious or persistent", suggesting in the context of the Standard Contract, that persistent breaches need not necessarily have the same degree of seriousness required of a single breach to justify summary dismissal.
Mr Eldridge's counsel also correctly drew attention to s 140(2) of the Evidence Act 1995 (NSW) and the decisions in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34, and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450; [1992] HCA 66 given the gravity of the allegations, including of dishonesty, made against Mr Eldridge. I have borne those principles in mind in reaching my conclusions.

[21]

Mr Eldridge's contentions

Two legal contentions advanced by Mr Eldridge, namely that this Court lacked jurisdiction by reason of s 486A of the Act to entertain the Council's case insofar as it involved allegations of a failure by Mr Eldridge to lodge his declaration of pecuniary interest, and that only positive acts rather than omissions could be relied upon to justify summary dismissal, have already been noted and rejected.
Mr Eldridge's principal defence in relation to the Inglewood Road Planning Proposal conflict was that he was not aware of his son's involvement in it and that, not being aware of it, he could be guilty of a failure to declare a conflict of interest and duty.
As a fall back position, it was submitted on his behalf that: (i) as General Manager, he could not vote in relation to the Inglewood Road Planning Proposal as this was a matter for Councillors; and (ii) as consideration of the Inglewood Road Planning Proposal was deferred, no serious consequences followed from the belated declaration of a conflict on 17 February 2017 in any event.
As to the failure to lodge his own Declaration of Pecuniary Interests on time, Mr Eldridge variously claimed that he was confused as to what was needed, referring to the fact that he had completed the KMP form on 25 July 2016 (see [188] above) and had not appreciated the need to file a further declaration in September 2016. He also relied on this matter in relation to a report to Council which purported to confirm that all Designated Persons had completed their Declarations.
It was also submitted on his behalf that the Declaration of Pecuniary Interest for 30 September 2016 was ultimately filed only slightly over three months after it was required, namely on 4 January 2017, and that that was not a default that warranted summary dismissal.
As to the failure to complete the declaration fully, Mr Eldridge claimed to have relied upon others such as his wife and an administrative assistant, Ms Vicki White, and also stated in his affidavit that he was of the belief that he only needed to disclose companies of which he was a director.
In relation to the allegation of unauthorised employment in relation to the Katungul project, Mr Eldridge did not claim that this work was authorised but submitted that the allegation failed "at the first hurdle" because he was not engaged for remuneration. It was also submitted on his behalf that none of the Councillors gave evidence that they would not have approved Mr Eldridge providing the assistance that he did at the Katungul project.
As to the engagement of LTL, Mr Eldridge contended that the advice sought was in relation to operational matters, that LTL confirmed that it was appropriate that Council pay for the advice, that Council did pay the account, and that the expense was properly a Council expense.
As to the matter of unauthorised expenditure, Mr Eldridge submitted that the single alleged unauthorised expenditure was not made out and could not in any event have warranted summary dismissal.
Before turning to consider each of the grounds relied upon by the Council as justifying Mr Eldridge's summary dismissal, it is first necessary to deal with questions of credit, and especially that of Mr Eldridge.

[22]

Findings as to the credit of Mr Eldridge

I formed a strongly adverse view of Mr Eldridge's credit. This was based not only on his evidence in the witness box and answers under cross-examination but was also as a result of the objective facts in the matter, in particular his claims in early 2017 to have been unaware of his son's involvement in the Inglewood Road Planning Proposal and the wealth of evidence including admissions extracted under cross-examination that revealed that not only was he aware of his son's involvement, but that he had had an active involvement himself in the work leading to the Proposal. This is considered more fully at [360]ff below, but a simple comparison of the admissions made in evidence to what he was aware of in 2015 (see [370] below) and what was said from February to May 2017 (see [364] below) reveals that he did not tell the truth to the Mayor, the Council or indeed the public in 2017 as to his awareness of his son's and his own conflict of interest.
This is even before consideration is given to the discrepancies between the ICAC Produced Minutes from 2015 and those which emerged in the course of the hearing from the Eldridge Archive. As the Council submitted, the only person to benefit from the modified versions of the minutes for 29 April, 12 June and 22 September 2015 was Mr Eldridge. The modifications which have been referred to earlier in these reasons all related to Mr Eldridge's participation in meetings and the extent of his involvement. They removed references to him being present at certain meetings including the critical meeting of September 2015 and also removed references which exposed the extent of Mr Eldridge's personal involvement. The modifications were effected on 22 February 2017, the day after Mr Eldridge issued the press release denying any knowledge of his son's involvement in the Inglewood Road Planning Proposal. That was also the day he was temporarily stood down from his position as General Manager pending an independent investigation.
Notwithstanding Mr Eldridge's denial of any involvement in or knowledge of the modification of three sets of the 2015 minutes, that denial strained credulity.
Mr Eldridge must have known of the existence of the Minutes on his archived computer server to consult it in the first place. Although Mr Eldridge originally said that he had consulted the Eldridge Archive on the Monday night following his first day of his evidence, following the production of the metadata, it became clear and he accepted that he had also consulted it on the Sunday night prior to his cross-examination having commenced: see [T. 679]. The version of the minutes on the Eldridge Archive had not been discovered in the proceedings, and no reference had been made to them as existing on a computer archive prior to Mr Eldridge making reference to them in his evidence on the second day of his cross-examination.
Mr Eldridge sought to use the minutes ultimately produced from the Eldridge Archive to raise doubts as to the authenticity or integrity of the ICAC Produced Minutes and therefore the extent of his knowledge of and involvement in events leading to the filing with Council of the Inglewood Road Planning Proposal in mid 2015.
It appeared that Mr Eldridge was not initially aware that the Council had obtained copies of the ICAC Produced Minutes from ICAC. He evidently thought that they had some connection with Mr Gray: "I don't even know where these minutes come from. They're evidenced by Mr Gray I think": [T. 419]. He had earlier said of the minutes about which he had been cross- examined the previous day that [T. 418]: "I'm not sure where these minutes come from. Last night I did some searching and I'm not comfortable that these minutes reflect the fact that I was there even though my name's there, so I can't confirm that I was at that meeting or not." (emphasis added). Later in his evidence [T. 421-422], the following exchange occurred: Q. You said this morning that after Court yesterday you undertook some research. A. I did. Q. What research did you undertake, Mr Eldridge? A. I accessed the databases that ‑ some of my archive information, limited archive information. Q. And? What did you find? A. I found something that disturbed me about these documents that have been claimed to be minutes. Q. And what was that that you found that disturbed you, Mr Eldridge? A. I just don't believe that these reflect some of the information that I seen yesterday and I leave it at that. HIS HONOUR Q. I don't think that's an answer to the question. You said something disturbed you and you were asked what it was. A. Yes, your Honour Q. Do you have an answer or - A. Yeah, yeah I do have an answer. I mean some of the information on these minutes don't reflect what I've seen on the system that I‑‑ … I seen enough to question where these minutes might have come from." (emphasis added). Still later [T. 426], Mr Eldridge said that he was "very suspicious of these minutes and what's contained within them" and that "[t]here's just differences in them. So they're not the same, and I just wonder where these ones come from? And secondly, I wonder why Mr Gray would have them?" (emphasis added).
This was the third occasion on which Mr Eldridge endeavoured to associate Mr Gray with versions of the minutes about which Mr Eldridge had been cross-examined on the first day of his evidence. It is true that copies of the ICAC Produced Minutes were annexed to Mr Gray's reply affidavit of 21 December 2020 but it is equally true, and was demonstrated by Mr Gray's third affidavit which was filed following Mr Eldridge's cross-examination together with an affidavit of Ms Caitlin Hawthorne, that the copies of the minutes Mr Gray had annexed to his reply affidavit emanated from the ICAC Produced Minutes.
Mr Eldridge's attempt to cast doubt on the authenticity of the ICAC Produced Minutes continued. On the second morning of his cross-examination, Mr Goot put to Mr Eldridge [T. 427] that "no document that you found last night does cast doubt on the authenticity of these minutes, does it?" Mr Eldridge denied this.
Once the Eldridge Archive version of the minutes had emerged and Mr Eldridge had been taken through them in cross-examination, the following exchange [T. 531] occurred: "Q. It is almost as if someone has gone through and surgically removed you from this document? [referring to the Eldridge Archive version of the minutes of 12 June 2015] A. Well, I can't say that. I don't know. It might have been someone inserted me into the document as well equally." This was clutching at straws. It entailed the proposition that someone who had access to documents held within the Eldridge businesses had, at some stage before documents were seized from those businesses by ICAC, taken three existing sets of minutes from 2015 on the Eldridge IT system in relation to Inglewood Road Estate and which did not record Mr Eldridge as having been present and did not make any reference, for example, to him suggesting to bring in more investors such as Mr Mark Fleming (Mr Fleming) into the project and falsely adding that detail to existing minutes and recording Mr Eldridge as present. This is fanciful, not least because Mr Eldridge had admitted that he had suggested to his son the need to bring in other investors and had mentioned Mr Fleming's name: see [T. 532].
Mr Eldridge's speculation that his name may have been added (falsely) to the ICAC Produced Documents before their seizure also supplies no explanation for why the three altered or modified sets of minutes produced from the Eldridge Archive are shown as having been modified some two years to 18 months after the meetings, on 22 February 2017, in circumstances when the question of Mr Eldridge's knowledge of and awareness of his son's involvement with Inglewood Road Planning Proposal was the hottest topic in Wagga Wagga, as evidenced by newspaper clippings at the time that were in evidence.
When one adds to the analysis that the only person interested in not being associated with any record of knowledge or awareness, still less personal involvement in the Inglewood Road Planning Proposal, was Mr Eldridge, I am quite unable to accept his claim to have been wholly unaware and not involved in the modification of three sets of minutes from the Eldridge Archive which excised his presence and participation in those meetings. To seek to take advantage of this material and to feign ignorance as to its provenance not only strained credibility but was positively dishonest.
Another striking example of Mr Eldridge's dishonesty was an email he sent on 12 July 2016 to his executive assistant, Ms Posselt, and Mr Gray, on the subject of a "Funeral this Thursday at Narooma" (the funeral email). This email read as follows [CB 5/3709]: "Hi Carmel [Posselt], I will need to attend a Funeral of a close family member at Narooma Thursday [14 July] this week. I will fly down so it will be down and back in one day. Can you please reschedule my appointments. Please apologise to all effected [sic] but I really must go. Did try to send my brother but he can't make it."
This email was an utter charade. It was false in every respect. No close family member had died. There was no funeral that week or at all. Although Mr Eldridge did go to Narooma, it was not for a funeral but for the purpose of inspecting the Katungul project site at Batemans Bay with Mr Fleming and Mr Silas Darby (Mr Darby) in order to consider revised plans, scoping studies and costings for the medical centre all directed towards the ultimate aim of securing payment of an outstanding consulting fee. Mr Eldridge did not "try to send his brother" to the funeral, as the email falsely stated. All of these falsehoods were admitted by Mr Eldridge after he had been shown various documents in relation to flying to Narooma on 14 July 2016 to attend to business in relation to the Katungul project. These documents included a text message from Mr Eldridge to Mr Darby who was to travel with him to the Katungul project in which Mr Eldridge said in short hand "confidential my side".
Not only were the contents of the 12 July 2016 email untrue, it was deliberately drafted to conceal the true purpose for Mr Eldridge's absence from his high-paying job as the General Manager of the Council on 14 July 2016. It was designed as a cover lest anyone ask why he was absent from the office on that day just as the instruction to Mr Darby "confidential my side" was directed towards that end. So much bespoke a consciousness on Mr Eldridge's part that he was not authorised or entitled to be doing non-Council work without the express authorisation of the Council.
When cross-examined about this email, Mr Eldridge said that it was [T. 635-636]: "an excuse that I discussed with Carmel [Posselt] and Scott [Gray] before I left because Carmel [Posselt] was concerned about the diary being full on and I said, I've just got to go, I've got to get this sorted out, tell them something, tell them anything I don't care and that's what I did, and that's exactly how it worked out. … I deny that [the email was subterfuge to create an excuse for not being present at the Council on 14 July 2016], I didn't need an excuse at the time. It was an excuse for Carmel to give her some relief about pressure in the diary, I could go at any time whenever I wanted and just say, I'm not in tomorrow, if I was sick in the morning I could ring in sick so there was no need for me to try to deceive anyone".
Mr Eldridge's electronic calendar entry for 14 July 2016 recorded that he was "at [a] funeral" for the entirety of the working day [CB 1/699]. It was put to Mr Eldridge by Mr Goot that the combination of this calendar entry and the email of 12 July 2016 exemplified "blatant dishonesty". This resulted in the following exchange [T. 640-642]: "Q: But the reason the words 'Alan at funeral' appears in the diary is because that is what you told Ms Posselt, isn't it? A: I think that's reflective of the email I sent. Q: Because if you hadn't have told Ms Posselt about the funeral, the diary would just have recorded Alan out of the office or something like that; isn't that right? A: More than likely, yes. Q: Go to page 686 if you would. That's 1 July. A: Yes. Q: That is the other day we know about your being at Batemans Bay for Katungul. A: Yes. Q: And you have Alan out of the office there. A: Yeah. Q: What I want to put to you, Mr Eldridge, is that firstly you sent the email to Ms Posselt to create the impression that you'd be attending a funeral on 14 July 2016; that's the first proposition, do you agree with that? A: I disagree with that. Q: The second proposition is that that was blatantly dishonest. … Q: Blatantly dishonest. A: I disagree with that."
I then asked Mr Eldridge the following series of questions: "Q: Mr Goot put to you a couple of questions. Mr Goot put to you the proposition that the email was blatantly dishonest, that's the email that‑‑ A: I sent to Posselt. Q: [Court book] [a]t 3709, do you have that in front of you? A: I'll find it, your Honour. Yes I have it. Q: And you said you didn't agree with Mr Goot's characterisation of it as being blatantly dishonest. Could you explain to me why you don't agree with that characterisation? A: Well the contents of it ‑ the reason I don't believe it was dishonest because I had a discussion with Gray and Posselt and they knew that I was going, I was really certifying if you like, or providing an excuse for Carmel to deal with the matter she had to deal with the diary around entries, so I don't believe it was dishonest because the parties that I was conveying it to, knew quite clearly what I was doing. Q: Is there anything else you want to say about my question? A: No, your Honour, that's it." Mr Goot then asked the following questions: "Q: You didn't tell Ms Posselt about the fact that your brother couldn't attend the funeral; did you? A: I don't remember that email and I don't why I would put that there. Q: That was just a lie; wasn't it, Mr Eldridge? A: I deny that. Q: Why do you deny it? It wasn't true; was it? There was no funeral, you now tell us, so how could your brother not attend it? A: Well it wasn't a lie. Q: You don't expect his Honour to accept that, do you? A: Well I've told the truth the best I can. Q: You didn't tell anybody you were going to Batemans Bay on 14 July; did you? A: I had a discussion with Gray and Posselt before I went. At that time Gray and Posselt knew where I was pretty much all of the time. Q: Gray and Posselt ‑ is that what you say? A: Yep."
I do not accept, still less find, that Mr Gray and Ms Posselt were aware that Mr Eldridge's email was an utterly false document. But even if they had been, that does not excuse the blatant dishonesty involved in Mr Eldridge's email. That Mr Eldridge suggested that his claim that they knew it was not true in some way excused or moderated its mendacity is further testament to his loose relationship with the truth and notions of honesty and probity. His attempt to defend or justify the email only compounded the blatant dishonesty that the email entailed.
The adverse view which I formed as to Mr Eldridge's credit was compounded by a number of aspects of Mr Eldridge's evidence whilst under cross-examination that were deeply unimpressive and undermined any confidence one could otherwise have had in the reliability of his recollections or the overall truth of his evidence. These unimpressive aspects are considered below.
First, Mr Eldridge made a number of unsuccessful attempts to cast doubt on and raise suspicion as to the provenance or integrity of documents that were not favourable to his case, particularly but not exclusively the 2015 ICAC Produced Minutes relating to Inglewood Estate. Other examples of this included: (i) the email of 16 March 2016 to Mr Conkey: see [150] above; (ii) the funeral email as discussed above which Mr Eldridge questioned the format of [T. 637] although he had earlier in his evidence described it as "an excuse for Carmel to give her some relief about pressure in the diary": [T 636].
Second, his regular attempts to distance himself from responsibility for and/or knowledge of the detail of documents which he had signed or authorised on the basis of his claim that other people had drafted them. Examples of this included: (i) the 9 June 2016 letter signed by him and sent to Mr Kell on the subject "Local Environment Plan Amendment Application, Inglewood Road, Gumly Gumly" (see [182] above) which he said he had no recollection of reading even though he had signed it and had had indirect input into drafting; (ii) his explanation of 20 February 2017 to Mayor Conkey (see [234] above) which he said was "generated by Lindsay Taylor Lawyers and some of the staff" and, in answer to the question whether it was a complete and accurate description of your knowledge of the matters giving rise to the conflict as at 20 February, said "it could have been worded a lot better": [T. 662]; and (iii) the 21 February 2017 media release (see [238] above). This exchange occurred: "Q. The words in the second paragraph of the media release which I took you to earlier, 'I was not aware of my son's involvement with the planning proposal until early 2017', I want to suggest to you was information that you provided to Dr Taylor. A. No, that was provided by Koschel I think actually. Q. By whom? A. Koschel from our media branch." When I asked Mr Eldridge how Mr Koschel could have known what his (Mr Eldridge's) state of knowledge or awareness was, he retreated, saying "[w]ell we had discussions around this. I'm not certain that Koschel did do that but I think he did input in this media release": [T. 673].
Third, his attempt, on more than one occasion, to justify unauthorised or irregular conduct by claiming that he had cleared it with others or that others had said that his conduct (or failure to act in the case of his non-lodgement of pecuniary interest declarations) was okay. Examples of this included: (i) suggested conversations with Mr Flack in relation to undertaking non-Council work and extra leave notwithstanding the terms of the Standard Contract (see [119] above); (ii) the attempt to shift responsibility for the funeral email on to Mr Gray and Ms Posselt: "that was an excuse I discussed with Carmel and Scott before I left because Carmel was concerned about the diary being full on …": [T. 635]; and (iii) his claim, made for the first time in the witness box, that Christine Priest would "take care of" the fact that the report and resolution put to the October 2016 Council meeting which stated that declarations of all designated persons had been received was not true because he had not submitted his own declaration by then. This evidence emerged as follows: "Q. At the foot of the page these words are written, 'the last day for lodgement of the current declaration of pecuniary interest returns was 30 September 2016, returns were received from ten councillors of the previous Council and all designated persons as required under the Act'; do you see that? A. Yeah. Q. That statement was simply untrue; wasn't it? A. Well I'm not sure about that. Q. Is that an honest answer? A. It is. Q. What makes you unsure about it, Mr Eldridge? A. Prior to lodging this return or this report, I had a discussion with Christine Priest. Q. With who? A. Christine Priest who was the governance person and she knew that I hadn't lodged my return, she said you've got to ‑ this report has to go in, that you've got to get it in, and I said well I haven't done mine, she said yes I know, then she said I'll take care of it, and I said okay fine. Q. Is that right? A. Yep. Q. She said I'll take care of it? A. Not of the return but the process of how we would deal with it. Q. I see, and who was going to take care of the return? A. I don't know what you mean but I assume that she‑‑ Q. What I mean is that what you're telling his Honour is that you knew that a report was going to be made to Council which said that all designated staff as required under the Act had provided their returns, that is pecuniary interest disclosure returns. You knew that that statement was untrue prior to it being made‑‑ A. Well I was under the impression there was a disclaimer to that. Q. A disclaimer? A. Disclaimer that ‑ well I don't know how Christine dealt with it but I had the discussion with her." The extraordinary feature of this evidence was that it was not mentioned by Hennessy Dowd in its detailed response to the Council's allegations on 19 May 2017 (even though the October report and resolution was one of the issues raised, including an allegation that Mr Eldridge had deliberately misled the Council in this respect); nor was it mentioned at all in Mr Eldridge's affidavit in these proceedings, again a rather extraordinary omission given the exculpatory nature of the evidence if it were true. (I note in this context that, in closing submissions, Mr Eldridge's counsel made a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 submission in relation to the Council's failure to call Ms Priest as a witness. This was an extraordinary submission in circumstances where the first relevant mention of Ms Priest in the context of what Mr Eldridge claimed she had said to him by way of reassurance was by Mr Eldridge whilst under cross-examination.)
Fourth, his claims that various statements both in contemporaneous documents and in his affidavit were "poorly worded" when they were shown to be inconsistent with or unhelpful to his case. Perhaps the most striking example of this was [59] of his affidavit which was as follows: "I accept that I did not include the named entities referred to above in the disclosures that I lodged with Council for 2015 and 2016. My understanding was my disclosure was for those companies of which I was a director. I did not understand that I was to disclose companies of which I was only a shareholder. I did not include the entities in which I had a small shareholdings as referred to above." Mr Eldridge, when under cross-examination, said about this paragraph [T. 547-548]: "Q. What you're saying in paragraph 59 in the third sentence is that you did not understand that I was to disclose companies of which I was only a shareholder. That is‑‑ A. You interpreted that way, but, in fact, I did know that. But the person that was giving me the information didn't know that, and it's probably not well‑worded, I accept, but that's ‑ I certainly knew that you had to be ‑ if you were a director and a shareholder, it was a pecuniary interest. The person who provided the information on the number of companies and conflicts I had, that was the perception, so that's the way I wrote it. If that's confusing, I apologise. HIS HONOUR Q. I'm sorry, Mr Eldridge, is your evidence that the statement in paragraph 59 of your affidavit does not represent your understanding at the time. It represents somebody else's understanding? Is that your evidence? A. Well, that was how the confusion happened, your Honour Q. Can you listen to my question? A. Yeah, sorry. Q. Is it your evidence now that notwithstanding that paragraph 59 refers to your understanding, unambiguously, it, in fact, represents somebody else's understanding‑‑ A. It's not‑‑ Q. ‑and not yours? Is that your evidence? A. Well, it's not well‑worded, your Honour, but I ‑ I understood at that time that if you're a director and a shareholder, that could be a pecuniary interest. So I haven't ‑ I haven't worded that well, I accept. Q. Well, can you answer my question? A. Yeah. So the answer is that ‑ that's‑‑ Q. What? You now say it doesn't represent your understanding at the time. It represents the understanding of somebody else, and that's what you intended to convey? A. And that's what I intended to convey. GOOT Q. Who was the somebody else? A. Vicki White. The person who prepared these documents for about 10 years. Q. Vicki White? A. Mm. Q. An employee of the company? A. Yeah. Q. Of the Eldridge Group? A. Yeah. That's how the confusion happened. So I haven't worded that well, and I apologise."
Fifth, his implied but unwarranted suggestions at impropriety such as his suggestion that the 2015 set of Inglewood Road minutes had in some way been produced by Mr Gray when they had in fact been produced by ICAC, as explained earlier in these reasons. Another example may be seen in the following exchange in relation to Ms Summerhayes' detailed notes of the Public Forum discussion in March 2016 relating to Inglewood Road and Old Narrandera Road [T. 472-473]: "Q. Can you just focus on the question. Do you accept that the notes purport to capture a conversation, or discussion, involving the planning proposals from 14 March 2016 meeting of the PNS committee? You might need to read the document. A. Well, it's put to me that way, but, yeah, if that's what Ms Summerhayes wrote, then I understand that. But I think ‑ I'm quoted here as, in general terms, what we were doing about strategic planning matters. Q. Yes. A. Not necessarily ‑ it's very conveniently put there as planning proposals for land in Inglewood, Gumly Gumly, but in general terms that was what we were doing for everything. HIS HONOUR Q. I'm sorry, what do you mean by, 'It's very conveniently put there'? A. Well, I just don't understand ‑ it's a general discussion that we've had around planning, your Honour. Q. I'm sorry, what do you mean by, 'It's very conveniently put there'? A. Well, I don't know why it would be there because‑‑ Q. Well, wouldn't it be because that was the subject matter which the author of this note - A. Yeah. I guess so. Yeah, I‑‑ Q. Wouldn't it ‑ just listen to my question. A. Sorry. Q. Wouldn't it be because that was the subject matter which the author of the note, to the best of her ability, identified as the topic of the more detailed conversations which followed? A. Yeah, I accept that, your Honour." (emphasis added).
Further examples could be given but enough has been said as to why I was unable to accept Mr Eldridge as a witness of credit.

[33]

Failure to disclose or manage personal conflicts of interest in relation to the Inglewood Road Planning Proposal

The allegations that Council had made in 2017 in relation to this matter were as set out at [252]-[253] above. The failures to disclose the conflict in writing and at meetings was alleged to have involved breaches of: (i) cl 6.1.2 of the Standard Contract because Mr Eldridge failed to act honestly and failed to exercise a reasonable degree of care and diligence in carrying out his duties and functions with respect to the management of [his] conflict of interests; (ii) cl 6.1.2 of the Standard Contract because he failed to comply with ss 4.2 and 4.12 of the Code of Conduct (see [112] above); (iii) cl 6.1.2 of the Standard Contract because he failed to comply with ss 445, 451 and 459 of the Act (see [106]-[109] above); and (iv) his duty of fidelity by failing to honesty and faithfully serve the interests of the Council.
It may be noted at the outset that there was and could be no issue that Mr Eldridge had a conflict of interest as a result of his son's pecuniary interest in the Inglewood Road Planning Proposal. He acknowledged this in the press release he caused to be issued on Council letterhead on 21 February 2017 (see [238] above) although whether or not the extent of Mr Joshua Eldridge's interest was a "commercial agency relationship with Mr Brunskill", as Hennessy Dowd put in their letter on Mr Eldridge's behalf to Council on 21 April 2017 is not clear. So much was also acknowledged in the internal direction to Council officers which was issued on 17 February 2017: see [230] above.
Mr Eldridge's claims of ignorance as to his son's involvement in the Inglewood Road Planning Proposal, not only in his affidavit evidence in the proceedings but also in the period February to May 2017, leading up to his summary dismissal, are critical to this aspect of the case.
In his affidavit evidence, Mr Eldridge said that the first time that he became aware that the Inglewood Road Planning Proposal before Council was one in which his son had a relevant interest was not until he received the email from Mr Morphet of The Daily Advertiser on 16 February 2017: see [41] and [42(b)] of Mr Eldridge's affidavit. It is important to note, however, that Mr Eldridge said in [45] of his affidavit which was in response to an affidavit filed by Mr Kell that he "was aware that [his] son had an interest in a development in the Inglewood area "but" was not aware that any planning proposal concerning the development had been submitted to Council." Earlier in his affidavit Mr Eldridge had said: "I was aware that my son, Josh was involved in a development in a portion of land in the Inglewood area. The Inglewood area land was farm land which was under consideration for development. The portion of the Inglewood area in which my son Josh had an involvement was near the Wagga Wagga Airport. This land to my recollection was between 180 and 230 acres where the preliminary work to have the land rezoned to residential zoning had been done. I understood that the owners of the land were farmers (including Graeme Brunskill) who had contacted my son to see if he could assist to develop and market the land. I recall that in or around early 2014 and well before I was employed by Council Josh asked me to run some numbers in terms of subdividing the land and the costs involved. Subsequently I had some further involvement in consideration of a proposal from Ms Kristen Kell, an urban planner whom Josh and I had met. This latter involvement was in the first part of 2015. I note that in the letter from my lawyers Hennessy Dowd to Williamson Barwick dated 19 May 2017 it states that 'Mr Eldridge was not aware that his son Joshua Eldridge had any involvement in Inglewood Wagga Pty Limited'. I was aware that my son was involved with Inglewood Wagga Pty Ltd. I was not aware that he was involved in any application that was or had been before the Council."
The evidence of statements made to Mayor Conkey, other Councillors, Dr Taylor and Hennessy Dowd by or on behalf of Mr Eldridge between February and May 2017, following the raising of questions by Mr Morphet about a conflict of interest, was as follows:

"I am not aware of this one in particular" (Mr Eldridge's verbal response to Mayor Conkey on 16 February 2017: see [216] above);
"I was not aware of my son's involvement with one of the land owners in the planning proposal until recently" (written response to Mayor Conkey): see [234] above);
"Alan said he didn't know his son was involved with a company who was also one of the owners of the gateway determination" (Mayor Conkey's diary note of 20 February 2017: see [235]);
"He did not know about it" (instructions given to Dr Taylor (see [226] above);
"I have had no involvement in the proposal" (Media Release, 21 February 2017): see [238] above;
"I was not aware of my son's involvement with the proposal until recently (Media Release, 21 February 2017: see [238] above);
"Until February 2017 (when this matter came to Mr Eldridge's attention), Mr Eldridge was not aware that his son Mr Joshua Eldridge (Joshua) had any involvement in Inglewood Estate Wagga. It follows that Mr Eldridge would not have been aware of any potential conflict of interest, even if he read the application documents … " (submission by Hennessy Dowd on behalf of Mr Eldridge: see [257] above);
"Mr Eldridge does not have any relationship with Mr Kell or AE Design Partnership" (submission by Hennessy Dowd on behalf of Mr Eldridge: see [257] above).

Much of Mr Eldridge's affidavit evidence together with the response prepared on his behalf to the Council's allegations by Hennessy Dowd in May 2017 was directed to the question as to whether or not Mr Eldridge in fact saw the Supply and Demand Study prepared by Opteon which mentioned that the instructing party was Mr Joshua Eldridge, First National Real Estate Eldridge: see [135] above.
Mr Eldridge's evidence was to the effect that he did not read every attachment to every business paper which went to the meetings of Council and the thrust of the argument made on his behalf was that it was not surprising, given the invariable size of business papers and their attachments that he did not pick up this detail. It was pointed out in his affidavit and written submissions that others, too, who read the papers did not appear to pick up the reference to Joshua Eldridge in the Supply and Demand Study.
This line of defence fell away greatly in its significance, however, in view of the evidence which emerged following the production of documents by ICAC, in May 2019, which revealed the extent of Mr Eldridge's involvement in 2015 in meetings with his son and Mr Brunskill about the Inglewood Road Estate. The Council, of course, did not have any of that material at the time of Mr Eldridge's summary dismissal nor at the time Mr Eldridge commenced these proceedings.
In view of the evidence which emerged, however, whether or not Mr Eldridge in fact saw the Supply and Demand Study which was an attachment to the PSRP-5 for the meeting of 14 March 2016 was ultimately of little significance. This is because it is apparent from the recitation of facts set out at [46]-[92] above that Mr Eldridge was, at all material times, fully aware of his son's involvement with a development initiative in relation to land at or adjacent to Inglewood Road owned by Mr Brunskill, and the intent to submit a proposal to Council. It should also be added that it is most unlikely, given his extensive involvement with the Inglewood Road project throughout 2015, that Mr Eldridge would not have continued to have conversations with his son, Joshua, about it during 2016. They had a close relationship: see [137] above. An inference a rose from Mr Joshua Eldridge's failure to give evidence that any evidence he could have given would not have assisted Mr Eldridge's case: Jones v Dunkel.
Indeed, much more than awareness on Mr Eldridge's part was established. He himself had been closely involved: as the financier on his son's side; as someone who advised on the need to garner the support of other investors; as someone with whom Mr Kell and Mr Dickson were in contact; and as someone whom both his son and Mr Brunskill looked to advise them upon and draw up legal agreements.
Although Mr Eldridge, by reference to discrepancies between certain copies of the ICAC Produced Minutes of meetings held in 2015 with those he produced from the Eldridge Archive, sought to raise an issue about the extent of his awareness and involvement in meetings with Mr Joshua Eldridge and Mr Brunskill in the course of 2015, a significant number of admissions were extracted from him in the course of his cross-examination which rendered this attempt futile. These admissions, as identified by the Council in its final written submissions, were as follows: "a. he loaned his son, Joshua Eldridge, the money to invest in the Inglewood Proposal project - that is, he had 'skin in the game', although he did not expect much of a return: T395.13-25; b. he was 'definitely' 'intimately involved' in the Inglewood Proposal, prior to its lodgement: T404.25-26; c. he was involved in the meetings that were the genesis of what became the Inglewood Proposal: T401.20-30; d. he had advised his son, including giving advice on a unit trust: T431.22-24; e. he was aware that an application to rezone the land at Inglewood Rd, Gumly Gumly, would be made with Council at some stage: T420.14-17 f. as at 6 August 2015, he knew that progress was being made for a submission of a proposal to Council: T534.34-36; g. at the time he became Interim General Manager, he knew his son had an involvement in a property at Inglewood: T372.10-25; h. the words, 'Inglewood Rd, Gumly Gumly', had he seen them, would have set off a 'red flag' for him, given his involvement: T462.27-34; and i. had he seen the words, 'Inglewood Rd, Gumly Gumly' next to Tristan Kell's name, he would have connected the Inglewood Proposal to the project his son was involved in: T508.17-28; j. the onus was on him to identify the conflict of interest and take appropriate steps to manage it: T353.39-41; and k. his son's involvement in the Inglewood Proposal was a conflict of interest: T360.17-29."

[34]

Pecuniary interest disclosures

One of the reasons that I have emphasised earlier in this judgment Mr Eldridge's extensive experience and qualifications prior to commencing his role as General Manager of the Council was that one would readily expect a man with this record to be acutely aware in a public sector environment of the importance of corporate governance and of complying with statutory requirements as to disclosure and management of conflicts of interest. That experience should only have been reinforced by his experience as Chair of the Council's Audit and Risk Committee between 2009 and 2015, during which he was required to make disclosures of his pecuniary interests.
The Council's case based on failure to disclose pecuniary interests had four aspects to it, namely that Mr Eldridge: "a. Failed to lodge a Disclosure of Pecuniary Interests Return 2016 by 30 September 2016, for the period ending 30 June 2016 in breach of cll 6.1.2(o) and 6.1.4 of the Employment Contract and s 449 of the [Act]; b. Misled Council on 25 October 2016 by approving a Report for submission to the Ordinary Meeting of Council on 31 October 2016 which falsely stated that Disclosure of Pecuniary Interest Returns had been received by all Designated Persons as required under the [Act] in breach of cll 6.1.2(m) and 6.1.2(n) of the Employment Contract; c. Lodged a Disclosure of Pecuniary Interest Return 2015 with Council on 26 October 2015, which failed to disclose interests in three companies, including E Properties Wagga Pty Ltd (E Properties), which was a Disclosure that he knew or ought reasonably to have known was false or misleading in a material particular, in breach of cll 6.1.2(m) and (o), 6.1.2(n), 6.1.4 of the Employment Contract and ss 445 and 449(1)(A) of the [Act]"; d. Lodged a Disclosure of Pecuniary Interest Return 2016 with Council on 4 January 2017, which failed to disclose interests in three companies, including E Properties Wagga Pty Ltd (E Properties), which was a Disclosure that he knew or ought reasonably to have known was false or misleading in a material particular, in breach of cll 6.1.2(m) and (o), 6.1.2(n), 6.1.4 of the Employment Contract and ss 445 and 449(1)(A) of the [Act] …"
It is not in dispute that Mr Eldridge was late in the lodging of his Disclosure of Pecuniary Interest Return 2015 by a period of some 26 days. The reasons for it were not explored in evidence.
It should also be noted that the short delay in the lodging of this return occurred at a time when Mr Eldridge was Acting General Manager of the Council. He did not become General Manager of the Council until almost 6 months later. The circumstances and timing of his lodgement of the Declaration of Pecuniary Interest Return for 2015 was or must be taken to have been known to the Council by the time he took up his permanent position as General Manager in April 2016. A relatively brief delay in the filing of a pecuniary interest return some 6 months earlier could not have amounted to a breach, let alone a serious breach of the contract of employment ultimately terminated by the Council in May 2017.
Moreover, insofar as there was a breach of his employment obligations as Acting General Manager by reason of late lodgement of the Declaration of Pecuniary Interest Return in October 2015, that breach must be taken to have been waived when Mr Eldridge was offered and took up his permanent position in April 2016.
The delay in lodging his Declaration of Pecuniary Interest Return for 2016 was more pronounced. It was lodged more than three months after it was legally required to have been lodged but, in truth, it had been sought by officers of the Council for a longer period than that: see [191]-[194] above.
The evidence disclosed that, despite being given plenty of time prior to 30 September 2016 to complete it and despite being given numerous follow-ups, it was not until 4 January 2017 when Ms Hensley fronted Mr Eldridge about the matter that Mr Eldridge finally completed it: see [205] above.
Mr Eldridge's explanation for the late filing of this report was, first, that he thought that the Key Management Personnel Declaration lodged with the Council on 26 July 2016 satisfied his disclosure obligations; secondly, that he only recalled one follow up in late November 2016 and at the time he was busy with Council business and was waiting on information from Ms Vicky White "to advise me of the companies [of] which I was still a director"; and, thirdly, he complied with his obligation to complete the form when Ms Hensley raised it with him in January 2017.
Again, I am not able to accept Mr Eldridge's evidence and explanation. There were at least three clear communications to him in respect of the importance of, and the need to complete, the Declaration of Pecuniary Interest Disclosure in July and August 2016: see [191]-[193] above. The importance was only reinforced by the form attached to Mr Richardson's memorandum of 9 August 2016. There were also other reminders to Mr Eldridge but, for whatever reason, he did not complete the Declaration, and this refusal to do so continued until at least late November 2016. Even then, he in effect delegated its completion to his wife, and there it remained for a further six or seven weeks. It is to be emphasised that the Council's Code provided that the onus was on Mr Eldridge "to identify a conflict of interest and take the appropriate action to manage the conflict in favour of your public duty" (cl 4.2).
The failure by the General Manager of Council to complete a Declaration of Pecuniary Interest in the face of numerous requests to do so and reminders from his staff represented a serious and persistent breach not only of Mr Eldridge's contractual obligations but also of his statutory obligations under the Act. It was also an appalling example to set to the staff which he led. At its most benign, it showed a brazen disregard for the importance of governance within the Council. It bespoke an attitude that mandatory statutory obligations were not important. Members of Council were entitled, in my opinion, to regard the sustained failure to lodge this Declaration with the utmost seriousness. At the very least when taken in conjunction with the two matters to which I am about to turn, that breach was sufficiently serious to warrant Mr Eldridge's summary dismissal. Alternatively, it was a "persistent" breach which, under cl 10.4.1(a) of the Standard Contract, the Council was entitled to act upon.
When this breach and the two further breaches dealt with immediately below are added to that in relation to Inglewood Road, Mr Eldridge's claim to the effect that his summary dismissal by the Council was not justified is, in my opinion, quite untenable. The position is compounded further when regard is had to Mr Eldridge's ongoing involvement in the Katungul project, also dealt with below.
The next aspect of the Council's case concerned with disclosure of pecuniary interest relates to Mr Eldridge's failure to disclose interests in three companies in his belated Disclosures of Pecuniary Interest Returns for 2015 and 2016.
It is not in issue that Mr Eldridge did not disclose that he had a shareholding in E Properties, Allante, and IPAAC for the financial years 2015 and 2016.
On Mr Eldridge's affidavit evidence, these shareholdings were not disclosed as he understood that he was not required to make disclosure of companies in which he was solely a shareholder, as opposed to a director and shareholder [CB 1/111 at [59]; T. 546-549]. Mr Eldridge also gave evidence that he did not include a reference to the entities referred to at [392] above because his shareholdings were "small shareholdings". [T. 549; CB 1/111 at [59]].
Under cross-examination, Mr Eldridge attempted to recant this position on the basis that the relevant paragraph of his affidavit was "not well-worded" (see [331] above] whilst maintaining that the understanding contained in his affidavit evidence was not incorrect [T. 549]. When pressed further as to his understanding of his disclosure obligations as at 4 January 2017, Mr Eldridge accepted that "because he was the sole shareholder of [E Properties] he was obliged to disclose his interest in that company" [T. 551]. As has already been noted, Mr Eldridge was the beneficial owner of all 10 of the issued shares in E Properties at all material times. He had ceased to be a director and secretary of the company in October 2013. His son, Mr Joshua Eldridge, became a director of the company in 2011 and was the sole director following his father's resignation as a director in 2013.
It beggars belief that Mr Eldridge had forgotten or overlooked his ownership of the First National Real Estate Eldridge business through E Properties in 2015-2016 when he belatedly came to complete his Pecuniary Interest Declarations for 2015 and 2016. He had been involved in that business and was pictured on a download of its website from an unidentified point in time. The potential conflict of interest between a General Manager of a Council and a prominent real estate agency of a major regional city is obvious.
Further, at [60] of his affidavit, Mr Eldridge said that he had a shareholding in E Properties "because my wife Barbara and I had loaned some monies to assist [Joshua's] business and in return I received the shares." This explanation does not withstand scrutiny. The company search of E-Properties which was in evidence disclosed that Mr Eldridge acquired his shareholding in that company on 13 May 2005 and became a director on that date. Mr Joshua Eldridge was then only 17 years old. Moreover, the shares which Mr Eldridge acquired were not acquired from his son as security for the loan to which Mr Eldridge referred in his affidavit; rather, they were acquired from the previous owners of the company, Mr Stewart and Mrs Anne Crutchett.
Given Mr Eldridge's unsatisfactory evidence in relation to thinking that he only had to disclose companies of which he was a director and not a shareholder - a rather extraordinary claim for someone said to be as experienced as he was - and given his recantation of that evidence in the witness box, the Court is left with no satisfactory or convincing explanation as to why Mr Eldridge's interest in E Properties was not disclosed. The non-disclosure of this interest in both 2015 and 2016 was serious. It made a mockery of the Council's disclosure regime. Even if the non-disclosure was not deliberate, it still remained very serious. It showed that Mr Eldridge treated his disclosure obligations with casual disdain.
In relation to Allante, at all material times, Mr Eldridge beneficially owned 76 of 100 shares in the company. This was not a "small shareholding". Allante was an insurance company. As with E Properties, Mr Eldridge had ceased to be a director and secretary of the company in October 2013. Its remaining director was Mr Michael Eldridge, another son, who had been a director of Allante since 2005. He was also the holder of the balance of the shares in the company.
As with E Properties, Mr Eldridge deposed to having received his shares in Allante following the provision of a loan to Mr Michael Eldridge to assist him in starting and operating his insurance business [CB 1/111-112 at [60]]. This was said to represent the extent of Mr Eldridge's interest in Allante, as he gave evidence that he "had no involvement in the day to day operations" of the company nor did he receive any dividends or income from it. He was not challenged in respect of this evidence.
Unlike E Properties, Mr Eldridge's interest as a majority owner of an insurance business may not have presented quite so obvious a conflict or potential conflict as indirect ownership of a real estate franchise. That having been said, completion of the Declaration of Pecuniary Interest required reference to Allante to have been disclosed.
In relation to IPAAC, no evidence was tendered as to the size or proportion of Mr Eldridge's shareholding in the company. There was a document in evidence prepared by the Commonwealth Office of the Registrar of Indigenous Corporations and titled "General report" in respect of IPAAC for the financial year 2015 [CB 2/1003]. This document recorded that Mr Eldridge was one of seven concurrent directors and members of the company, among whom was Mr Joshua Eldridge, Mr Michael Eldridge and Mr Colin Duff. This general report also listed Mr Eldridge as the company secretary and IPAAC's "contact person" [CB 2/1004]. Mr Eldridge gave evidence that his interest in IPAAC was for a benevolent community purpose as it was "a charity basically", being a non-government organisation listed under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) [CB 1/111-112 at [60]; T. 554]. This was followed by evidence that, as far as Mr Eldridge was aware when preparing his disclosures, he "actually [did not] have to declare [his] shareholdings in an unlisted public company" [T. 554]. As to the extent of his involvement with IPAAC, Mr Eldridge gave evidence that [CB 1/112 at [62]]: (i) IPAAC is an Aboriginal Corporation which aims to promote Aboriginal artists from a low socio-economic background; (ii) he sat on the company's board on a pro bono basis; and (iii) he never received income from IPAAC and, as at 9 October 2020, had not had any involvement in its day to day operations for many years.
In light of claims to the effect that his involvement in the Katungul project was pro bono, claims that I reject for reasons set out below, I have some difficulty accepting Mr Eldridge's assertions at face value. Given the paucity of evidence adduced about IPAAC and the lack of challenge to Mr Eldridge's evidence, however, the non-disclosure of his interests in IPAAC and Allante were not such that, viewed in isolation, would have justified summary dismissal.
The next aspect of the Council's case in relation to pecuniary interest relates to an Annual Disclosure of Pecuniary Interests Returns Report tabled at an Ordinary Meeting of Council on 31 October 2016, which stated that declarations had been received by all designated persons by the relevant deadline of 30 September 2016: see [195] above.
The facts in relation to this aspect of the case have been set out in some detail at [195]-[197] above. Reference should also be made to Mr Eldridge's attempt to cast responsibility for this matter on Ms Priest. I have dealt with that aspect of his evidence in the section of this judgment dealing with Mr Eldridge's credit: see [330] above.
Mr Eldridge's affidavit evidence dealt with this matter very briefly. It was to the effect that "in approving the report to Council on 31 October 2016, [he] believed at the time that he had lodged, as a designated person, the return required by the Act". This was a reference to the Key Management Personnel Declaration he had lodged with Council on 25 July 2016. One major difficulty with this evidence is that it was quite inconsistent with the evidence, given for the first time in the witness box, to the effect that Ms Priest would look after the fact that he had not completed his Declaration of Pecuniary Interest at the time. That evidence is also inconsistent with Ms Hensley's file note account of Mr Eldridge's insistence that the report go to Council even though he had not completed his Disclosure (see [205] above), and, also her account of what Mr Eldridge had explained to her on 4 January 2017 was the reason for his late compliance: see [205] above.
Whilst Mr Eldridge maintained at various points in his evidence that he did not read every page of every report which went to the Council and relied upon others to assist him in the review of documents to go to the Council. I am comfortably satisfied that Mr Eldridge was aware that the Annual Disclosure of Pecuniary Interests Returns Report for which he was identified as the responsible director (see [195] above) contained a statement that he knew was incorrect. This was a most serious breach of his obligations.

[35]

Engagement in outside employment without the knowledge or approval of the Council

The Council also alleges that Mr Eldridge engaged in outside employment without the approval of the Council, contrary to cl 6.1.2(k) of the Standard Contract, which required Mr Eldridge not to engage: "for remuneration, in private employment or contract work outside the service of Council without the approval of Council."
This aspect of the Council's case relates to Mr Eldridge's alleged continued participation in what was referred to as the "Katungul project". The "Katungul project" was a reference to the renovation of the Katungul medical centre at Batemans Bay by ICG Constructions Pty Ltd (ICG). The medical centre was to be owned and operated by KAC, which "provides culturally appropriate health care to Aboriginal and Torres Strait Islander communities on the Far South Coast of NSW … from Eden to Batemans Bay".
The Council alleged that during his employment as General Manager, Mr Eldridge: (i) remained involved in the "Katungul project"; (ii) attended meetings regarding the project; (iii) represented himself and/or allowed himself to be represented as the project manager for the project; (iv) attended to matters concerning the project during times when he was contractually required to provide services to the Council; and (v) sought to procure payment for his involvement in the "Katungul" project.
These allegations are sustained and it was a serious breach of Mr Eldridge's contractual obligations to undertake the activities alleged by the Council.
In order to make good this conclusion, it is necessary to set out in some detail the evidence concerning Mr Eldridge's ongoing involvement in the Katungul project during his tenure as Acting General Manager and General Manager of the Council.
The "Katungul project" was conceived at a meeting of the board of KAC (of which Mr Eldridge was, at the time, a director) on 30 April 2014, at which a resolution was passed to proceed with the purchase of a property at Batemans Bay for the purposes of the proposed medical clinic. This resolution provided for the following [CB 2/953]: "The directors resolve to: ● make a conditional offer (subject to normal checks and financial approvals) on premises at 1 Old Pacific Hwy, Batemans Bay as shown to us on the Elders Real Estate - Batemans Bay website. We the directors note that the unofficial asking price is $1 million. … ● Mr Alan Eldridge be engaged to oversight the acquisition and establishment of the clinic as project manager." (emphasis added).
The project was undertaken by ICG. A contract was executed between ICG and KAC in respect of the Katungul project on 25 November 2015 [CB 2/1216]. The contract provided for project works to commence 1 December 2015 at a cost of $363,744, with a 50% deposit to be paid prior to the commencement of works.
The Managing Director of ICG was Mr Fleming (the same Mr Fleming who was noted as a potential investor in the Inglewood Estate development - see [83] above) and Mr Darby was originally employed as in-house Project Manager. Until 23 October 2015, Mr Eldridge was a Director of ICG and served as Chair of the board. The minutes of the ICG board meeting of 23 October 2015, taken by Ms Vickie Newton (Ms Newton) (who was also the Chief Financial Officer of the Eldridge Group), recorded that Mr Fleming, Mr Darby and Mr Eldridge were in attendance and, under the heading "ICG Board roles", that [CB 2/1139]: "3.1 Alan Eldridge has formally resigned as a director following his appointment as General Manager of the Wagga Wagga City council. A new chairperson will need to be appointed. 3.2 Discussion on company goals to be delayed. 3.3 Alan indicated that he is happy to continue a consulting role with the company however he will nominate a successor to fill this position and receive his shareholding …" (emphasis added).
In or around October 2015, Mr Darby also resolved to resign his role at and directorship of ICG, and to transfer his shareholding in the company. Mr Darby recalled completing this course of action in April 2016 by entering into a deed with ICG, Mr Eldridge and E Holdings Pty Ltd (a company controlled by Mr Eldridge) to transfer his shareholding and record the formal resignation of his directorship [CB 1/160]. This deed was in evidence [CB 4/2701].
It was Mr Darby's understanding that Mr Eldridge had entered into a similar deed at or around the same time, as "it was discussed that [Mr Eldridge] would be subject to the same arrangement in exiting [ICG] as I was and I was told by [Mr Fleming] that [Mr Eldridge] was to enter into a deed with [ICG] on the same day" [CB 1/160]. This deed was not in evidence.
Between 22 January 2016 and 14 March 2016, a series of nine contract variation invoices was sent from ICG to KAC for various works such as a "new fire escape passage to back office" [CB 2/871] and "new gates and alterations to walkway". The total cost of these variations came to $30,862.
On 16 February 2016, Mr Eldridge sent an email from his Council address ( ) to Mr Fleming, Mr Darby and Ms Newton as follows, on the subject of the "Katungal [sic] Monies" [CB 2/1252]: "Just reaffirming what is the agreed proceeded [scil. procedure] re Katungal monies. The Katungal monies that are in the ICG bank accounts are to be only used for expenses against the Works undertaken for the Katungul project. Excluding the net agreed monies of $15,000 that will be profit attributed to ICG. If we need to make payments to creditors etc as agreed we are not able to use these funds and those payments will need to be made from other progress claims. Can I please be provided with an up to date detailed project statement outlining income and expenses as soon as possible." This email was signed off: "Alan Eldridge General Manager City of Wagga Wagga …"
During February 2016, Mr Christopher Cresp (Mr Cresp) was contracted by KAC to manage its operations, which required completion of the construction of the medical centre at Batemans Bay. Mr Cresp served as the Acting Chief Executive Officer of KAC in the period from March-October 2016. Soon after his arrival at KAC, Mr Cresp formed the view that the construction of the medical centre was "not proceeding on time", that it was incomplete and that "there were defects with the work" [CB 1/1247].
By email sent on 9 March 2016, Mr Cresp sought clarification from Mr Eldridge (at his Eldridge Group email address) as to the status of the project, having been informed previously by the directors of KAC that he was the project manager. The email read as follows [CB 3/2524]: "Good afternoon Alan. My name is Christopher Cresp working as the Acting CEO of Katungul and I would like to make some inquiries regarding the Batemans Bay clinic. I understand that you are the appointed project manager of this renovation project. The information I am seeking is outlined in the dot points below. ● The Batemans Bay Budget building renovations (do you have one, is there one and if so could you send me a copy please) ● What has been approved by the board to date for Batemans Bay ● What is left to pay including your management charges so that we can budget accordingly ● Were furnishings included in the pricing ● What is the completion date ● Are you planning another site visit I require this information so that I can update the Directors and staff on the progress of the work and so I have a timeframe to commence recruitment into the additional positions that will be required. I thank you for your time and effort afforded to me with this email and look forward to your early response." (emphasis added).
Mr Eldridge replied promptly that same afternoon, stating that he was "happy to have a discussion" with Mr Cresp and consequently requesting his mobile phone number [CB 3/2524]. He did not take issue with Mr Cresp's stated understanding that he, Mr Eldridge, was the "appointed project manager of this renovation project" nor did he suggest that none of his "management charges" were outstanding or still to be invoiced.
The following week, on 15 March 2016, Ms Newton replied to Mr Cresp's inquiries (with her email also addressed to Mr Eldridge) stating that she had "spoken to Alan [Eldridge] and Silas [Darby] from ICG", and that she had "the following information for you": "● The Batemans Bay Budget building renovations (do you have one, is there one and if so could you send me a copy please) - I have a copy of the contract which I have attached here for you. The budget was $363,744 of which $181,872 has been paid. An invoice for $120K has been sent which is the next progress payment for the job and that is due for payment now. ● What has been approved by the board to date for Batemans Bay - The board have approved the initial payment of $181,872. ● What is left to pay including your management charges so that we can budget accordingly - The balance of $181,872 plus the variations of $30,862 is owing to ICG. The dental clinic costs will be in addition to this. Alan has been paid $15K of the agreed $25K management fee at this stage. ● Were furnishings included in the pricing - see attached contract ● What is the completion date - We anticipate completion in early April however with the dental clinic now under discussion this may change. ● Are you planning another site visit - Yes Alan is planning another visit and will contact you to arrange a suitable time." (emboldening in original; italics added).
On 17 March 2016, Ms Kristina Elward (Ms Elward) of Elward Interiors sought confirmation from Mr Cresp as to invoicing details for design work undertaken by her firm in respect of the Katungul medical centre. That same day, Mr Cresp sent the following reply to Ms Elward and to Mr Eldridge [CB 4/2601]: "Alan Eldridge is the approved Project Manager for this renovating and building project for the Katungul organisation. My apologies for not telling you this on Monday when we were onsite in Batemans Bay. I have included his email address for your information and for you to contact him on how best to proceed where payments need to be made. With any of your billing please include both Katungul and Alan Eldridge." (emphasis added).
The explicit reference to Mr Eldridge as the Katungul "Project Manager" in Mr Cresp's email was repeated in the minutes of the meeting of the Directors of KAC on 23 March 2016 [CB 4/2605], which recorded the following in respect of the "Batemans Bay Clinic Renovation update" provided by Mr Eldridge to the Directors: "A brief discussion between the Directors and the Acting CEO about the progress of the Batemans Bay Clinic before inviting Alan Eldridge (Project manager) to give an update. Alan Eldridge proceeded to give an update and answer any questions from the Directors. Briefly Alan Eldridge described some issues that impacted on the slow start to the project however the project was near to completion … Alan Eldridge advised the Directors that the Dental clinic is a specialized [sic] fitout. Acting CEO advised that he was awaiting a quote from a firm that specialize [sic] in this type of work. … ● Dental clinic to be done by an external specialist provider. … ● Handover at the end of the first week of April 2016. … ● Alan Eldridge to investigate the electrical capacity to see if can support the Dental Clinic and report back to Directors. ● Alan Eldridge to investigate the issue of all the air conditioners to ensure that they are serviced and fit to be used and report back to Directors. Acting CEO advised that there are split air conditioners in the Moruya storage unit that can be used if any of them need to be replaced. … Motion: To acknowledge and accept invoice 1332 from ICG Construction Group ($120,666.10) and to approve payment as a progress payment for the Batemans Bay clinic renovations … Accepted. … Alan Eldridge advised that Vicki Newton will provide an extensive up to date progress report (due next week); and that a final completion report would be done and sent to the Directors. … Alan Eldridge left the meeting and was thanked for his face to face report to the Directors." (emphasis added).
On 6 April 2016, a sub-contract in respect of the Katungul project was executed between ICG and Australian Rural Accounting Services Pty Ltd (ARAS) [CB 4/2619], which was a member of the Eldridge Group at all relevant times [CB 5/3840]. Mr Eldridge signed the agreement on behalf of ARAS, whilst Mr Fleming was the signatory for ICG. The document was also witnessed by Mr Darby on behalf of ICG, who recalled experiencing a degree of confusion at the specific form of the contract, which was ordinarily used for sub-contractors, given that he understood ICG to be "subcontracting the entire contract to [Mr Eldridge]" [CB 1/160]. Ms Posselt witnessed the document on behalf of ARAS.
The consideration for the sub-contract was $171,225.73 (being the value of the head contract minus the $192,518.27 already received by ICG), and specified the following services to be provided by ARAS under the heading "Scope of Work" [CB 4/2623]: "The scope of the work shall include, but not be limited to, all of the works required to alter the existing Building including subdivision of open space into doctors rooms & surgeries, including BCA upgrades to division wall, staircase & amenities, a new accessibility lift is also being installed as part of the upgrade all in accordance with the Specification and Drawings, as well as: 1) Provision for all tests and certificates required by the relevant authorities. Including occupation certificate and building surveyor report. 2) Allow to comply with all site safety measures and incur any costs associated with rectification. 3) Remove all surplus material from site. 4) Allow to replace or make good any damage to surrounding structures during the course of their works. 5) Provide all necessary staff and equipment to complete structural contract in-line with current project programme. 6) All associated works required to provide a certified, acceptable workmanship. 7) Provide warranty for all items supplied and workmanship. 8) All costs including freight, delivery, loading and unloading. 9) Coordinate with other trades working at the same area. 10) Coordinate with other trades for location of openings. 11) Provide as installed certified drawings on completion and Operational Maintenance Manuals … of final payment."
Ultimately, the sub-contract resulted in ARAS bearing the entirety of the commercial risk in respect of the Katungul project, through its assumption of responsibility for the delivery of construction and engineering services.
The following day, on 7 April 2016, KAC received a tax invoice from AIBS in the sum of $10,000 plus GST, totalling $11,000, itemised as "professional fees for project management services for the Batemans Bay Clinic" [CB 4/2700]. AIBS was a company of which Mr Eldridge was the sole director and 100% owner [CB 4/2700A]. The services for which KAC was invoiced were said to include "meet[ings] with Board and management", financial planning and reporting, the investigation of property options, the facilitation of stakeholder meetings, "oversee[ing] the construction company engaged to fit out the new building for proper purpose", and "conduct[ing] final inspection prior to handover". It may be readily inferred that $10,000 referred to in this invoice corresponded to the balance of the "agreed $25,000 management fee" of which "Alan has been paid $15,000" referred to by Ms Newton in her email to Messrs Cresp and Eldridge on 15 March 2016: see [422] above.
Upon receipt, Mr Cresp refused to pay the invoice, as he considered that the project was "nowhere near complete" as at that date. There had certainly been no final inspection or handover.
In his affidavit sworn on 21 December 2020, Mr Cresp recalled encountering Mr Eldridge at the KAC offices on or about 1 July 2016, by which point Mr Cresp had been appointed as KAC's Acting CEO. According to Mr Cresp, whose evidence I accept generally and prefer to the extent it was put in issue by Mr Eldridge, Mr Eldridge presented as agitated and stated that he was "here [at KAC] to discuss the payment of our bill" [CB 1/248]. This was plainly a reference to the invoice of 7 April 2016 which remained unpaid as at the date of Mr Eldridge's visit. In response, Mr Cresp offered to conduct a "quiet meeting" with Mr Eldridge in the KAC boardroom. It was agreed that they would attend the project site together "to go through the defects".
This site visit was recorded in a series of 33 photographs taken on Mr Eldridge's mobile phone, in which certain defects requiring additional work were identified [CB 5/3663-3694]. Mr Eldridge's Council electronic calendar entry recorded him as "out of the office" on 1 July 2016 for the entirety of the working day [CB 1/685]. On Mr Cresp's evidence, the site visit was followed by a coffee meeting with Mr Eldridge at a nearby café, during which the following exchange occurred in response to a reference by Mr Eldridge to Mr Cresp "coming by Wagga Council" [CB 1/249]: "CRESP: What are you talking about? ELDRIDGE: I am the general manager of Wagga Council. CRESP: Well, apart from the conflict how can you do that and run this project? ELDRIDGE: I am the project manager and I remain the project manager."
Giving oral evidence in chief, Mr Eldridge indicated that he could not recall this conversation taking place, although he acknowledged that he did conduct a site visit with Mr Cresp on 1 July 2016. Later, when under cross-examination and pressed by Mr Goot as to whether he said words to the effect of "I am the project manager and I remain the project manager", Mr Eldridge denied having said such words and stated that he was not the project manager of the Katungul medical centre [T. 337].
In respect of the coffee meeting with Mr Cresp, however, he stated that he was absolutely sure that "no such conversation occurred". When it was drawn to Mr Eldridge's attention by Mr Goot that his evidence-in-chief was to the effect that he could not recall the conversation or aspects thereof, the following exchange occurred [T. 627-628]: "Q: And do you recall that the evidence you gave on Monday morning was that you did not recall this conversation or aspects of this conversation that I've just put to you? A: I don't deny that's what I said. Q: What enables you to say on Thursday that you absolutely deny this conversation when you couldn't recall it on Monday? A: I think that's just a play on words, the conversation didn't happen so I don't recall it happening. … Q: And Mr Eldridge you were the project manager having been appointed in 2014 of this project? A: I deny that."
The meeting between Mr Eldridge and Mr Cresp on 1 July 2016 resulted in a working agreement between the parties as to the necessary repairs to be carried out on the site, which was recorded in the following email sent by Mr Cresp to Mr Eldridge (at his Eldridge Group email address) on 4 July 2016, with Ms Newton, Ms Joanne Grant (Ms Grant) (who was to become the operational manager of the medical centre) and Mr Darby copied in [CB 5/3696]: "The following is a list of work required to be done before the opening of the Batemans bay clinic. A site visit by Alan Eldridge (1/7/2016) and the Katungul CEO have agreed that the following work needs to be carried out. 1. Clear seal the tiled floors, repair any damaged grout areas, reception and toilets. Contractor. 2. Plumber to fix the grey water pump as sinks are blocking up. Replace or repair pump and find a better solution to the problem. Contractor. 3. Reception desk is to [sic] high. To build a raised platform so that seated staff members can see over it. This would be easier than shortening the desk. ?? Shared cost 4. Grout and seal tiles and paint the floors of the wet areas with non slip paint. Remove shower plumbing from the middle shower. Contractor The toilets currently have wall tiles as floor tiles (unacceptable) however by grouting, sealing and painting them they meet infection control standards. 5. Check toilets as they are not emptying properly. 6. Upper floor to have balustrade around all of the open low wall area. Katungul. 7. Upstairs and downstairs fire doors to have a bar opening system. 8. All stairways to have a gate top and bottom so that children cannot access the stairs. Contractor/Katungul 9. Window sill in the staff room to be replaced with waterproof alternative. Katungul 10. Staff toilet to have privacy wall in front of it. Katungul 11. All sinks to be upgraded to stainless deeper health style. Please check before installing with CEO so that they comply. Contractor/Katungul 12. All splash backs to sinks to be made bigger and wider and sealed around the edges. Contractor 13. Lift doors not operating properly. Contractor 14. Lino floor covering in waiting area to be completed properly. Contractor 15. More fire extinguishers upstairs and downstairs. One the lift in case of fire in the power box. Katungul 16. Check all doors and gates have door jams to prevent them from damaging the walls."
The inclusion of "Contractor", "Katungul" or the combination thereof after a particular item of repair work indicated the party responsible for bearing the relevant costs. Mr Cresp concluded his email by requesting an indication from Mr Eldridge as to when the works were likely to be commenced and the subsequent timeline for their completion. Two further items of repair work were added by Ms Grant in an email sent later during the morning of 4 July 2016 [CB 5/3696].
Four days passed without a response from Mr Eldridge, prompting a reminder from Mr Cresp, by way of email to Mr Eldridge and ICG on 8 July 2016, that it had been one week since his previous site visit with the "project manager" (i.e. Mr Eldridge), despite which the repair works highlighted in the email at [426] above remained outstanding in addition to the following issues which contributed cumulatively to the project being "well overdue with continuing expenses being incurred by Katungul" [CB 5/3698]: "● Staff employed to work at the facility ● Retro fitting electrical and data points ● No income being produced because of a non operational facility ● The continuing delays are having a negative effect on staff morale and the image of Katungul with the public and future users of the service. ● I have already lost one valuable staff member because of the delays ● Cannot recruit staff i.e. Doctor when I do not have a firm satisfactory completion date ● Recruiting is expensive and time consuming and another cost to Katungul. ● Planning and coordination for the opening ceremony cannot be done which is frustrating. ● Additionally there will be added costs for some of the remediation work. I want this project treated with the upmost urgency so that we have a 'fit for purpose' functional facility".
Mr Eldridge responded to this email on the evening of 8 July 2016 as follows [CB 5/3698]: "I am not sure if I understand your email. I did meet with you on site last week 1st July and we agreed to the following: There were a number of issues identified, as discussed with you most of these uses were not in line with you most of these uses were not in line with the current obligations or scope and contract that is in place with the builder. I took photos of the areas in question and at your request you were going to send the description of the works on to me so I could talk to builder about re-scoping and costing any planned working going forward. You sent through the works any [sic] also gave your opinion around whom was responsible, but your opinion is clearly not reflected of what is in the contract or are the obligations of the builder. As noted Silas Darby emailed you on the 4th and outlined reasonably what the obligations of the builder [sic] and I agree with his assessment. As just discussed I am happy to ensure that everyone completes what was agreed and if you acknowledge that the works require re-scoping I shall have Silas reinspect the situation and do up a specs and costings." (emphasis added).
Mr Eldridge was cross-examined on this email, and it was put to him that its contents demonstrated that he was acting in the capacity of project manager. This was denied and rebutted by Mr Eldridge with the assertion that he was "trying to resolve a conflict" [T. 630]. I do not accept Mr Eldridge's attempted characterisation of his involvement. The contemporaneous documents speak loudly and clearly against his assertion as to the role he was playing, including the fact that a number of those documents identified him as the project manager, a description he did not take issue with at the time. Objectively speaking, also, the correspondence and other documents referred to above, in particular the KAC minutes of 23 March 2016, are entirely consistent with him providing project management services.
When queried as to why he did not consider that his role as General Manager of the Council precluded his de facto management of the Katungul project, Mr Eldridge implored Mr Goot to "keep[] in mind that [KAC] is a benevolent institution, it's an Aboriginal organisation … [t]hat's important, remember". This was self-serving, and non-responsive. To the extent that both in this response and in his affidavit, Mr Eldridge was suggesting or seeking to suggest that whatever work he was doing was pro bono, that characterisation was also not correct. The emails of 9 and 15 March 2016 and the invoice of 7 April 2016 rebut any such suggestion. Notwithstanding being taken to these documents in cross-examination, Mr Eldridge maintained his denial that he was charging KAC for his project management services [T. 631].
Having stated in his email of 8 July 2016 that he would engage Mr Darby to prepare revised specifications and costings for the works necessary to complete the Katungul project (see [437] above), Mr Eldridge received a text message from Mr Cresp on 10 July 2016 which appeared to accede to this course of action, as Mr Cresp stated that he was "[h]appy to work with Silas [Darby] to see what falls under his domain. Thursday [14 July 2016] is good for me" [CB 6/5332].
On the morning of Tuesday 12 July 2016, Mr Eldridge sent a reminder to Mr Darby to call Mr Cresp, attaching his contact details [CB 6/5332]. That evening, Mr Eldridge sent a text message to Mr Andrew Irvine, an aircraft operator, informing him that he intended to fly to Moruya on Thursday 14 July and querying whether there would be an aircraft available [CB 6/5331]. Mr Irvine subsequently arranged to prepare an aircraft at the request of Mr Eldridge [CB 6/5332].
Having received confirmation that an aircraft was available, Mr Eldridge sent a text message to Mr Darby informing him that they "should be fine for a flight on Thursday". It is important to note that the text message concluded with a request by Mr Eldridge that the site visit remain "confidential on my side". That Mr Eldridge intended the meeting to be confidential was reflected in an email that he sent, in his capacity as General Manager of the Council, to Mr Gray and Ms Posselt on the evening of 12 July, under the subject heading "Funeral this Thursday at Narooma". This is the "funeral email" that I have already dealt with at length in my consideration of Mr Eldridge's credit: see [320]-[326] above.
The proposed site visit of 14 July 2016 was also acknowledged by Mr Cresp in the following text message sent to Mr Eldridge and Mr Darby on 13 July 2016 [CB 6/5332]: "Thank you for your assistance with some outstanding issues with the Bateman's bay clinic. I cannot find a copy of the revised plans for the project and the scoping study (and costings) that would have accompanied it. Can you arrange for Silas to bring a copy of these with him when he comes to a site visit please? This will allow both of us to be using one set of documents so that there is no confusion about responsibilities."
Mr Eldridge was cross-examined at length as to the events of 14 July 2016, particularly the apparent discord between his email to Mr Gray and Ms Posselt and the contemporaneous documentary record, in addition to the affidavit evidence of Messrs Darby, Cresp and Fleming. Each of these witnesses recalled attending a site meeting at the medical centre in Batemans Bay and stated specifically that Mr Eldridge had flown with Messrs Darby and Fleming to Moruya airport, where they met Mr Cresp.
This line of cross-examination included the following exchanges [T. 639-643]: "Q: Mr Eldridge, you travelled to Moruya, you flew to Moruya with Mr Darby and Mr Fleming on 14 July. A: Yes. Q: For the purpose only of going to Katungul. A: Yes. Q: The Katungul site. A: Yes. … Q: You attended Narooma on 14 July with Mr Fleming and Mr Darby and you were attending there not for the purpose of Council business at all; were you? A: Is this the one where Fleming and Darby - that meeting are we referring to, just for clarification? Q: I'm talking about your presence at the site at Batemans Bay on 14 July having flown there with Mr Darby and Mr Fleming to undertake an inspection and discuss work for Katungul; do you understand what I'm talking about? A: Yeah, I took the day off to do that, yes. Q: And you told no one about it. A: As I said, very rarely did I tell anyone about what I was doing when I could help it at the time. … Q: You didn't tell anyone you were going to Batemans Bay on 14 July; did you? A: I had a discussion with [Mr] Gray and [Ms] Posselt before I went. At that time [Mr] Gray and [Ms] Posselt knew where I was pretty much all of the time. … Q: And you didn't tell anybody about your absence on 1 July either, did you? A: I don't recall that, I just don't recall it. Q: You didn't say don't pay me for the 1 July, I was doing business other than for Council on that day. A: I was doing business for Council pretty much seven days a week with a contract that paid me for 37 hours. … Q: In any event, you went [to Batemans Bay with Mr Darby and Mr Fleming] on 14 July, can we take it that you were absent for the day? A: Well, I don't recall whether I returned back or not that day. Q: … would you agree with me Mr Eldridge that you were at Bateman's Bay at the site on 14 July, you spent approximately two to three hours with Mr Darby and Mr Fleming and Mr Cresp at the site, identifying defects and the like? A: Yeah it was probably at least two I image, I don't, can't remember the time we spent there."
In relation to the apparent "confidentiality" of his visit to the Katungul project site on 14 July 2016, and the proposition that this represented a form of subterfuge to create an excuse for his absence from his Council office on that day, Mr Eldridge made reference in his oral evidence to a series of anonymous threats that he and his family had received during June and July 2016 [CB 1/351-354]. These threats appeared to provide the basis for his statements in the transcript extract above to the effect that he, as a matter of practice, avoided informing his colleagues of his whereabouts and, to the extent that he did, Mr Gray and Ms Posselt knew of his whereabouts "pretty much all of the time".
These answers, as provided by Mr Eldridge, largely elaborated upon the following evidence given in the course of cross-examination [T. 633-634] by reference to his text message to Mr Darby on the evening of 12 July 2016 [CB 6/5333]: "Q: And you also said to Mr Darby in this text message … 'hey, should be fine with a flight on Thursday, but confidential on my side'; do you remember saying that? … A: I don't recall saying it but I, um, I don't recall saying it but I don't deny that I would have said confidential. Q: Confidential on your side, meaning don't tell anyone about the trip to Batemans Bay tomorrow, it's confidential on my side. A: Well at the time I wasn't telling anyone where I was going because I was being pursued by a number of individuals. Q: Who was that? A: Well, we don't know, but I got chased around for quite a while. Q: This is because you had received a threat in June. A: It was more than me - Q: Another one in July. A: My whole family was receiving threats. Q: I see. So is that why you said, 'but confidential on my side'? A: Everything I was doing was confidential at that time. Q: And that is why, is it, you didn't tell anybody where you were going on 14 July? A: I told [Ms] Posselt and [Mr] Gray that I was going out for the day and [Ms Posselt] was concerned about that but I did tell them. Q: She was worried about you, was she? A: Well I think she was concerned about some things, I can't really say what she was but I withdraw that bit. … Q: Is what you just said true, Mr Eldridge? A: In relation to being pursued? Q: In relation to why you said, 'but confidential on my side'. A: Absolutely, we were under serious threat, we still don't even sleep with the blinds open at my place."
This justification was not maintained consistently by Mr Eldridge. When pressed by Mr Goot as to why he sent the email to Ms Posselt and Mr Gray regarding the fictional funeral on 14 July 2016, Mr Eldridge proffered an operational reason, whereby the email was "an excuse for [Ms Posselt] to give her some relief about pressure in the diary" [T. 636]. In my view, Mr Eldridge's request that Mr Darby keep Mr Eldridge's visit to Batemans Bay confidential had nothing to do with a concern for his own safety but, consistent with the funeral email, bespoke a consciousness that his absence from his full time position at the Council was entirely unauthorised and that he wished to conceal the true reason for his absence. Mr Eldridge's explanation of the "confidential on my side" text message provides yet a further example of why I found him to be a witness whose explanations could not be believed.
Returning to the facts relating to Mr Eldridge's involvement in the Katungul project, on 25 July 2016, Mr Darby sent an email to Mr Eldridge's Council address attaching a pricing schedule in respect of "additions [to] and defects [of]" the Katungul project, suggesting that Mr Eldridge "disregard the name of the job but look at the format" [CB 5/3715]. The pricing scheduled contained a list of 24 items of work, at an estimated total cost of $38,509 including GST. Mr Eldridge proceeded to forward Mr Darby's email, and its attachments, from his Council address to his Eldridge Group address [CB 5/3715].
The pricing schedule was also provided to Ms Grant by Mr Darby on 25 July 2016. Receipt of this document was acknowledged by Ms Grant the following morning, with notice that KAC would "be in touch shortly" [CB 5/3729].
In keeping with Ms Grant's notice, KAC was in touch with Mr Darby on 10 August 2016, by way of the following email from Mr Cresp [CB 5/3729]: "I have reviewed the ICG costings and commitments in the (approximately $38000.00) document for remediation works at the Batemans Bay clinic. I note that an employee of ICG has visited and fixed (or organised to be fixed) the agreed defects. The additional work will be you have quoted for will be carried out by local trades as your quotation was not competitive. Upon studying the quote and obtaining local quotes for the same work Katungul will be able to save approximately $9000.00. This is a significant saving. On behalf of Katungul we acknowledge the work done by ICG." (emphasis added).
Mr Darby sent the following response to Mr Cresp and Ms Grant approximately one hour later [CB 5/3728]: "Dear Chris, You will understand of course that our pricing has included a sum of money for travel and accommodation between Wagga and Batemans Bay so your reduced price is indicative of the local content and supervision. We thank Katungal [sic] and all of the staff for their cooperation and assure you that we will always only be at the end of a telephone should you require any further input or assistance."
Much in the same manner as occurred for the email of 25 July 2016, Mr Eldridge forwarded the email exchange between Ms Grant, Mr Cresp and Mr Darby from his Council address to his Eldridge Group address, and to Ms Newton [CB 5/3728].
The result of this email exchange was that ARAS would receive payment for works performed to rectify existing defects on the Katungul site, whilst all additional works would be performed by contractors located in Batemans Bay. From a commercial perspective, ICG would receive a lesser payment than the $38,509 quoted in Mr Darby's email of 25 July 2016 (see [449] above).
It was put to Mr Eldridge that his receipt of these emails, and their transmission to his Eldridge Group address, was probative of his role as project manager for the Katungul medical centre. Mr Eldridge denied this assertion and offered the alternative explanation that he was "providing advice … mainly to people that were trying to solve these issues that were going on to conclude this matter" [T. 643-644]. The people referred to in this answer included Mr Darby, Ms Grant and Mr Cresp, in respect of the emails on 25 July and 10 August 2016. Again, I do not accept Mr Eldridge's characterisation of his involvement. In the course of this exchange with Mr Goot, it was accepted by Mr Eldridge that he was "involved in relation to Katungul on 25 July 2015" and was "still involved with Katungul" as at the time of his cross-examination [T. 643]. On the Council's case, this continued involvement during his time as General Manager of the Council constituted private and unauthorised employment outside the service of Council and was motivated by Mr Eldridge's desire to receive payment for his services.
At [71] of his affidavit, Mr Eldridge gave evidence that: "AIBS was the project manager for [the Katungul medical centre] and ICG was the company that conducted the [Katungul] minor works contract that amounted in total to less than $400,000. Some of the work was charged using a cost recovery methodology, labour and materials and other components of the work such as my involvement (time) were pro-bono where the Eldridge Group of Companies received no financial benefit from the engagement." (emphasis added).
This last statement was demonstrably false. The Court's attention was drawn to a register of purchases kept by KAC for the period from 1 December 2014 to 25 June 2018 [CB 5/3750]. This document recorded the payment of $11,000 to AIBS on 1 October 2016 which corresponded to AIBS's invoice of 7 April 2016: see [428] above. Mr Eldridge was cross-examined about this payment: [T. 644-645]: "Q: … a company you owned was paid in October; is that right? A: Yeah, AIBS I think got paid and people that were doing this work that were the ones who got paid out of that company or part of it. Q: Does AIBS have any employees … A: Yep. … Q: I'd ask you to accept that you were shown in the … company search for Australian Indigenous Business Services Pty Ltd as being the sole director and sole shareholder; do you accept that? A: No, I accept that, yes. Q: And you were the only person who was providing the services that were described in the resolution of Katungul [of 30 April 2014] … that's correct, isn't it? A: No, no it's not." (emphasis added).
When pressed further on this point he referred to "a number of people" working on the project, namely Ms Newton, who was "the one that got involved in the project more than most, there was various other people as well, there was seven contractors engaged and Vickie [Newton] managed them" [T. 645].
Ms Newton did not give evidence and there was no evidence that she had ever visited the Katungul project. The highest the evidence went was that Mr Eldridge "couldn't say for sure [that] she had never been there" [T. 645].
The evidence before the Court demonstrated, contrary to Mr Eldridge's contention, that it was he who was discharging a management role: it was he who gave a detailed report to the board of KAC on 23 March 2016 and it was he who made site visits on 1 and 14 July 2016 and who liaised with Messrs Cresp and Darby in relation to the completion of outstanding work. True it was that Ms Newton sent the email of 15 March 2016, but that was expressly said to have been sent after she had spoken to Mr Eldridge and Mr Darby. That was the email, it is to be recalled, that referred to Mr Eldridge having been paid "$15K of the agreed $25K management fee". In addition to these matters, Mr Darby, whose evidenced I accept, said in [33] of his affidavit, which was not challenged in cross-examination, that he was certain that he had discussions with Mr Eldridge to the effect that "we need to get these things done so we can get the final payment in".
Late in the afternoon of the eighth day of the trial, a document was tendered into evidence by Mr Eldridge's senior counsel [Exhibit P1] which purported to be a proposal prepared by AIBS for the provision of project management services to KAC. Although the document did not bear a date, it was accepted by the parties to have been prepared between 30 April and 20 May 2014. The AIBS proposal contained the following introduction from Mr Eldridge, in his capacity as Managing Director of the company: "[AIBS] is pleased to submit the following proposal to provide project management services and advice to [KAC] during the acquisition and rollout of the new clinic to be opened in Bateman's Bay. As discussed, AIBS will work closely with Katungul management and Board to scope all financing options including lease and purchase. AIBS will also play an important role in the facilitation between Katungul and key stakeholders throughout the project. Further information elating to the scope of the project is detailed in the attached proposal. We believe that AIBS can carry out the project management services as detailed in the proposal for a total cost of $49,692.50 GST exclusive plus travel costs. Travel and accommodation costs will be charged separately and an estimate of $14,040 has been provided based on one site visit per fortnight by Mr Alan Eldridge during Phase 1 of the project." (emphasis added).
Phase 1 of the project, titled "planning", was anticipated to constitute the following [Exhibit P1 at 5]: "Phase One of the project will encompass the work required to commence operations at the clinic. AIBS will be engaged to provide advisory services and to work with Katungul staff to rollout the service. It is envisaged that Alan Eldridge will attend Katungul one day each fortnight during phase one of the project but also provide additional advisory services when required. The primary points of action include: Financial Planning and reporting … Investigate Property Options … Stakeholder Engagement … Business Model … Reporting." (emphasis in original).
In summarising the "key personnel" involved in the project for AIBS, the proposal stated that "the project team will be headed by Alan Eldridge". No executed copy of the proposal was in evidence and it long predates the events of 2016.
It may be accepted that there is no direct evidence that Mr Eldridge ever received payment in his personal capacity for work he performed for KAC. The evidence is that payment was invoiced by and received by AIBS, a company which it has been noted Mr Eldridge was the sole director and shareholder of at all material times.
Recalling that cl 6.1.2(k) of the Standard Contract required Mr Eldridge to: "carry out the duties and functions imposed by the [Local Government] Act and Regulation, or any other Act and associated regulations, which include but are not limited to: … (k) not engaging, for remuneration, in private employment or contract work outside the service of Council without the approval of Council …" (emphasis added), the submissions made by Mr Fernon on Mr Eldridge's behalf may be summarised in the following three core propositions: (i) Mr Eldridge had resigned his formal involvement in the Katungul project, through ICG, upon his appointment as the Acting General Manager of the Council; (ii) although Mr Eldridge did in fact provide assistance to KAC whilst employed by the Council, it was not in private employment nor pursuant to a contract; and (iii) he did not receive remuneration personally, through AIBS or through ARAS. As a fallback submission, Mr Fernon submitted that even if a breach of cl 6.1.2(k) were established, that breach was not of sufficient seriousness to warrant Mr Eldridge's summary dismissal.
It may be accepted that Mr Eldridge resigned his formal involvement in the Katungul project, through ICG, upon his appointment as the Acting General Manager of the Council, but attention should be paid to the term "formal". Indeed, in the minutes of KAC which recorded his resignation, it was also recorded that "Alan indicated that he is happy to continue a consulting role with the company": see [414] above.
It is not in doubt that Mr Eldridge did continue a role in essence as a project manager, although the precise characterisation of his role is less important than an understanding of the nature and extent of his involvement. That involvement was not insignificant as the lengthy narrative of facts in relation to the Katungul project demonstrates. It is also for this reason that it is not to the point that Mr Darby had signed an application for certificates and appointment of principal certifying authority for the Katungul medical centre as its "project manager" [T. 315; CB 2/1036A] and that the contract executed between ICG and KAC on 25 November 2015 listed him as the "builder's representative" [CB 2/1217].
The critical matter in terms of consideration of a breach of cl 6.1.2(k) of the Standard Contract turns upon whether or not it could be concluded that Mr Eldridge engaged, "for remuneration, in private employment or contract work." In my opinion, the facts clearly demonstrate that he did.
Whether or not the proposal between AIBS and KAC was ever executed, it is reasonable to infer that there was some contractual arrangement in place, however informal, between those two entities that resulted in the former issuing an invoice of 7 April 2016 and the latter paying that invoice in October 2016. AIBS was Mr Eldridge's company and all the evidence pointed to the fact that it was he personally who was doing the work to which the invoice related, bearing in mind that the invoice extended to work still to be done, namely to "conduct final inspection prior to handover". All of the supervisory work directed towards handover and a satisfactory final inspection was work with which Mr Eldridge was intimately involved. The outstanding fees that were to be paid were characterised by Ms Newton as Mr Eldridge's fees: see [422] above. An overwhelming inference arises that Mr Eldridge's services were provided to KAC through and invoiced by his wholly owned vehicle AIBS.
If the fees rendered by and paid to that entity did not in fact flow to Mr Eldridge, it was open to him to demonstrate that that was so. Mr Fernon placed particular emphasis on the fact that Mr Eldridge did not receive wages from either AIBS or ARAS up to 30 June 2017. During closing submissions, what purported to be the financial records and employee registers of AIBS and ARAS for financial years 2016 and 2017 were tendered into evidence [Exhibits P6-P8]. On Mr Eldridge's case, neither of these sets of documents served to demonstrate that Mr Eldridge received remuneration. The difficulty with this submission and the late evidence filed in support of it was that the Profit and Loss Statement for 30 June 2017 of AIBS recorded as an expense "Consultants fees" of $25,000. Far from demonstrating otherwise, this entry, when taken together with Ms Newton's email of 15 March 2016 referring to "Alan has been paid $15K of the agreed $25K management fee", Mr Eldridge's indication to the Board of KAC as to his willingness to continue as a consultant and the fact that he plainly did so, these financial statements appear confirmatory of Mr Eldridge's receipt of remuneration for the unauthorised work he performed through AIBS for KAC.
The technical defence relied upon by Mr Eldridge, namely that he did not personally receive payment, also relies upon a narrow interpretation of the word "remuneration" that I do not consider it bears in the particular contractual context in which it appears. It should be interpreted, in my opinion, to refer to remuneration not only directly but also indirectly received. Clause 6.1.2(k) of the Standard Contract is for the benefit of the Council and ultimately its ratepayers. It should be given a broad and purposive construction.
When queried as to the relevance of the email of 12 July 2016 regarding the fictional funeral, and Mr Eldridge's request that his visit to Batemans Bay on 14 July "remain confidential", Mr Fernon asserted that they were immaterial to the issue in question, as the visit "did not interfere with his work at council" and it was "not demonstrated that there was any meeting that he didn't go to, was unable to go to or the like" [T. 753]. Apart from being inconsistent with the statement in the email to apologise for cancelled meetings, the visit on 14 July 2017 took Mr Eldridge out of action for a day, as did the visit on 1 July 2017 and 23 March of the same year. None of these visits were taken as leave. They were at the Council's unauthorised expense.
In my opinion, a clear breach of cl 6.1.2(k) of the Standard Contract has been established. The question which then arises is as to whether alone or in conjunction with other breaches that I have found to be established, it would justify Mr Eldridge's summary dismissal. In my opinion, it would certainly justify termination when considered in conjunction with Mr Eldridge's pecuniary disclosure breaches and failure to disclose his son's interest in the Inglewood Road Planning Proposal.

[36]

Retainer of solicitors on a personal matter and without appropriate approval

On Mr Eldridge's case, Mayor Conkey authorised him to take advice from LTL on 16 February 2017 after receipt of the Morphet email and what Mr Eldridge claims was his discussion with Mayor Conkey and others about Mr Morphet's claims on that day: see [218] above.
Mayor Conkey's evidence, it will be recalled, took issue with Mr Eldridge's claim that he, the Mayor, had authorised Mr Eldridge to retain LTL on 16 February 2017 although he accepted that he would have authorised payment of LTL's subsequent invoice. Mr Gray also denied being present at any conversation where Mayor Conkey authorised the retention of LTL.
As has been set out above, LTL was contacted orally by Mr Eldridge on 16 February 2017 following receipt of the Morphet email of the same date. Subsequent formal instructions were issued to that firm on the same afternoon by Ms Hensley (see [226]-[227] above) and the direction to staff members involving Mr Eldridge's conflict of interest, as drafted by LTL, was issued within the Council on 17 February 2017: see [230] above.
A press release was also drafted which went through a number of iterations before its ultimate issue on 21 February 2017: see [238] above.
Later work arising out of the original written instructions included a detailed letter of advice to Council dated 27 February 2017.
In the course of cross-examination, both Mayor Conkey and Ms Hensley accepted that at least aspects of the advice provided by LTL went to operational matters for the Council.
In relation to the disputed conversation of 16 February 2017 as to authorisation of the retainer of LTL, for the reasons already given in relation to matters of credit, it is very difficult to have confidence in Mr Eldridge's account of it.
I also have reservations as to whether any substantive conversation with Mayor Conkey in fact occurred on 16 February 2017 at least in the terms set out by Mr Eldridge in his affidavit by reason of the fact that, if a conversation to that effect had occurred, it would be somewhat surprising for Mayor Conkey to have made the diary entry he did some four days later on 20 February 2017: see [235] above. Further, having, on Mr Eldridge's account, twice made a verbal request for a written response to the questions raised in the 16 February 2017 conversation, it is somewhat surprising that Mayor Conkey made a written request for a report in writing on 20 February 2017 without referring to his earlier requests (on Mr Eldridge's account) the previous week. Mayor Conkey also denied knowing Mr Morphet, The Daily Advertiser journalist referred to in Mr Eldridge's account "very well" and equally denied having a "good relationship" with him, both statements attributed to Mayor Conkey by Mr Eldridge.
On the balance of probabilities, I find that Mr Eldridge was not expressly authorised by Mayor Conkey to "get whatever legal advice you need" in a conversation of 16 February 2017.
This is not the end of the matter, however, and it does not follow that any breach by Mr Eldridge in retaining LTL without first having obtained the Mayor or Council's approval was a breach that warranted his summary dismissal.
I do not consider that, at least viewed in isolation by reference to events at the time, it would have justified such dismissal. It was in the Council's interest to have an up to date internal direction as to how conflicts of interest concerning the Inglewood Road Planning Proposal should be dealt with. It was also in the Council's interest that a press release be issued and that a detailed written advice be furnished. But for the fact that Mr Eldridge's claim in the press release to the effect that he was "not aware of his son's involvement with one of the land owners in the planning proposal until recently" was false, the seeking of legal advice in relation to the allegations in Mr Morphet's email from one of the Council's panel of solicitors was scarcely inappropriate and it is significant that Mayor Conkey subsequently approved the expenditure. It is also not without significance that, on Ms Hensley questioning the appropriateness of the Council paying for the advice, LTL advised that it was in order.
I do not consider that Mr Eldridge's termination could be justified by reference to the retainer of LTL without express approval.

[39]

Unauthorised personal expenditure

The Council pleaded at [5b(h)] of its Further Amended Defence, that it was justified in the summary termination of Mr Eldridge's employment as he had breached cls 6.1.2(m)-(n) by, amongst other things "incurr[ing] expenses paid for by Council or reimbursed that were personal in nature". The terms of these sub-clauses have been set out at [102] above.
The Further Amended Defence, somewhat surprisingly, did not provide any particulars of the personal expenses said to have been incurred by Mr Eldridge and paid for by the Council, other than by way of the compendious statement "[f]urther particulars will be provided in the defendant's evidence in these proceedings."
Some examples were given of disputed expenses in the affidavit evidence filed on behalf of the Council by Mayor Conkey and Deputy Mayor Tout. For reasons explained below, the only expense which featured in the Council's case as ultimately put was "one example" referred to by Mayor Conkey as being for "a bill for one meal that was $288". His evidence in relation to this was as follows: [CB 1/175-176]: "When I asked [Mr Eldridge] about this during my reconciliation of his Council credit card, [Mr Eldridge] said 'I took Committee for Wagga.' … When I saw [Ms] Galloway, I said 'it's nice that Alan took you for lunch.' [Ms Galloway] said to [Mr Conkey] '[w]e didn't go to lunch with [Mr] Eldridge.' … Soon after, I raised this with [Mr Eldridge], who told me when confronted 'I took Colin Duff to lunch' … I took from this that [Mr Eldridge] had taken a friend to lunch and had incurred a large expense to be paid for by Council in doing so." (emphasis in original). The Chair of the Committee for Wagga Wagga was Ms Judy Galloway (Ms Galloway), and its CEO was Mr Chris Fitzpatrick (Mr Fitzpatrick). Mr Colin Duff (Mr Duff) was a member of the Committee for Wagga Wagga. The Committee for Wagga Wagga was and is a non-profit organisation concerned with community and commercial activities in the city of Wagga Wagga.
In its opening submissions, the Council referred to cl 12 of the Standard Contract in addition to cls 6.1.2(m)-(n). Clause 12 was entitled "Expenses and credit cards" and provided that: "In addition to any duties or entitlements that may be set out in any relevant policies of Council as adopted by Council from time to time, the employee will: 12.1 keep such records of expenses, travel and motor vehicle use as required by Council from time to time, 12.2 be reimbursed by Council for expenses properly incurred on Council business, subject to Council's prior approval to this expense being incurred, 12.3 only use any credit card provided by Council for expenses incurred on Council business, and 12.4 return any credit card provided by Council on request from Council". (emphasis added).
The Council submitted that Mr Eldridge had: "seriously and/or persistently breached cl 12 as he had, from time to time, incurred expenses which were not properly incurred on Council business. One such example being a $288 lunch attended by Mr Eldridge and Colin Duff which, on the Council's evidence (which ought be accepted), was entirely unrelated to any Council business."
Notwithstanding the reference "from time to time", implying as it did a series of unauthorised personal expenses having been incurred, as noted at [9] above, this aspect of the Council's case was ultimately confined to one item of expenditure amounting to $281.10 in relation to a dinner held on Saturday 1 October 2016 at the Pavilion restaurant in Wagga Wagga which Mr Eldridge had acquitted as being "meeting C4W" and which was described in the Council's "Purchase Card Account Reconciliation" as "1/10/2016 Dinner meeting with C4W PAVILION WAGGA WAGGA". "C4W" was shorthand for the Committee for Wagga Wagga.
It may be noted that, although the amount of $281.10 was approximately the same as the $288.00 referred to in the Council's opening submissions and Mayor Conkey's evidence, the 1 October 2016 disputed expense was for a dinner and not a lunch which Mayor Conkey had evidently assumed in his questioning of Mr Eldridge.
In reply to Mayor Conkey's evidence, Mr Eldridge accepted that he had taken Mr Duff to lunch "in the course of investigating a complaint concerning Council business" [CB 1/122-123]. Although Mr Eldridge could not recall the specific amount of the expense incurred, it was his belief that it "was approved in the normal course". He also recalled a conversation with Mayor Conkey to similar effect as that set out at [493] above as follows: "CONKEY: Did you take the Chair and the CEO of the Committee for Wagga Wagga to lunch? ELDRIDGE: No. I took another director of the Committee to lunch."
It was not in dispute that Mr Duff was a close friend of Mr Eldridge's. The following exchange occurred during the fourth and final day of Mr Eldridge's cross-examination [T. 684-685], Mr Eldridge having been shown the relevant purchase card reconciliation entry: "Q: If I can take you to the third-last entry on that page which is a charge on 1 October 2016 at Pavilion Wagga Wagga for $255.55 plus GST for dinner meeting with C4 Wagga - I think committee members; do you see that entry? A: I see that entry. Q: I think you've now said that that was in fact a dinner with Mr Colin Duff who was a committee member of the committee for Wagga; is that right? A: Well I'm not. Q: Isn't that your evidence? A: I'd have to see my handwritten notes on that, there's a reason for it, because that is not the date and that is not the place where I met Colin Duff for the committee for Wagga and I don't believe that's the transaction that Mr Conkey puts in - mentions in his affidavit. I think that's another transaction so I'd have to see my handwritten notes on that one. Q: Well tell me it's a Saturday, I want you to accept that the 1 October 2016 was a Saturday - A: … I agree with that. Q: $281.10 inclusive of GST. A: It's the wrong transaction. Q: I beg your pardon? A: It's the wrong transaction, sir. Q: But it's your transaction - you're not suggesting that this is - A: No, no, no, I don't know what it was for but I would have to see it might well have been something to do with the committee for Wagga but the Duff matter is not that one. Q: Mr Duff was a friend of yours? A: Yes, and the director of the committee for Wagga. … Q: 1 October 2016, $281.10, and that is your handwriting, 'meeting C4W'? A: That seems to be, yeah … yeah okay I accept that I had that meeting at the Pavilion and it was for the committee - Q: With Mr Colin Duff. A: No, I don't think he was at that meeting. Q: … You can't assist us with whom you had a meal on the Saturday night, 1 October, for $255.55; can you? A: Not looking at this information in front of me, no." (emphasis added).
Putting aside the quantum of the expenditure, the identity of Mr Eldridge's dinner companion on 1 October 2016 was material to this allegation, as Mayor Conkey accepted that he would "definitely not" have taken issue with the propriety of the expenditure if the dinner guest had been Ms Galloway or Mr Fitzpatrick. On the other hand, he expressed the opinion that "because Colin Duff was a friend [of Mr Eldridge] … there was an adverse conclusion to be drawn against Mr Eldridge" [T. 87].
Both Mr Fitzpatrick and Ms Galloway affirmed affidavits in these proceedings, which were responsive to [98] of Mr Eldridge's affidavit. These affidavits were read and formed part of the evidence, and neither of Mr Fitzpatrick or Ms Galloway was required for cross-examination. Mr Fitzpatrick's evidence focussed on Mr Eldridge's description of his meeting with Mr Duff as occurring in the course of the investigation of a complaint, and read as follows: "As CEO of Committee4Wagga I did not endorse or authorise a meeting between Colin Duff and Alan Eldridge to discuss any issues between Committee4Wagga and Wagga Council or the relationship between the two organisations. … Alan Eldridge says that he took Colin Duff a director of Committee4Wagga to lunch in the course of investigating a complaint concerning Council business. As CEO of the Committee4Wagga I had no knowledge whatsoever of any such complaint. I also had no knowledge whatsoever of the meeting occurring. At no time did Colin Duff ever speak to me about the lunch, or the complaint, or the discussion with Alan Eldridge. Colin Duff did not raise the issue either with me personally as CEO or at the Board level in a meeting of the Board."
The evidence of Ms Galloway appeared to substantiate that of Mr Fitzpatrick, through the following recollection of events: "I am not aware of any complaint by the Committee4Wagga in relation to Wagga City Council. As chairperson I regularly met with Council to discuss issues concerning the city however there was never a complaint which is suggested in paragraph 98 [of Mr Eldridge's affidavit]. The Committee4Wagga met with Council to discuss issues concerning the city however there was never a complaint which is suggested in paragraph 98. These meetings were always attended by the Chairperson or CEO of the Committee4Wagga and occasionally other Board members. These meetings were always conducted at Council premises during business hours. At no stage was any Board member ever authorised to hold a meeting representing the Committee4Wagga independently of the Chairperson or the CEO. Colin Duff was never authorised to have a meeting with Alan Eldridge on behalf of Commtitee4Wagga. As I have stated above, I am not aware of any complaint made by Committee4Wagga in relation to the Council. Whenever a meeting was held with Council, the outcome of the meeting and the nature of the discussion were always tabled and discussed at the next occurring Board meeting. These discussions were then minuted in the minutes of that Board meeting. I have reviewed the Board minutes and confirm that Colin Duff attended the Board meeting which was held on 5 October 2016. Colin Duff did not disclose any meeting as suggested in paragraph 98 of the affidavit of Alan Eldridge …"
The competing contentions as to the $281.10 paid by Mr Eldridge on his Council purchase card at the Pavilion restaurant on the night of 1 October 2016, alleged by the Council to be a personal expense, may be summarised as follows: (i) Mr Eldridge accepted that he did incur this expense, and that he prepared the accompanying narration "Meeting C4W". It was also his evidence that he had a meeting over lunch with Mr Duff during his tenure as the General Manager of the Council for the purposes of discussing a complaint concerning Council business. However, he denied that the lunch meeting he had referred to was in fact the dinner on 1 October 2016 at the Pavilion, Wagga Wagga; and (ii) the Council asserted that Mr Eldridge incurred the expense in the course of a personal or social interaction with Mr Duff, as opposed to a meeting to discuss Council business. This was said to be substantiated by the evidence of Mr Fitzpatrick and Ms Galloway, the latter of whom highlighted the absence of any contemporaneous record of such meeting, contrary to the ordinary practice of the Committee for Wagga Wagga.
In closing submissions, Mr Fernon took issue principally with two aspects of the Council's case on the allegation of the inappropriate use of expenses. First, that the evidence relied upon by Council was insufficient and "most unsatisfactory to make a serious allegation of [this] kind against Mr Eldridge", particularly in the absence of "further exploration" in cross-examination as to when Mr Eldridge may have met with Mr Duff. Secondly, Mr Fernon submitted that, taken in isolation, the incurring of a single personal expense in the value of $281.10 could not as a matter of law constitute serious misconduct enlivening the Council's right to dismiss Mr Eldridge on a summary basis.
I accept this last submission. Viewed in isolation, it is difficult to see how the incurring of a single unauthorised expense, at least in the amount of $281.10, would justify the termination of a four year contract as General Manager of the Council. That is not to condone the expenditure if it was in fact unauthorised; it is simply to have regard to the principles relating to the quality of the seriousness of any breach which may justify summary dismissal: see [289]-[297] above.
It may be that the Council had originally contemplated seeking to establish a number of other unauthorised expenses but, for whatever reason, including the length of time the trial had run largely taken up with other issues, the 1 October 2016 expense was the only expense that was ultimately challenged.
As to whether or not the incurring of the expense was for personal use or for a meeting with the Committee for Wagga Wagga over dinner at the Pavilion restaurant on 1 October 2016 as Mr Eldridge had claimed in acquitting the expense in 2016, there was a degree of confusion in the evidence on account of the fact that Mayor Conkey's evidence and his inquiry of Ms Galloway proceeded on the assumption that the expense related to a lunch and not a dinner. Mayor Conkey's evidence also referred to a different, albeit similar, amount of money. His evidence was not tied specifically to the expense recorded and acquitted in the Council's records for 1 October 2016.
Ms Galloway's evidence did not in terms address whether there was any record of any meeting with Mr Eldridge on 1 October 2016 at the Pavilion Wagga Wagga, although her unchallenged evidence was that meetings between the Committee for Wagga Wagga and the Council were always attended by either the Chair or the CEO and were always conducted at Council Chambers. This evidence points strongly against the accuracy and integrity of Mr Eldridge's acquittal of this expense as being for a "meeting with C4W".
I have serious doubts as to whether or not the particular expense for 1 October 2016 was accurately or honestly claimed as being for a "meeting with C4W", doubts which are reinforced by my strongly adverse view as to Mr Eldridge's credit generally, but it is ultimately not necessary to decide this question in view of my acceptance of Mr Fernon's submission that a single unauthorised expense in the sum of approximately $280 would not have been sufficient, in and of itself, to justify Mr Eldridge's summary dismissal even if unauthorised.

Eldridge v Wagga Wagga City Council

At a glance

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Judgment (43 paragraphs)

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Legislation Cited (6)

Cases Cited (34)

Cited By (5)