PERSONAL EXPENDITURE
19 Before turning to the specific instances of the respondent having used the HSU's funds for his own benefit cited by the applicant, I should draw attention to a distinction which is important to an understanding of much of what follows. As revealed in the evidence, there were two categories of situation in which the applicant made allegations against the respondent. First, there was the situation where the respondent himself (or another organisation with which he was associated) was the party involved in making a particular purchase or in incurring a particular liability, but where, by the use of his position as National Secretary, he caused the HSU to pay for that purchase or to discharge that liability. The transactions referred to in this section of these reasons are some which fell into this category. Here, there is no criticism of the respondent having made the purchase or incurred the liability as such: the criticism which the applicant validly makes is that the respondent arranged for the HSU to pay for it. In the case of credit card transactions, the use of the card as such gave rise to a liability in the HSU as against the card issuer to settle the amount owing on the card at the end of every relevant period. By using the card, the respondent passed that liability on to the HSU. Had the HSU had a policy which permitted its staff to use credit cards for personal purchases, and/or had the respondent been scrupulous in reimbursing to the HSU the amounts which it was obliged to pay on credit cards but which related to his own personal purchases, there again might have been no criticism of the way he conducted himself. Neither, however, was the case.
20 Secondly, there was the situation where the respondent used his position as National Secretary to cause the HSU to make the purchase or to incur the liability. As between the HSU and the other party to the transaction, it was the former which was contractually obliged to pay for the purchase or to discharge the liability. Here, the respondent's conduct in causing the HSU to be a party to the original transaction does attract valid criticism, within the confines, of course, of the statutory provisions on which the applicant relies. As will appear in due course, there was one substantial contract into which the respondent caused the HSU to enter, and which involved a large payment falling due some time after the respondent had resigned as National Secretary. The then National Executive made good on that obligation, attaching to the HSU itself as it did.
21 At times relevant to this proceeding, one of the staff employed in the National Office of the HSU was its bookkeeper, Belinda Ord. She recorded the expenses of the National Office and its staff on its MYOB computerised accounting system. That system had the expense categories that would be conventional for a trade union, including meetings and travel, for example. Usually, the official or staff member responsible for incurring an expense would provide her with something to vouch it as proper to be paid by the HSU, such as an invoice, receipt or similar docket. For expenses paid by credit card, the card holder would usually have provided Ms Ord with the voucher provided to him or her at the time of each transaction. In some cases, even in the absence of a voucher or similar document, a payment recorded on the statement provided by the issuer of a credit card would self-evidently relate to something which Ms Ord could record on MYOB because of her familiarity with the operations of the National Office. Otherwise, she would refer to the official or staff member by whom the expense was incurred. In the areas dealt with in these reasons, the official was always the respondent, or one of the two staff members, referred to below, whom he had directly engaged without the knowledge of the National Executive. As bookkeeper, it was Ms Ord who settled the accounts of the National Office, once she was satisfied that the expenses in question had been incurred in the business of the HSU. She reported directly to the respondent.
22 As National Secretary of the HSU, the respondent held two credit cards, a Diners Club card ("the Diners Club card") and a Commonwealth Bank MasterCard ("the CBA card"). In each case, the respondent was the card holder and the HSU was the account holder.
23 The respondent, resident in Melbourne at the time, had cause to be in Sydney over the period 6-8 April 2005. He stayed at the Swissotel. On the evening of 7 April 2005, he made two telephone calls to Keywed Pty Ltd ("Keywed"), a company which operated as an agency for escorts who provided sexual services to clients at private addresses or hotels. Later that night, using the Diners Club card, the respondent made three payments to Keywed in the sums of $570.00, $550.00 and $550.00, a total of $1,670.00. On the card issuer's statement, the first of these payments was dated 7 April, and the other two were dated 8 April. On the latter date, all three payments were reversed. However, there is also in evidence a sales voucher in favour of Keywed on the CBA card in the sum of $2,475.00. This voucher was signed by the respondent on 8 April 2005. It corresponded with an entry on the card issuer's statement which was later received by the HSU. Kati Traunwieser, the director and manager of Keywed, gave evidence in the case. She said that, in 2005, $2,475.00 "would have obtained the services of a [sic] multiple escorts for one or more hours, including transportation costs and a credit card fee".
24 In the drawing of the inferences made necessary by the evidence referred to, some confusion is introduced by the reversed payments on the Diners Club card. However, counsel for the applicant invited me to infer that, for some reason, the respondent, having made these payments, decided that he would prefer to use the CBA card for the relevant transactions instead. Absent the respondent from the witness box, I consider that such an inference is proper to be drawn in the circumstances, and I do so. What is clear is that the respondent did make a payment to Keywed, using the CBA card, in the sum of $2,475.00. Given the nature of Keywed's business, the date of the payments, and the absence of any benign explanation from the respondent, it is also to be inferred that he used this payment to purchase services from Keywed that were personal to himself, either alone or in company with others.
25 When the card issuer's statement for the CBA card was received by the HSU in the normal course, the respondent caused his staff to describe the expenditure of $2,475.00, in the HSU's MYOB accounting system, as a "meetings" expense. He caused the total sum due on that statement, including the $2,475.00, to be paid by the HSU. The transaction to which the expenditure related had not been, and never was, authorised (save by the respondent himself), and was not disclosed to the National Executive.
26 It was submitted on behalf of the applicant that the respondent's use of the funds of the HSU to pay for the personal services which were provided to him on the night of 7/8 April 2005 amounted to an improper use of his position to gain an advantage for himself, and to cause detriment to the HSU, within the meaning of s 287(1) of the schedule. The correctness of that submission is self-evident, and I accept it. As an incident of his position, the respondent was provided with the CBA card, of which the HSU itself was the account-holder. It was the HSU which carried the contractual obligation to settle purchases made on that card by the respondent. The description of this expense as "meetings", in the knowledge (which must surely be inferred) that proceeding in this way would serve to conceal the true nature of the transaction and lead to the funds of the HSU being used to settle the card issuer's statement in the normal course, was the clearest of improprieties, and was conspicuously calculated to deliver an advantage to the respondent himself and to cause detriment to the HSU.
27 It was also submitted that, in this transaction, the respondent contravened s 286(1) of the schedule. I am not persuaded that, in making his transaction or transactions with the escort on 7/8 April 2005, the respondent was exercising his powers or discharging his duties as National Secretary of the HSU at all. Indeed, it seems to me that he was acting entirely outside the powers which he had and the duties which were required of him as National Secretary. I say that notwithstanding that he improperly used the CBA card for those purposes. But it was squarely within his duties to record the true nature of the payments that he had made using that card, and to attend to the payment by the HSU of the card issuer's statement upon which the relevant payments were set out. In these respects, the respondent acted neither in good faith nor for a proper purpose. That he did not, in fact, believe that this payment, or any payment with a like purpose, was in the best interests of the HSU - a proposition which I would, in any event, find to be established on the probabilities in the absence of any evidence from him - is left in no doubt by an answer which he gave in the course of the applicant's investigation of matters which included those presently under consideration. The question posed to the respondent related to expenditure for escort or other adult services:
[Q]: Can you think of any circumstance in which such expenditure, if it did occur, could be legitimate expenditure of the HSU?
[A]: No.
28 I therefore find that, in the respects indicated in the two previous paragraphs, the respondent acted in contravention of ss 286(1) and 287(1) of the schedule.
29 The respondent was again in Sydney over the period 6-8 May 2005. This time he stayed at the Westin Hotel. At 1:26 am on 7 May 2005, he made a call from his hotel telephone to an escort agency which advertised itself as "Boardroom Escorts". This agency was operated by International Immobiliare Pty Ltd ("International Immobiliare"). A further call from that telephone to International Immobiliare was made at 1:52 am. There is no evidence of any sales voucher signed by the respondent on this occasion, but the card issuer's statement for the CBA card, which was received by the HSU in the normal course, contained an entry for a sale in the amount of $770.00 on 7 May 2005, the merchant being International Immobiliare.
30 Graeme Edwards, the director of International Immobiliare, gave evidence in the case. He said that the only business operated by that company was that of an escort service. He described what was its modus operandi at the relevant time. When a prospective client rang to inquire about booking an escort, the receptionist would take the client's name and the name of the hotel at which he was staying; and would find out whether he intended to pay by cash or by credit card. The receptionist would then contact the escort and pass on the client's details and location. The receptionist would then call the client back and, in a situation in which the client had chosen to pay by credit card, would take the details of the card from the client over the telephone. These details were written on to the spine of a manual credit card voucher, which the escort took with her when she visited the client. Having arrived at the client's hotel room, the escort would use the client's credit card to make an imprint on the voucher, and have the client sign it. The escort would then telephone the receptionist at International Immobiliare to confirm that payment had been received, either in cash or by credit card in the way described. This call could be made either from the telephone in the client's premises or hotel room or from the escort's own mobile phone. At the end of the period for which the escort had been contracted, either she would call the receptionist or the receptionist would call her to confirm that all was well.
31 In May 2005, Mr Edwards was overseas. He arranged with the receptionist at International Immobiliare to send him, by email, summary particulars of the business that had been transacted each night. By reference to the receptionist's email sent on the morning of 7 May 2005, Mr Edwards said that, in the course of the previous night, there were services provided to two different clients at the Westin Hotel, each by an escort whose working name was "Alina", and each for one hour at a price of $700.00 plus 10% card fee, a total of $770.00.
32 It is to be inferred from the evidence referred to above, and I find, that, early in the morning of 7 May 2005, the respondent engaged International Immobiliare to provide an escort for him in his room at the Westin Hotel and paid the sum of $770.00 for that engagement using the CBA card. The call at 1:26 am was the respondent's initial inquiry. There is no evidence of any call from International Immobiliare to the respondent to confirm that an escort had been contacted and to take his credit card details. However, the call from the respondent's hotel room to International Immobiliare at 1:52 am was, on the probabilities, that of the escort herself confirming that she had arrived and that payment had been made. It is to be inferred, of course, that the escort provided, and that the respondent used the CBA card to pay for, services that were personal to himself.
33 As mentioned above, the payment of $770.00 was recorded on the card issuer's statement for the CBA card received by the HSU. The respondent caused his staff to describe this expenditure, in the HSU's MYOB accounting system, as a "meetings" expense. He caused the total sum due on that statement, including the $770.00, to be paid by the HSU. The transaction to which the expenditure related had not been, and never was, authorised (save by the respondent himself), and was not disclosed to the National Executive.
34 With respect to the findings proper to be made under ss 286(1) and 287(1) of the schedule, the events of 7 May 2005, and the respondent's subsequent treatment of the relevant expenditure in the administration of the National Office of the HSU, are indistinguishable from those of 7/8 April 2005 dealt with at paras 26-28 above. I find that, in relation to the events of 7 May 2005, the respondent acted in contravention of those provisions.
35 The respondent was again in Sydney, staying at the Westin Hotel, over the period 11-12 June 2005. At what I would infer was about 2:00 am on 12 June 2005, the respondent travelled by taxi from a location which was identified in the Cabcharge system as "CITY" to a destination so identified as "TAYLOR SQUARE", arriving at 2:13 am. The next piece of evidence relevant to the respondent's doings on that night is a sales voucher on the CBA card in the sum of $418.00 dated 11 June 2005. The merchant was Nolta Pty Ltd ("Nolta"). To understand the significance of that voucher requires a consideration of the evidence of Nelson Da Silva, who was at the time the director and secretary of Nolta.
36 Mr Da Silva said that the only business of Nolta was the operation of a brothel at 89-101 Albion Street, Surry Hills, which traded as "Tiffany's Girls". He said that this address was about 500 m from Taylor Square. The brothel was run in two shifts, the day shift from 11:30 am to 7:30 pm and the night shift from 7:30 pm to 5:00 am. All business conducted on the night shift would be recorded on Nolta's job sheet for, and any relevant credit card voucher would be given the date of, the day on which the shift commenced. Job sheets were maintained for credit card transactions. They recorded the time and the GST-inclusive room rent, and identified the room used, in relation to each engagement of a prostitute in the brothel. The job sheet for 11 June 2005 contained an entry for a 1½-hour engagement in the "Red Turbo Spa Room" at a rental of $190.00. Mr Da Silva said that, in addition to this rental, there would have been a cost for the prostitute herself which, for that period of engagement, would have been an additional $190.00, making a total of $380.00. To that sum was added 10% for the use of a credit card, making a total of $418.00.
37 Counsel for the applicant asked me to infer that the respondent used services provided by Nolta at its brothel in the early hours of the morning of 12 June 2005. While that is one available interpretation of the evidence to which I have referred, the applicant's case as to the timing of the respondent's visit to the brothel depends on the Cabcharge records of his trip in the taxi from the city to Taylor Square. While I allow for the possibility that the identification of this destination - as given, I presume, by the driver concerned - may be an inexact one, there is nothing from which I could find on the probabilities that the respondent travelled directly to the address in Albion Street. But the evidence is such as to justify the inference, which I draw, that the respondent was in the vicinity in the early hours of the morning on 12 June 2005. I also find that the respondent used the CBA card to make a payment to Nolta at some time which, according to that company's administrative protocols, was between 11:30 pm on 11 June and 5:00 am on 12 June 2005. Given the nature of Nolta's only business and the explanation of how the sum of $418.00 would conventionally be accounted for by room rental and services known to have been provided by it during the period referred to, the natural inference is that, at some point over that period, the respondent obtained services, personal to himself, from Nolta at the brothel in Albion Street.
38 When the card issuer's statement for the CBA card was received by the HSU in the normal course, the respondent caused the total sum due on that statement, including the $418.00 which related to the transaction with Nolta, to be paid by the HSU. On this occasion, it was not possible to identify the category of expense against which this expenditure was entered in the HSU's MYOB accounting system, because the outlay was part of a large expense identified only as a bill from the Commonwealth Bank. On any view, however, the sum of $418.00 was paid to that bank by the HSU, and was so paid in the normal course of payments for which the respondent was responsible. The transaction to which the expenditure related had not been, and never was, authorised (save by the respondent himself), and was not disclosed to the National Executive.
39 With respect to the findings proper to be made under ss 286(1) and 287(1) of the schedule, the events of 11 or 12 June 2005, and the respondent's subsequent treatment of the relevant expenditure in the administration of the National Office of the HSU, are distinguishable from those of 7/8 April 2005 dealt with at paras 26-28 above in one respect only: there is no evidence of the terms in which the respondent vouched the June expenditure in the records of the HSU. In my view, that is a distinction without a difference. The respondent knew that the payment to Nolta would become payable by the HSU to the card issuer in the normal course, and would be so paid by staff under his control. Absent some intervention by him, the HSU would pay for a transaction which was his own personal affair; which was, of course, exactly what happened. To allow that to happen involved, in my view, a failure on the part of the respondent to discharge his duties in good faith in what he believed were the best interests of the HSU, a failure to discharge those duties for a proper purpose and the improper use of his position to gain an advantage for himself and to cause detriment to the HSU. I find, therefore, that, in relation to the events of 11 or 12 June 2005, the respondent acted in contravention of ss 286(1) and 287(1).
40 Chronologically, the next instance of the respondent using the funds of the HSU for his own purposes related not to personal services of the kind provided by escorts but to the prospective relocation of his residence from Melbourne to the Central Coast in the second half of 2005. In her evidence, Ms Thomson said that, in about October 2005, she and the respondent moved their residence from Melbourne to Forresters Beach. The applicant alleged, and the respondent admitted, that, from about November 2005 until 14 December 2007, he resided on the Central Coast. Allowing for some inexactness in these dates, this admission is not inconsistent with Ms Thomson's evidence.
41 The respondent took a day's leave from his work at the HSU on Friday 16 September 2005. He and his wife flew to Sydney on that day. They hired a car at Sydney airport. They stayed at the Westin Hotel on the nights of 16, 17 and 18 September. They returned to Melbourne on 19 September 2005. The time of their return flight to Melbourne is not disclosed in the evidence, and is not readily to be inferred. There is no suggestion that the respondent's leave extended to 19 September, but, in his electronic diary the whole of that day, from 7:30 am to 5:00 pm, was shown as "Central Coast".
42 While she could not recall the dates, Ms Thomson did recall at least two occasions when she and her husband travelled to Sydney, hired a car and looked at prospective residential properties for them in the event that they moved to the Central Coast. Mobile telephone records disclose that the respondent telephoned a real estate agent called Ray White at Bateau Bay at 11:42 am and at 12:04 pm on 17 September 2005. Six further calls, in total, were made by the respondent to four other real estate agents operating in the Central Coast region between 8:50 am and 12:21 pm on 19 September 2005. It is, of course, quite possible that the respondent was back in Melbourne at the time that he made some or all of the calls in this latter group, but nothing turns on that.
43 From the evidence to which I have referred, including the fact that the respondent took leave for the purpose on 16 September 2005, it is to be inferred that his travel to, and activities in, Sydney and the Central Coast over the period 16-19 September 2005 were unrelated to the functions of his office as National Secretary of the HSU.
44 The following expenses incurred by the respondent during this visit to Sydney and the Central Coast, were paid for by him using the Diners Club card:
Qantas $1,086.16
Thrifty Rent A Car $ 430.39
Pyrmont's Restaurant $ 105.00
Miro Tapas Bar $ 80.00
Quix Food Store $ 50.82
The Westin $1,622.40
Coles Express $ 57.91
Valet parking, Tullamarine $ 143.00
A total of $3,575.68.
45 The card issuer's statement for the Diners Club card was received by the HSU in the normal course. The whole of the sum claimed on that statement, including the $3,575.68 referred to above, was paid by the HSU in the normal course of payments for which the respondent was responsible. The transactions to which the expenditure related had not been, and never were, authorised (save by the respondent himself), and were not disclosed to the National Executive.
46 It was submitted on behalf of the applicant that the respondent's use of the funds of the HSU to pay for the expenses referred to above amounted to an improper use of his position to gain an advantage for himself, and to cause detriment to the HSU, within the meaning of s 287(1) of the schedule. I accept that submission. Relevantly, the respondent used his position to cause the HSU to pay for this excursion to the Central Coast, and the expenses which were incidental thereto, when they were his own affair, and no business of the HSU. The advantage was his own, the detriment the HSU's. His procurement of the HSU to pay the sums concerned gave rise, in my view, to a contravention of s 287(1).
47 With respect to s 286(1) of the schedule, by causing the HSU to pay for these personal expenses, the respondent failed to discharge his duties in good faith in what he believed to be the best interests of the HSU. Here there is no direct admission by the respondent on the subject of his own belief, but, in the absence of evidence from him, I have no hesitation in inferring that he did not believe that it was in the best interests of the HSU for it to pay for this excursion and the incidentals which it involved. Had there been any such belief, I can think of no reason why the respondent would not have informed the National Executive, even before the event, and had it give the necessary authorisation. Likewise, I have no hesitation in concluding that, in passing on the responsibility for this expenditure to the HSU, the respondent was not acting for a proper purpose: his purpose was to avoid having to pay for the excursion himself. This affair gave rise, in my view, to a contravention of s 286(1).
48 For the sake of the narrative, I mention next the adoption by the National Office of the HSU of a policy governing the use of credit cards. As I shall mention below, in September 2005 the respondent caused the HSU to employ, originally in a training role, Criselee Stevens. In early December 2005, she was provided with a Diners Club card on the HSU account, which she could use for work expenses. At some point, Ms Ord noticed that Ms Stevens had paid for "some kind of subscription for horoscopes or astrology" on her Diners Club card. She drew this to the attention of the respondent, who responded by approving and promulgating (Ms Ord could not recall the extent to which the wording was actually drafted by the respondent or herself) a written policy with respect to the use of credit cards. It contained the following injunction:
Any credit cards issued by The Health Services Union cannot be used for personal expenses. All expenses must be for business related purposes - a written notation next to the transaction is required for any items that are not self explanatory.
Ms Stevens was required to sign a copy of that policy and to return it to Ms Ord. So far as the respondent himself was concerned, of course, this policy went no further than to state an obvious dimension of his own obligations to the HSU. But the promulgation of the policy under his authority leaves no doubt as to his actual appreciation of those obligations. As the matters discussed so far in these reasons demonstrate, the respondent had regularly acted in contravention of what became his own policy. As the matters discussed below demonstrate, he continued to do so not withstanding that he had cause to turn his mind specifically to the limitations which the HSU should impose on the use of credit cards in its name.
49 The respondent was in Sydney over the period 25-26 August 2006. It is not established whether he stayed the night of 25 August 2006 in Sydney, made a separate trip to Sydney on each of those days (Friday/Saturday), or something else. But it is established on the pleadings that he was in Sydney "on or about 25 and 26 August 2006".
50 The card issuer's statement in respect of the CBA card for the period ending on 26 September 2006 contains an entry dated 26 August 2006 as follows: "STAFF CALL SURRY HILLS AUS $660.00". In evidence is a business names extract for the name "Staff Call". The name was registered on 3 December 1986 and removed on 3 March 2008. It was, therefore, extant in August 2006. The nature of the business is described as "Escort Agency". The principal place of business, as noted on the extract, was 377 Riley Street, Surry Hills, NSW, 2010.
51 The applicant submitted that I should infer that this business was one and the same as that registered as "A Touch of Class", in relation to which a Yellow Pages entry, under the category "Escort Services - Social", gave the address of 377 Riley Street, Surry Hills. This name was, in August 2006, owned by Ke-Su Investments Pty Ltd ("Ke-Su"). At the time, the secretary, and one of the directors, of Ke-Su was one Peter Lazaris (who also had a tiny shareholding in Ke-Su). Mr Lazaris was also, at the time, one of the three individual proprietors of the business name "Staff Call". It was submitted that these linkages justified the inference that Ke-Su traded as "A Touch of Class" and that Mr Lazaris used "Staff Call" as the merchant name for credit card sales made by Ke-Su.
52 I do regard it as established on the probabilities that, in August 2006, 377 Riley Street was the principal place of business of "Staff Call" and of "A Touch of Class"; and that, at that time, Mr Lazaris was a proprietor of the former and a director and the secretary of the latter. But to conclude that these ostensibly separate businesses were one and the same would be a matter of conjecture rather than inference. If it is to be inferred that the "Staff Call" business was that of an escort agency providing personal services, it must be for a reason other than the Yellow Pages entry in respect of the business "A Touch of Class".
53 There is such a reason: the business names extract for the "Staff Call" business itself. As noted above, the nature of that business was that of an escort agency operating from 377 Riley Street, Surry Hills. It seems clear from the card issuer's statement for the CBA card that, at some point when he was in Sydney over the period 25-26 August 2006, the respondent obtained services from this business and paid $660.00 for them. It is to be inferred that those services were personal to the respondent himself.
54 When the card issuer's statement for the CBA card was received by the HSU, the respondent caused the sum owing on that statement, including the expenditure of $660.00, to be paid. He caused his staff to enter the relevant transaction into the HSU's MYOB accounting system as a "teleconferencing" expense. The transaction to which the expenditure related had not been, and never was, authorised (save by the respondent himself), and was not disclosed to the National Executive.
55 With respect to the findings proper to be made under ss 286(1) and 287(1) of the schedule, the events of 25 or 26 August 2006, and the respondent's subsequent treatment of the relevant expenditure in the administration of the National Office of the HSU, are indistinguishable from those of 7/8 April 2005 dealt with at paras 26-28 above. Needless to say, the description of the relevant payment as "teleconferencing" was no less culpable than the description of the earlier payment as "meetings". I find that, in relation to the events of 25 or 26 August 2006, the respondent acted in contravention of those provisions.
56 The respondent was again in Sydney over the period 15-16 August 2007, this time staying at the Fraser Suites Hotel. At 12:55 am on 16 August 2007, a call was made from his mobile phone in the Sydney CBD to one of the numbers used by Keywed in its escort agency business. The identification of that number as relevant to that business was the subject of evidence from Ms Traunwieser. The number also corresponded with the number provided in an advertisement in the Sydney Yellow Pages in the category "Escort Services - Social", under the name "Escort Connections". At 1:12 am, Keywed telephoned the respondent's hotel. In evidence is a sales voucher on the CBA card in the sum of $385.00, dated 15 August 2007. The merchant was Keywed. On the card issuer's statement for the CBA card which was received by the HSU in the normal course, there were two entries, each in the amount of $385.00, each dated 16 August 2007 and each identifying the merchant as Keywed.
57 Ms Traunwieser said that, in the relevant period, she or someone else working for Keywed would receive telephone calls from clients seeking the services of escorts. In the case of a client who was at a hotel, she would obtain the name and address of the hotel, and the number of the client's room. If the client proposed to pay by credit card, she would obtain the card details at this point. She would sometimes call the hotel back, and ask to be put through to the client to confirm that the call was not a hoax. Ms Traunwieser said that some credit cards would attract a 10% surcharge, and that, in 2007, a payment of $385.00 would have secured the services of an escort for one hour, including the surcharge, but probably excluding transportation costs.
58 On the basis of this evidence, it is to be inferred that, in the early morning of 16 August 2007, the respondent telephoned the "Escort Connections" number of Keywed and requested the services of an escort. The return telephone call from Keywed to the respondent's hotel is consistent with what Ms Traunwieser said was sometimes her practice. Using the CBA card, the respondent paid Keywed, and it is to be inferred that he did so as consideration for personal services provided to himself. With respect to the sum of $385.00, additionally to the evidence of Ms Traunwieser referred to, I note that, in the Yellow Pages advertisement relevant to the number which the respondent called, the price of a service was given as $350.00: with the 10% credit card surcharge, the price payable by the respondent would have been $385.00.
59 The double entry on the card issuer's statement is unexplained in the evidence. The second entry might have related to a second person who engaged Keywed at that time, for which engagement the respondent used the CBA card to pay; it might have related to a second (ie subsequent) engagement by the respondent himself; it might have arisen from some error in the systems of Keywed or the card issuer; or it might be the result of something else altogether. Whatever the explanation may be for this double entry, it does not diminish the force of the applicant's factual case that the respondent used the CBA card to pay the sum of $385.00 (at least) for personal services which he obtained from Keywed on this occasion. I accept that case.
60 When the card issuer's statement for the CBA card was received by the HSU in the normal course, the respondent caused his staff to describe both $385.00 expenditures, in the HSU's MYOB accounting system, as "meetings" expenses. He caused the total sum due on that statement, including the sum of $770.00, to be paid by the HSU. The transaction or transactions to which the expenditure related had not been, and never was or were, authorised (save by the respondent himself), and was, or were, not disclosed to the National Executive.
61 With respect to the findings proper to be made under ss 286(1) and 287(1) of the schedule, the events of 16 August 2007, and the respondent's subsequent treatment of the relevant expenditure in the administration of the National Office of the HSU, are indistinguishable from those of 7/8 April 2005 dealt with at paras 26-28 above. I find that, in relation to the events of 16 August 2007, the respondent acted in contravention of those provisions.