Prothonotary of the Supreme Court of New South Wales v Thomson

Court of Appeal (NSW)|2018-10-10|Before: Basten JA, Meagher JA, Douglas J

Solicitors: Crown Solicitor of NSW (Applicant) No appearance (Respondent) File Number(s): 2018/83791

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Introduction

THE COURT: The respondent (Mr Craig Robert Thomson) was admitted to the roll of legal practitioners in this State on 31 March 1995. He remains on the roll of this Court as an Australian lawyer, but has never held a practising certificate in any Australian jurisdiction. From around 1988, he was employed by the Health Services Union (HSU), initially as an industrial officer in the New South Wales branch. On 16 August 2002, he was elected as National Secretary of the HSU, in which position he remained until resigning following his election as a Member of the Federal Parliament for the seat of Dobell on 24 November 2007. He was subsequently found to have committed criminal offences, and civil contraventions of the Workplace Relations Act 1996 (Cth) (WR Act), in his position as National Secretary.
On 11 October 2016, Mr Thomson applied to the Law Society of New South Wales for a practising certificate. On 19 December 2016, the Law Society Council notified him of its refusal to grant a practising certificate on the basis of his criminal convictions. On 23 February 2017, the Law Society informed the Prothonotary of the Court of that refusal. By summons filed on 15 March 2018, the Prothonotary applied for declarations that Mr Thomson has been guilty of professional misconduct, is not a person of good fame and character, and is not a fit and proper person to remain on the roll of legal practitioners of the Court. The Prothonotary also seeks orders for the removal of his name from that roll, and for costs. Mr Thomson neither contests that application nor appeared in Court. In his letter addressed to the "Registrar and Members of the Supreme Court of NSW" dated 25 July 2018, he stated: I do not intend to make any statement in this matter. I am not contesting the application and will not be appearing for health and financial reasons that saw me not contest the [Fair Work] application in the civil matter referred to in these proceedings. I accept the position of the Law Society of NSW and do not wish to incur costs to anyone for this matter which is why I volunteered to undertake not to apply for a practice certificate for such time as the Law Society saw fit.

Nature of the application

As this proceeding invokes the Supreme Court's inherent jurisdiction and disciplinary powers with respect to a legal practitioner, it is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(k); Supreme Court Rules 1970 (NSW), Pt 65A, r 2. Although the summons might also have constituted an application under Legal Profession Uniform Law (NSW) (LPUL), s 23(1)(b), the Prothonotary only relies on the inherent jurisdiction and powers, preserved by LPUL, s 264(1). Thus, the order for removal does not depend on a finding that Mr Thomson engaged in "professional misconduct" as defined in LPUL, s 297 (and a declaration in those broad terms in this application would have little if any utility). Rather, "the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of [this] Court" as "at the time of the hearing": A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [15], [21].
In determining such an application, the Court must satisfy itself that any orders made are appropriate in all the circumstances, even if the proceeding is uncontested: Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 at [27] (McColl JA). The Court should also make appropriately detailed factual findings, both to advance public confidence in the control and discipline of the profession and to assist those tasked with determining any future application for readmission: Bridges v Law Society (NSW) [1983] 2 NSWLR 361 at 362 (Moffitt P); New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [24] (Spigelman CJ, Mason P and Handley JA agreeing); Council of New South Wales Bar Association v Power (2008) 71 NSWLR 451 at [9]-[11] (Hodgson JA, Beazley and McColl JJA agreeing).

Factual background

The findings necessary to determine this application have two sources in the evidence. First, an agreement as to facts for the purpose of this proceeding signed by Mr Thomson on 13 June 2018 establishes the nature and circumstances of his offences and contraventions: see Evidence Act 1995 (NSW), s 191. Secondly, Mr Thomson's correspondence with the Law Society, annexed to an affidavit sworn on 15 March 2018 by Ms Foord, the Director of Professional Standards at the Law Society, reveals his current attitude towards his earlier conduct. In making the findings set out below, it has not been necessary to determine the admissibility in this proceeding of the "Statement of Non-Disputed Facts" prepared by the prosecution for use in the County Court of Victoria appeal by way of a hearing de novo from Mr Thomson's earlier conviction and sentence in the Melbourne Magistrates' Court.
Two months after he was elected as National Secretary of the HSU, Mr Thomson established a business account for the HSU National Office in Victoria with the Commonwealth Bank of Australia (CBA). He was the only signatory to this account, which included a CBA credit MasterCard with a cash withdrawal facility accessible by PIN. In accordance with HSU policy, that card was only to be used for work-related expenses. Irregularities in the accounts for the card were, however, revealed by an exit audit conducted after Mr Thomson's resignation as National Secretary.
On 15 December 2014, in the proceeding in the County Court, Mr Thomson was found guilty of 12 charges of stealing cash belonging to the HSU, amounting to at least $5,350, over a four-year period from October 2003 to October 2007: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 15 December 2014). Those charges are attached as Annexure A to the statement of agreed facts and to these reasons. Mr Thomson does not dispute that he engaged in the conduct that was the subject of those charges, and in particular that he stole cash belonging to the HSU using the MasterCard cash withdrawal facility. On 17 December 2014, he was convicted and, by way of sentence, ordered to pay an aggregate fine of $25,000 and compensation to the HSU of $5,650: Director of Public Prosecutions v Thomson (County Court of Victoria, Judge Douglas, 17 December 2014). As at 13 June 2018, he had paid the fine, but not the compensation.
Earlier, in 2012, the Fair Work Commission had commenced civil penalty and compensation order proceedings against Mr Thomson for contraventions of the WR Act. On 11 September 2015, Mr Thompson was found to have contravened ss 285, 286 and 287 of that Act, which required him to exercise his powers and discharge his obligations with reasonable care and diligence, and in good faith in what he believed to be the best interests of the HSU and for a proper purpose; and prohibited improper use of his position to gain any advantage for himself or cause detriment to the HSU: General Manager of the Fair Work Commission v Thomson (No 3) [2015] FCA 1001 (Jessup J). Again, Mr Thomson does not dispute that he engaged in the conduct forming the basis of the contraventions as described in Annexure B to the statement of agreed facts and to these reasons, and numbered using Arabic and Roman numerals.
That conduct, over a period between September 2005 and December 2007, may be summarised as follows: 1. using HSU credit cards to purchase escort services and make cash withdrawals for private use or to fund Mr Thomson's and his wife's travel expenditure, in every case not reporting such use; and 2. applying HSU funds or other resources to further his election campaign for the seat of Dobell, including by direct expenditure (on, for example, campaign travel, postage and advertising expenses), donations to local charities and causes (such as Central Coast Convoy and Golden Years Collectibles) and the use of the services of HSU employees (specifically Ms Stevens and Mr Burke) for the purposes of that campaign.
On 15 September 2015, Jessup J made orders imposing an aggregate penalty of $175,550, but providing that penalties imposed for contraventions identified by a Roman numeral would be stayed if the penalty with a corresponding Arabic numeral ($80,050 in total) was paid within 74 days. In addition, Mr Thomson was ordered to pay the HSU compensation of $231,243 and pre-judgment interest of $146,937: General Manager of the Fair Work Commission v Thomson (No 4) [2015] FCA 1433 (Jessup J). As at 13 June 2018, he had not paid the penalties, compensation or interest.
By way of disclosure directed to whether he considered himself a "fit and proper person", Mr Thomson's application for a practising certificate in October 2016 noted a conviction for "theft of between $3500 and $5500 from employer" and sentence by way of a "fine of $25,000". But it made no reference to the contraventions of the WR Act, which Ms Foord subsequently raised in a letter notifying of a show cause event. In response, Mr Thomson challenged some uncontested allegations in the criminal proceeding and conclusions in the contravention proceeding. He also referred to his "fragile mental condition and related mental health issues"; insisted that he had "largely spent a lifetime in honourable public service"; and asserted that he was a "person of good character and a fit and proper person that can honourably conduct himself as a solicitor if given that opportunity". In later correspondence, Ms Foord notified Mr Thomson that she proposed to ask the Council to refuse his application. In his further submissions to the Council, Mr Thomson claimed that he had accepted "responsibility for the outcome of [the two Court decisions] and … either repaid or [was] in the process of repaying fines and debts that arise from those two proceedings".

Legal principles

The ultimate question for this Court is whether Mr Thomson is a fit and proper person to remain on the roll. Its determination requires the application of established principles reflecting the purpose of disciplinary proceedings against a legal practitioner, which is the protection of the public, rather than the punishment of that individual: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251 (Deane, Dawson, Toohey and Gaudron JJ). In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20], Spigelman CJ identified four "interrelated interests" which may be regarded as protected by such proceedings: Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
Three principles are particularly significant in this application.
First, although the fact of a criminal conviction and sentence is not necessarily sufficient to disqualify a person from continuing as a member of the legal profession, the defects of character revealed by the criminal conduct, and the disgrace flowing from conviction, may be incompatible with practice: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 especially at 288 (Fullagar J), 298 (Kitto J). That consequence follows more readily in relation to crimes involving dishonesty and misappropriation. In Re Davis (1947) 75 CLR 409 at 420, Dixon J observed that a member of the Bar must: … command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would almost seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the existence in a candidate for admission to the Bar of the reputation and the more enduring moral qualities denoted by the expression, 'good fame and character', which describe the test of his ethical fitness for the profession.
These considerations are not limited to applicants for admission to the Bar; they apply with equal, if not greater, force to practitioners who may seek to work as solicitors, in which capacity they would be entitled to hold trust moneys on behalf of clients. And an unfitness to do so may be shown by the commission of misappropriation offences with less objective seriousness than crimes such as break, enter and steal.
Secondly, conduct occurring outside the practice of law may nevertheless indicate a present unfitness to practice: Ziems at 290 (Fullagar J). As explained by Mason P in New South Wales Bar Association v Hamman [1999] NSWCA 404; (1999) 217 ALR 553 at [21]: The fact that the misconduct is not directly involved with practice in the law makes no difference where, as is conceded in the present case, the practitioner's behaviour would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203)."
Mr Hamman's tax offences were described as involving "significant and prolonged dishonesty for personal gain": at [101]. Repeated misappropriation from any entity that has entrusted a person with control of its funds will expose a characteristic inconsistent with the holding of trust moneys for clients.
Thirdly, fitness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an "agent of justice": Davis at 426 (Dixon J); Prothonotary v Montenegro [2015] NSWCA 409 at [70] (Meagher and Leeming JJA and Emmett AJA); Prothonotary v Comeskey [2018] NSWCA 18 at [29]-[31] (Basten JA). That obligation of candour applies especially in relation to the disclosure of past misconduct that is otherwise relevant to fitness to practise. Non-compliance with this obligation may confirm that defects in character remain or demonstrate a further inadequacy: see Thomas v Legal Practitioners Admissions Board (2005) 1 Qd R 331 at 333; [2004] QCA 407, where de Jersey CJ observed that "making candid disclosure of relevant information … demonstrates a proper perception of [the] duty" and thereby demonstrates good character.

Determination

The evidence establishes, and we find, that Mr Thomson engaged in the criminal and contravening conduct described in Annexures A and B to this judgment, and that he was convicted of the offences and found to have committed the contraventions described in the judgments of the County Court of Victoria and Federal Court of Australia referred to in [7] and [8] above. That conduct included theft and other misappropriation of funds belonging to the HSU and abuse of a fiduciary or a quasi-fiduciary position, in each case over an extended period. Mr Thomson's conduct involved, in the language of Hamman, "significant and prolonged dishonesty for personal gain".
Mr Thomson has not suggested that the deficiencies of character revealed by that conduct are shown no longer to be present and that he has undergone a reformation of character sufficient to justify the conclusion that he is presently a fit and proper person. To do so would first require that he demonstrate an appreciation of his obligation of candour in relation to that past conduct. Mr Thomson has neither demonstrated that appreciation nor acted consistently with it. In his application to the Law Society for a practising certificate, he failed to disclose the Federal Court findings as to his contraventions of the WR Act. He maintained in that application that he was a fit and proper person "despite the conviction" for a number of reasons, none of which included a candid and comprehensive disclosure of, or explanation for, the misconduct outlined above, so as to justify a finding that he truly understands the "high degree of trust which the Court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise": Re Hampton [2002] QCA 129 at [37] (White J). Finally, he has not paid the penalties ordered by the Federal Court or the compensation ordered by either Court or otherwise demonstrated an insight into the serious deficiencies revealed by his conduct.
For all these reasons, we are satisfied that presently Mr Thomson is not a fit and proper person to remain on the roll of lawyers. Accordingly, the Court makes the following declarations and orders: 1. Declare that Craig Robert Thomson is not a person of good fame and character; 2. Declare that Craig Robert Thomson is not a fit and proper person to remain on the roll of Australian lawyers maintained by the Supreme Court of New South Wales; 3. Order that the name of Craig Robert Thomson be removed from the roll of Australian lawyers maintained by the Supreme Court of New South Wales; 4. Order that Craig Robert Thomson pay the Prothonotary's costs of the proceedings.

Annexure A: Director of Public Prosecutions v Thomson (Reasons for Sentence, County Court of Victoria Judge Douglas, 17 December 2014) No Charge 9 Craig Thomson at Melbourne between 9 October and 10 October 2003 did steal cash being property belonging to the Health Services Union and valued at $200.00 22 Craig Thomson at Melbourne on 22 November 2005 did steal cash being property belonging to the Health Services Union and valued at $200.00 32 Craig Thomson at Melbourne between 20 April and 21 April 2006 did steal cash being property belonging to the Health Services Union and valued at $400.00 47 Craig Thomson at Melbourne between 12 June and 13 June 2007 did steal cash being property belonging to the Health Services Union and valued at $500.00 58 Craig Thomson at Melbourne between 19 September and 20 September 2007 did steal cash being property belonging to the Health Services Union and valued at $800.00 160 Craig Thomson at Melbourne between 7 June and 8 June 2006 did steal cash being property belonging to the Health Services Union and valued at $500.00 163 Craig Thomson at Melbourne on 15 December 2006 did steal cash being property belonging to the Health Services Union and valued at $500.00 169 Craig Thomson at Melbourne on 9 October 2007 did steal cash being property belonging to the Health Services Union and valued at $350.00 173 Craig Thomson at Melbourne between 27 May and 28 May 2005 did steal cash being property belonging to the Health Services Union and valued at $400.00 219 Craig Thomson at Melbourne on 13 June 2007 did steal cash being property belonging to the Health Services Union and valued at $500.00 220 Craig Thomson at Melbourne on 19 June 2007 did steal cash being property belonging to the Health Services Union and valued at $500.00 223 Craig Thomson at Melbourne on 15 September 2005 did steal cash being property belonging to the Health Services Union and valued at $500.00

Sentence With conviction order that Craig Thomson pay an aggregate fine in the sum of $25,000.00 Order that Craig Thomson pay the amount to the Registrar of the County Court Order that Craig Thomson pay compensation in the sum of $5,650.00 as follows: -$5,650 to the Health Services Union of Australia

Annexure B: General Manager of Fair Work Commission v Thomson (No 4) [2015] FCA 1433 (Jessup J) 1 2 3 No. Conduct Penalty 1 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the cost of personal services obtained by him on or about 8 April 2005 from Keywed Pty Ltd, in the sum of $2,475, to be paid by that union. $4,800 (i) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by omitting to record the true nature of the payment of $2,475 made to Keywed Pty Ltd in respect of personal services obtained by him on or about 8 April 2005, and by causing the account received from the issuer of the credit card upon which that payment was made to be settled by that union. $4,500 2 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the cost of personal services obtained by him on or about 7 May 2005 from International Immobiliare Pty Ltd, in the sum of $770, to be paid by that union. $4,800 (ii) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by omitting to record the true nature of the payment of $770 made to International Immobiliare Pty Ltd in respect of personal services obtained by him on or about May 2005, and by causing the account received from the issuer of the credit card upon which that payment was made to be settled by that union. $4,500 3 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the cost of personal services obtained by him on or about 12 June 2005 from Nolta Pty Ltd, in the sum of $418, to be paid by that union. $4,800 (iii) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by omitting to record the true nature of the payment of $418 made to Nolta Pty Ltd in respect of personal services obtained by him on or about 12 June 2005, and by causing the account received from the issuer of the credit card upon which that payment was made to be settled by that union. $4,500 4 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the costs incurred by himself and his wife in travelling from Melbourne to the Central Coast, and the accommodation and incidental costs associated with that travel, over the period 16-19 September 2005, in the sum of $3,575.68, to be paid by that union. $4,800 (iv) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by causing the costs incurred by himself and his wife in travelling from Melbourne to the Central Coast, and the accommodation and incidental costs associated with that travel, over the period 16-19 September 2005, in the sum of $3,575.68, to be paid by that union. $4,500 5 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the cost of personal services obtained by him on or about 25 August 2006 from Staff Call, in the sum of $660, to be paid by that union. $4,800 (v) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by omitting to record the true nature of the payment of $660 made to Staff Call in respect of personal services obtained by him on or about 25 August 2006, and by causing the account received from the issuer of the credit card upon which that payment was made to be settled by that union. $4,500 6 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by causing the cost of personal services obtained by him on or about 16 August 2007 from Keywed Pty Ltd, in the sum of $385, to be paid by that union $4,800 (vi) The exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia otherwise than in good faith in what he believed were the best interests of that union, and otherwise than for a proper purpose, by omitting to record the true nature of the payment of $385 made to Keywed Pty Ltd in respect of personal services obtained by him on or about 16 August 2007, and by causing the account received from the issuer of the credit card upon which that payment was made to be settled by that union. $4,500 7 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about September 2005 and December 2007, deploying the services of Criselee Stevens on work which related either to the elevation of his own profile in the Central Coast in the period leading up to the Australian Labor Party pre-selection process or to his election campaign thereafter. $5,500 (vii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about September 2005 and December 2007, by deploying the services of Criselee Stevens on work which related either to the elevation of his own profile in the Central Coast in the period leading up to the Australian Labor Party pre-selection process, or to his election campaign thereafter, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $5,000 In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about September 2005 and December 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances by causing an account to be kept - (vii) (a) of the time that Criselee Stevens, an employee of that union under the respondent's supervision, was occupied on the work of that union and on work which had other purposes, and $3,000 (b) of the outlays which Ms Stevens made on the union's credit card which the respondent's had caused to be issued to her which were for the purposes of that union and for other purposes. 8 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about April 2006 and March 2007, deploying the services of Matthew Burke on work which related either to the elevation of his own profile in the Central Coast in the period leading up to the Australian Labor Party pre-selection process or to his election campaign thereafter. $5,500 (viii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about April 2006 and March 2007, by deploying the services of Matthew Burke on work which related either to the elevation of his own profile in the Central Coast in the period leading up to the Australian Labor Party pre-selection process, or to his election campaign thereafter, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $5,000 In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about April 2006 and March 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances by causing an account to be kept - (viii) (a) of the time that Matthew Burke, an employee of that union under the respondent's supervision, was occupied on the work of that union and on work which had other purposes, and $3,000 (b) of the outlays which Mr Burke made on the union's credit card which the respondent's had caused to be issued to him which were for the purposes of that union and for other purposes. 9 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about March and December 2007, authorising Matthew Burke, no longer an employee of that union to retain his union credit card to be used in respect of outlays which were not for the purposes of that union. $5,000 (ix) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about March and December 2007, by authorising Matthew Burke, no longer an employee of that union, to retain his union credit card to be used in respect of outlays which were not for the purposes of that union, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $4,500 (ix) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about March and December 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent authorised Matthew Burke, no longer an employee of that union, to retain his union credit card to be used in respect of outlays which were not for the purposes of that union. $2,500 10 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, in or about May 2006, causing that union to make outlays amounting to $3,747.85 in respect of the activities of a community organisation founded on his initiative called "Coastal Voice", the making of those outlays having been substantially influenced by the respondent's desire to increase his profile on the Central Coast in order to further his political career. $2,500 (x) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, in or about May 2006, by causing that union to make outlays amounting to $3,747.85 in respect of the activities of a community organisation founded on his initiative called "Coastal Voice", that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose, but for the purpose of increasing the respondent's profile on the Central Coast and the furtherance of his political career. $2,000 (x) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in or about May 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to make outlays amounting to $3,747.85 in respect of the activities of a community organisation founded on his initiative called "Coastal Voice", the making of those outlays having been substantially influenced by the respondent's desire to increase his profile on the Central Coast in order to further his political career. $1,000 11 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, in about July and December 2006, causing that union to pay $3,500 in respect of tables at a function organised by the Federal Electoral Council for the electorate of Dobell where the respondent was seeking pre-selection as the candidate for the Australian Labor Party. $2,500 (xi) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, in about July and December 2006, by causing that union to pay $3,500 in respect of tables at a function organised by the Federal Electoral Council for the electorate of Dobell that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose, but pursuant to the respondent's endeavour to secure pre-selection as the candidate for the Australian Labor Party in that electorate. $2,000 (xi) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in about July and December 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $3,500 in respect of tables at a function organised by the Federal Electoral Council for the electorate of Dobell without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $1,000 12 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about April and December 2007, causing that union to pay $4,103 for the expenses of his campaign office as the Australian Labor Party candidate for the electorate of Dobell. $4,000 (xii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about April and December 2007, by causing that union to pay $4,103 for the expenses of his campaign office as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $3,500 (xii) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about April and December 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $4,103 for the expenses of his campaign office as the Australian Labor Party candidate for the electorate of Dobell, without] maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $3,000 13 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about July and October 2007, causing that union to pay $1,277.96 for the expenses of operating a promotional bus in his campaign as the Australian Labor Party candidate for the electorate of Dobell. $3,000 (xiii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about July and October 2007, by causing that union to pay $1,277.96 for the expenses of operating a promotional bus in his campaign as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $2,500 (xiii) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about July and October 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $1,277.96 for the expenses of operating a promotional bus in his campaign as the Australian Labor Party candidate for the electorate of Dobell, without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $2,000 14 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about May and July 2007, causing that union to pay $7,253.17 as postage expenses in his campaign as the Australian Labor Party candidate for the electorate of Dobell. $3,250 (xiv) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about May and July 2007, by causing that union to pay $7,253.17 as postage expenses in his campaign as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $2,750 (xiv) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about May and July 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $7,253.17 as postage expenses in his campaign as the Australian Labor Party candidate for the electorate of Dobell, without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $2,250 15 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, in or about May 2007, causing that union to pay $12,511.40 on advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell. $3,500 (xv) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, in or about May 2007, by causing that union to pay $12,511.40 on advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $3,000 (xv) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in or about May 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $12,511.40 on advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $2,500 16 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about October and November 2007, causing that union to pay $18,733.00 on radio advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell. $3,500 (xvi) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about October and November 2007, by causing that union to pay $18,733.00 on radio advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $3,000 (xvi) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about October and November 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $18,733.00 on radio advertising related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $2,500 17 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, between about May and November 2007, causing that union to pay $10,763.00 on printing related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell. $3,500 (xvii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, between about May and November 2007, by causing that union to pay $10,763.00 on printing related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $3,000 (xvii) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia between about May and November 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $10,763.00 on printing related to his election campaign as the Australian Labor Party candidate for the electorate of Dobell, without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $2,500 18 In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in or about 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that he caused that union to enter into a contract with the Central Coast Rugby League, under which that union incurred a liability of $106,393.23, without the prior approval of the National Executive or the National Council. $3,500 19 In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia on or about 8 August 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that he caused that union to make a payment of $2,400.00 to Julie Williamson for a multiple sclerosis fundraising lunch, without the prior approval of the National Executive or the National Council. $750 20 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, in or about September 2006, causing that union to make a $5,000 donation to "Central Coast Convoy for Kids" without the prior approval of the National Executive or the National Council of that union. $1,250 (xx) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, in or about September 2006, by causing that union to make a $5,000 donation to "Central Coast Convoy for Kids" without the prior approval of the National Executive or the National Council of that union, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $1,000 (xx) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in or about September 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to make a $5,000 donation to "Central Coast Convoy for Kids' without the prior approval of the National Executive or the National Council. $750 21 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, on or about 25 November 2006, causing that union to pay $2,050 for the purchase of sporting memorabilia to be used for fund raising purposes by the Federal Electoral Council for the electorate of Dobell where the respondent was seeking pre-selection as the candidate for the Australian Labor Party. $2,500 (xxi) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, on or about 25 November 2006, by causing that union to pay $2,050 for the purchase of sporting memorabilia to be used for fund raising purposes by the Federal Electoral Council for the electorate of Dobell, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose, but pursuant to the respondent's endeavour to secure pre-selection as the candidate for the Australian Labor Party in that electorate. $2,000 (xxi) ln the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia on or about 25 November 2006, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to pay $2,050 for the purchase of sporting memorabilia to be used for fund raising purposes by the Federal Electoral Council for the electorate of Dobell without maintaining a scrupulous separation of the transactions for which he might properly use the funds and resources of that union and those which he ought to have funded otherwise. $1,000 22 The respondent's improper use of his position as National Secretary of the Health Services Union of Australia to gain an advantage for himself, and to cause detriment to that union, by, in or about August and December 2007, causing that union to make a $10,000 donation to "Dads in Education" without the prior approval of the National Executive or the National Council of that union. $1,500 (xxii) The respondent's exercise of his powers and the discharge of his duties as National Secretary of the Health Services Union of Australia, in or about August and December 2007, by causing that union to make a $10,000 donation to "Dads in Education" without the prior approval of the National Executive or the National Council of that union, that exercise of powers and discharge of duties having been done neither in good faith in what the respondent believed were the best interests of that union nor for a proper purpose. $1,250 (xxii) In the exercise of the respondent's powers and the discharge of his duties as National Secretary of the Health Services Union of Australia in or about August and December 2007, failing to do so with the degree of care and diligence that a reasonable person would exercise in the circumstances in that the respondent caused that union to make a $10,000 donation to "Dads in Education" without the prior approval of the National Executive or the National Council. $1,000

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Workplace Relations Act 1998(Cth)

Workplace Relations Act 1996(Cth)

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Judgment (11 paragraphs)

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Legislation Cited (5)

Cases Cited (18)

Cited By (6)