Conquo v Jackson [2009] FCA 45

FEDERAL COURT OF AUSTRALIA

Conquo v Jackson [2009] FCA 45

DONNA MARGUERITE CONQUO v JEFF JACKSON

VID 33 of 2009

SUNDBERG J

5 FEBRUARY 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 33 of 2009

BETWEEN: DONNA MARGUERITE CONQUO

Applicant

AND: JEFF JACKSON

Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 5 FEBRUARY 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

Until the final determination of the proceeding or further order the respondent perform and observe the rules of the Health Services Union (the rules):

(a) by ceasing and refraining, by himself, his servants or agents, from obstructing, hindering or in any other way preventing Pitcher Partners, auditors, from carrying out an examination and preparing a report on any irregularities in the financial affairs of the Victoria No 1 Branch (the Branch) of the Health Services Union in accordance with the resolutions of the Branch Committee of the Branch made on 7 January 2009 (the resolutions), and (b) by providing to Pitcher Partners full access to the records of the Branch in accordance with the resolutions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 33 of 2009

BETWEEN: DONNA MARGUERITE CONQUO

Applicant

AND: JEFF JACKSON

Respondent

JUDGE: SUNDBERG J

DATE: 5 FEBRUARY 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 On 20 January 2009 the applicant obtained an order that the respondent show cause why orders under s 164 of Schedule 1 of the Workplace Relations Act 1996 (the Act) should not be made for the performance by him of the rules of the Health Services Union (Union). The proceeding relates to resolutions passed by the Branch Committee of the Victoria No 1 Branch that there be an independent investigation into allegations regarding misuse of Branch funds. The respondent, who is Secretary of the Branch, has declined to co‑operate with the investigation. The applicant is the Junior Vice‑President of the Branch. 2 The central events leading up to the proceeding are as follows. On 19 December 2008, Sonya McCormack, the Senior Vice‑President of the Branch, acting as President because of the suspension of the President, Pauline Fegan, called a meeting of the Branch Committee for 23 December. The purpose of the meeting was stated to be to appoint independent auditors to investigate the Branch's finances. Ms McCormack and the applicant were concerned about the truth of charges that had been laid by Shaun Hudson, Branch Assistant Secretary, against Ms Fegan, and more broadly about stories they had heard that unauthorised payments had been made by the Branch to Alex Hicks, the respondent and Mr Hudson. 3 The respondent refused to call a meeting of the Branch Committee for 23 December, but proposed to call one for 7 January 2009. In the meantime he procured a meeting of the National Executive of the Union to take place on 5 January 2009. That meeting resolved to have its own investigation carried out by an appropriate forensic accounting firm. The Executive also resolved that until that report was delivered, "there be no access to the relevant records … by any office holder or employee of any Branch [of] the Union", and that the Branch permit full access by the National Office to "those parts of the premises that they are entitled to have access to". 4 The resolutions recorded at [3] were the subject of other proceedings in the Court, which were settled on the basis that the resolutions were to be rescinded. This took place. 5 At the 7 January 2009 meeting the Branch Committee resolved that it: (a) appoint Stephen Whitchurch from Pitcher Partners to examine the financial and other records of the Branch and report on any irregularities in the financial affairs of the Branch since 1 January 2005, including but not limited to the dealings between the business Urban Giftware and the Branch, and to present the report to the Senior Vice‑President, Sonya McCormack upon completion; (b) authorises Mr Whitchurch to delegate the work to any employee of Pitcher Partners that he deems qualified to perform the duties; (c) delegates and directs Sonya McCormack to deal with any queries from Mr Whitchurch and Pitcher Partners concerning the investigation; (d) directs Sonya McCormack upon immediate receipt of the report to provide a copy of the report from Pitcher Partners to all members of the Branch Committee. The Committee also resolved to authorise payment of Pitcher Partners' reasonable fees and to direct the respondent to co‑operate with and assist Pitcher Partners in the preparation of the report, including providing full access to the records of the Branch. 6 On 8 January Mr Whitchurch attended at the Branch premises. The respondent was not there, and a security guard arranged with the respondent that he or Mr Hudson would call Mr Whitchurch "when they came in". Mr Whitchurch then left the premises. He was not telephoned by the respondent or Mr Hudson. 7 On 9 January the respondent's solicitors agreed that the respondent would meet Mr Whitchurch to discuss the investigation on 15 January. At that meeting the respondent and the National Secretary of the Union, Kathy Jackson, asked Mr Whitchurch about several matters, including how he came to be appointed, but refused to permit him to commence his investigations "today". The respondent claimed that the 7 January resolutions were invalid. He did not say why they were invalid. 8 Pursuant to an enquiry by the applicant's solicitor, Antonia Sakkas, as to the ground upon which the respondent contended that the resolutions were invalid, on 19 January the respondent's solicitors informed her that there was no quorum present at the 7 January meeting.