Eldridge v Wagga Wagga City Council

1. [1]

   BELL P:

Introduction

1. [2]

   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.

2. [3]

   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.

3. [4]

   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.

4. [5]

   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.

5. [6]

   Clause 10.4.1 of the Standard Contract, pursuant to which Mr Eldridge was terminated, provided that:

6. [7]

   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:

7. [8]

   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].

8. [9]

   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:

9. [10]

   In final address, the complaint in relation to personal expenses was confined to dinner expenses incurred on one particular occasion in October 2016.

10. [11]

    The Council summarised Mr Eldridge’s alleged breaches which it says justified his summary dismissal in its Further Amended Defence as follows:

11. [12]

    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.

12. [13]

    A number of the breaches summarised in [11] above overlapped in terms of their subject matter.

13. [14]

    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.

14. [15]

    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.

15. [16]

    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.

16. [17]

    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.

Summary of conclusions

1. [18]

   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.

2. [19]

   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.

3. [20]

   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.

4. [21]

   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.

5. [22]

   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.

6. [23]

   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.

7. [24]

   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.

8. [25]

   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.

9. [26]

   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:

10. [27]

    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.

11. [28]

    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.

12. [29]

    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.

13. [30]

    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.

14. [31]

    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.

15. [32]

    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.

Background facts

1. [33]

   This section of the judgment sets out background facts in relation to the conflicts of interest and non-declaration of pecuniary interest aspects of the case. It also sets out the key terms of Mr Eldridge’s employment contract, the Council’s various policies with which he was required to comply as well as the statutory obligations to which he was subject. It does not deal with Mr Eldridge’s involvement in the Katungul project. The detailed background to that involvement and the alleged breach of contract that that involvement entailed is set out at [407]–[473] below.

2. [34]

   Mr Eldridge has the following formal qualifications:

3. [35]

   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]:

4. [36]

   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]

5. [37]

   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.

6. [38]

   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”.

7. [39]

   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.

8. [40]

   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.

9. [41]

   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”.

10. [42]

    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.

11. [43]

    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.

12. [44]

    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”.

13. [45]

    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.

14. [46]

    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”.

15. [47]

    The file note recorded that [CB 2/954]:

16. [48]

    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:

17. [49]

    Under cross-examination, when asked why he was present at this meeting, Mr Eldridge said: [T. 395]:

18. [50]

    As at 2 September 2014, Mr Joshua Eldridge was aged 27 years.

19. [51]

    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.

20. [52]

    On 27 January 2015, Mr Kell sent an email to Mr Eldridge under the heading “Wagga Subdivision” as follows [CB 2/956]:

21. [53]

    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]:

22. [54]

    Later that same afternoon, Mr Joshua Eldridge replied to Mr Kell’s email as follows [CB 2/967]:

23. [55]

    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].

24. [56]

    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]:

25. [57]

    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]:

26. [58]

    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]:

27. [59]

    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]:

28. [60]

    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:

29. [61]

    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:

30. [62]

    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.

31. [63]

    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]:

32. [64]

    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.

33. [65]

    Mr Brunskill replied to Ms White’s email a short time later, as follows [CB 2/970]:

34. [66]

    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]:

35. [67]

    On 13 March 2015, Mr Eldridge replied in the following terms [CB 2/975]:

36. [68]

    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:

37. [69]

    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].

38. [70]

    In his email to his father and Mr Brunskill, Mr Joshua Eldridge wrote [CB 2/976]:

39. [71]

    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]:

40. [72]

    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].

41. [73]

    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].

42. [74]

    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.

43. [75]

    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).

44. [76]

    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.

45. [77]

    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.

46. [78]

    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.

47. [79]

    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.

48. [80]

    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:

49. [81]

    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:

50. [82]

    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].

51. [83]

    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]:

52. [84]

    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:

53. [85]

    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.

54. [86]

    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. (1)

       the proposed project’s compliance with the Wagga Wagga Spatial Plan 2013-2043;

    2. (2)

       the social, environmental and infrastructure context of the project;

    3. (3)

       analysis of the proposed project site;

    4. (4)

       the development footprint;

    5. (5)

       the indicative lot layout and lot sizes;

    6. (6)

       the necessary amendment to land use zoning; and

    7. (7)

       a summary and recommendation in the following terms [CB 2/1036]:

55. [87]

    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]:

56. [88]

    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:

57. [89]

    The material differences between the ICAC Produced Minutes dated 22 September 2015 and those produced from the Eldridge Archive were as follows:

58. [90]

    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.

59. [91]

    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:

60. [92]

    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.

61. [93]

    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.

62. [94]

    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]]:

63. [95]

    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]]:

64. [96]

    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]:

65. [97]

    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”.

66. [98]

    A media release issued by the Council on 7 October 2015 stated:

67. [99]

    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.

68. [100]

    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:

69. [101]

    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.

70. [102]

    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):

71. [103]

    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.

72. [104]

    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.

73. [105]

    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.

74. [106]

    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:

75. [107]

    In addition, s 459 of the Act provided as follows:

76. [108]

    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.

77. [109]

    Importantly, s 443 of the Act provided that:

78. [110]

    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.

79. [111]

    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].

80. [112]

    The material provisions of the Code as at 2015–2017 were as follows:

81. [113]

    Clause 7.12 of the Code provided:

82. [114]

    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:

83. [115]

    Clause 3.1.2 of the Policy, under the heading “General Manager”, provided:

84. [116]

    Clause 3.5 of the Policy provided:

85. [117]

    Under the Standard Contract, leave entitlements were governed by cl 9 which provided for:

86. [118]

    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:

87. [119]

    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:

88. [120]

    Mr Eldridge swore in his affidavit (at [78]) that he:

89. [121]

    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]

90. [122]

    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).

91. [123]

    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.

92. [124]

    Council staff at the time of Mr Eldridge’s appointment and during his tenure included:

93. [125]

    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].

94. [126]

    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.

95. [127]

    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]:

96. [128]

    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:

97. [129]

    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.

98. [130]

    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”.

99. [131]

    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.

100. [132]

     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.

101. [133]

     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]:

102. [134]

     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.

103. [135]

     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.

104. [136]

     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]

105. [137]

     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.

106. [138]

     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.

107. [139]

     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].

108. [140]

     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:

109. [141]

     Ms Golden responded on 11 March 2016 acknowledging “the confusion in the [Council’s] report” [CB 4/2537]. The letter continued:

110. [142]

     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].

111. [143]

     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].

112. [144]

     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.

113. [145]

     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:

114. [146]

     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.

115. [147]

     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]:

116. [148]

     The “Key Points” which Ms Rankin attached to this email included the following summary (with my underlining added):

117. [149]

     After this summary, Ms Rankin stated in bold with underlining that:

118. [150]

     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]:

119. [151]

     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].

120. [152]

     The response from the Department was that its advice continued to be:

121. [153]

     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.

122. [154]

     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.”

123. [155]

     It is at this point in the chronology that Mr Eldridge was formally appointed General Manager of the Council on a permanent basis.

124. [156]

     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]:

125. [157]

     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:

126. [158]

     The same letter stated, under the sub-heading “Mandatory Corporate Training” that:

127. [159]

     Mr Eldridge countersigned the letter of offer on 21 April 2016, thereby agreeing to its terms.

128. [160]

     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).

129. [161]

     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.”

130. [162]

     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.

131. [163]

     RP-1 contained the following relevant recommendation [CB 4/2801]:

132. [164]

     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).

133. [165]

     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:

134. [166]

     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”.

135. [167]

     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.

136. [168]

     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]:

137. [169]

     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.”

138. [170]

     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.

139. [171]

     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.

140. [172]

     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:

141. [173]

     On 24 May 2016, Mr Gray emailed Ms King and Mr Eldridge as follows [CB 5/2461]:

142. [174]

     The significance of this change of wording requires a little explanation.

143. [175]

     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.

144. [176]

     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).

145. [177]

     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.

146. [178]

     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.

147. [179]

     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”.

148. [180]

     Later in the course of the Council meeting on 30 May 2016, Mr Gray sent another email to Mr Eldridge notifying him that:

149. [181]

     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]:

150. [182]

     In cross-examination, the following exchange occurred in relation to this letter ([T 505]):

151. [183]

     On 18 July 2016, Ms Rankin emailed Mr Joshua Eldridge on the subject “Inglewood Road land” as follows [CB 5/3501]:

152. [184]

     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:

153. [185]

     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]:

154. [186]

     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].

155. [187]

     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].

156. [188]

     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.”

157. [189]

     The KMP form contained the following declaration executed by Mr Eldridge [CB 5/3713]:

158. [190]

     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.

159. [191]

     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.

160. [192]

     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]:

161. [193]

     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]:

162. [194]

     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.

163. [195]

     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]:

164. [196]

     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.

165. [197]

     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.

166. [198]

     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”.

167. [199]

     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].

168. [200]

     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].

169. [201]

     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].

170. [202]

     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].

171. [203]

     On 4 January 2017, Mr Eldridge filed his “Disclosure of Pecuniary Interest Return” for the period ended 30 June 2016 [CB 5/3836–3840].

172. [204]

     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]:

173. [205]

     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]:

174. [206]

     In his affidavit, Mr Eldridge said that he did not recall this conversation attributed to him but asserted that it was unlikely:

175. [207]

     In his oral evidence, Mr Eldridge denied this conversation.

176. [208]

     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.

177. [209]

     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.

178. [210]

     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]]:

179. [211]

     Ms Angel said that Mr Eldridge did not respond to her and left her office.

180. [212]

     Mr Eldridge denied that this conversation occurred.

181. [213]

     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:

182. [214]

     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.

183. [215]

     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]:

184. [216]

     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:

185. [217]

     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.

186. [218]

     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:

187. [219]

     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.

188. [220]

     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.

189. [221]

     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.

190. [222]

     Mr Gray denied the following portions of the conversation [CB 1/327]:

191. [223]

     Ms Hensley could not recall being present at this meeting and Mr Koschel was not called by either side.

192. [224]

     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.

193. [225]

     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.

194. [226]

     Ms Hensley’s detailed file note of the events of 16 and 17 February 2017 was as follows [CB 5/4158–4159]:

195. [227]

     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:

196. [228]

     As requested, items 1 and 2 were dealt with urgently.

197. [229]

     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.

198. [230]

     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:

199. [231]

     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.

200. [232]

     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].

201. [233]

     On 20 February 2017, Mayor Conkey emailed Mr Eldridge requesting a written report on the allegations in The Daily Advertiser.

202. [234]

     Mr Eldridge provided the following response that same day which was in these terms [CB 5/4146–4148]:

203. [235]

     Mayor Conkey kept an electronic diary. Portions were in evidence. The entry for 20 February 2017 included:

204. [236]

     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.

205. [237]

     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]:

206. [238]

     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]:

207. [239]

     Mayor Conkey’s diary note for 21 February 2017 recorded that:

208. [240]

     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.

209. [241]

     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]:

210. [242]

     This email elicited the following response from Councillor Vanessa Keenan:

211. [243]

     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”.

212. [244]

     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]:

213. [245]

     Mr Eldridge was placed on paid special leave until 31 March 2017.

214. [246]

     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.

215. [247]

     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.

216. [248]

     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.

217. [249]

     The first allegation was that Mr Eldridge:

218. [250]

     The second allegation was that Mr Eldridge:

219. [251]

     The third allegation was that Mr Eldridge:

220. [252]

     The fourth allegation was that Mr Eldridge:

221. [253]

     The allegation continued:

222. [254]

     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.

223. [255]

     The fifth allegation was as follows:

224. [256]

     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.

225. [257]

     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:

226. [258]

     On 23 May 2017, Ms Hensley wrote to all councillors as follows [CB 6/4459A]:

227. [259]

     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.

228. [260]

     On 25 May 2017, Hennessy Dowd wrote to Williamson Barwick as follows [CB 6/4459]:

229. [261]

     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.

230. [262]

     An extraordinary general meeting of the Council was called for Monday 29 May 2017.

231. [263]

     The minutes of that meeting record that [CB 6/4469]:

232. [264]

     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.

233. [265]

     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.

234. [266]

     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.

235. [267]

     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.

236. [268]

     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.

237. [269]

     Proceedings in this Court were ultimately commenced on 28 September 2018.

238. [270]

     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.

239. [271]

     On 11 September 2019, ICAC informed Mr Eldridge that [CB 6/5346–5347]:

240. [272]

     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.

241. [273]

     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.

242. [274]

     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.

Applicable legal principles

1. [275]

   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:

2. [276]

   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.

3. [277]

   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:

4. [278]

   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.

5. [279]

   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.

6. [280]

   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].

7. [281]

   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

8. [282]

   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.

9. [283]

   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.

10. [284]

    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).

11. [285]

    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.

12. [286]

    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).

13. [287]

    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.

14. [288]

    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.

15. [289]

    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).

16. [290]

    In Blyth Chemicals, Dixon and McTiernan JJ said at 80–81:

17. [291]

    In Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150, Gillard J held, at [254], that:

18. [292]

    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]:

19. [293]

    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:

20. [294]

    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]:

21. [295]

    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)]:

22. [296]

    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:

23. [297]

    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.

24. [298]

    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.

Mr Eldridge’s contentions

1. [299]

   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.

2. [300]

   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.

3. [301]

   As a fall back position, it was submitted on his behalf that:

4. [302]

   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.

5. [303]

   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.

6. [304]

   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.

7. [305]

   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.

8. [306]

   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.

9. [307]

   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.

10. [308]

    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.

Findings as to the credit of Mr Eldridge

1. [309]

   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.

2. [310]

   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.

3. [311]

   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.

4. [312]

   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.

5. [313]

   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.

6. [314]

   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]:

7. [315]

   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.

8. [316]

   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.

9. [317]

   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:

10. [318]

    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.

11. [319]

    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.

12. [320]

    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]:

13. [321]

    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”.

14. [322]

    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.

15. [323]

    When cross-examined about this email, Mr Eldridge said that it was [T. 635–636]:

16. [324]

    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]:

17. [325]

    I then asked Mr Eldridge the following series of questions:

18. [326]

    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.

19. [327]

    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.

20. [328]

    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:

21. [329]

    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:

22. [330]

    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:

23. [331]

    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:

24. [332]

    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]:

25. [333]

    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.

Findings as to the credit of other witnesses

1. [334]

   It is not necessary to express findings as to the credit of all of the other witnesses in the case for a number of reasons: first, a significant number of the witnesses called by the Council were not cross-examined and their evidence must be treated as unchallenged; secondly, not every witness who was cross-examined was challenged as to material parts of his or her evidence. Not every witness who was cross-examined, for example, gave evidence as to conversations which were disputed by Mr Eldridge. Thirdly, Mr Eldridge’s counsel did not advance any criticisms of the Council’s witnesses either in writing or oral address.

2. [335]

   Mayor Conkey was cross-examined at some length by Mr Fernon. He was challenged, in particular, about [20] of his first affidavit in which he elaborated upon concerns he said he had developed by late 2016 about Mr Eldridge’s integrity. That paragraph related to what Mayor Conkey described as Mr Eldridge’s “misuse of Council funds”. Mr Fernon demonstrated through his cross-examination of Mayor Conkey that some of these claims were not justified; in particular the implication that Mr Eldridge’s travel to Germany in business class when on Council business was not authorised. It was, and this suggested impropriety was not justified.

3. [336]

   This did not, however, detract in any significant way from my impression as to Mayor Conkey’s credibility more generally or the quality and honesty of his evidence. He did not purport to recall every detail or every conversation from late 2016 and early 2017 and I would not have expected him to do so. It was plain from his evidence that he relied heavily on the legal advice of Mr Barwick of Williamson Barwick in the period from mid-February up until Mr Eldridge’s dismissal in late May 2017. This was not surprising. He also made concessions where appropriate, such as in relation to the characterisation of some of the work done by LTL in the aftermath of the questions posed by The Daily Advertiser.

4. [337]

   As noted above, no adverse submission was made on behalf of Mr Eldridge as to Mayor Conkey’s credit.

5. [338]

   Deputy Mayor Tout presented as a careful and precise man. He is an accountant by training and holds a position as Senior Finance Manager for Charles Sturt University. He is also a long-time Councillor, having been a Councillor for Gundagai Shire Council between 1996 and 2008 (with six years as Deputy Mayor) and of Wagga Wagga City Council since 2012, being Deputy Mayor since 2014.

6. [339]

   Deputy Mayor Tout was measured in his evidence and displayed a good recollection of events under cross-examination which was supported by contemporaneous documents. He did not purport to recall every item of correspondence or document but when he did articulate a recollection, it accorded with the evidentiary record.

7. [340]

   Under cross-examination, Mr Kendall expressed the opinion that Mr Eldridge’s breaches of his Standard Contract “went to the core of his contract” and were “central to his contract”.

8. [341]

   Mr Kendall was a long-term Councillor and former mayor. He presented as a serious and sensible witness with a good recall of events. To the extent he was challenged as to his recollections, he stood firm in his evidence.

9. [342]

   At the time of giving his evidence, Mr Flack had retired from his position at the Council.

10. [343]

    As noted earlier in these reasons, his evidence was relevant to Mr Eldridge’s attribution to him of various statements in which Mr Eldridge claimed that he agreed to extra contractual entitlements such as eight weeks of additional leave and permission to engage in work outside his obligations to Council. Mr Flack denied such a conversation and I preferred his evidence to that of Mr Eldridge. As Mr Flack pointed out, it was not for him to authorise variations to Mr Eldridge’s Standard Contract. This would be a matter for the Council or the Mayor.

11. [344]

    To the extent that there was a clash between Mr Flack’s evidence and Mr Eldridge’s evidence, I preferred the evidence of Mr Flack.

12. [345]

    As with all of the Council’s witnesses, no adverse submission was made by Mr Fernon on behalf of Mr Eldridge in relation to Mr Flack’s credit.

13. [346]

    Ms Hensley was a careful witness and much of her evidence was supported by detailed file notes she had made at the time of the events in question. These were precisely the kinds of file notes I would have expected to see from a legally-trained corporate governance officer, such as she was. Other documents in the case such as her detailed instructions to Dr Taylor on the afternoon of 16 February 2017, showed her to be a highly competent professional.

14. [347]

    It was put to Ms Hensley in cross-examination that she had a prejudice against Mr Eldridge [T 174]. She denied this. The prejudice was said to arise from the fact that Ms Hensley sought advice from LTL as to the propriety of the Council paying for legal advice that was sought on 16 February 2017 and Ms Hensley’s concern that the advice was being sought at least in part for Mr Eldridge’s benefit: see at [236] above. There was nothing untoward in this and Ms Hensley’s request was that of a conscientious governance officer.

15. [348]

    The one reservation I had about Ms Hensley’s evidence but one which I do not consider to be ultimately material related to evidence she gave that the General Manager was expected to do a page by page review of all business papers in their entirety together with a page by page review of every attachment. I did not consider that this was realistic, practical or took account of the fact that each of the business papers was authorised by an identified Council officer with another more senior Council officer in effect taking responsibility for the paper by signing off on it. Ms Hensley ultimately accepted that that which she was speaking of was an “ideal world” [T. 191].

16. [349]

    Ms Angel presented in the witness box as a mature and seasoned professional bureaucrat who, prior to joining the Council, had been Project Management Office Manager for Air Services Australia. She deposed to having spent 12 years working in Australia and overseas in portfolio management of critical infrastructure projects across different industries. She is no longer employed by the Council.

17. [350]

    She was careful and measured in her evidence. She was articulate and able to explain in close detail the dynamics of particular relationships within the Council.

18. [351]

    Mr Eldridge recalled a conversation with Ms Angel in which she presented him with a single page from a document and asked him if he had a conflict of interest. Mr Eldridge said, however, that this did not relate to Inglewood Road but to a different development. This was not, however, put to Ms Angel by Mr Fernon in his cross-examination of Ms Angel, and preferred Ms Angel’s evidence to that of Mr Eldridge.

19. [352]

    I have no reason to doubt the accuracy of Ms Angel’s recollection of events whereas, for reasons already given, I have strong reasons to doubt the accuracy of Mr Eldridge’s account, and preferred Mr Angel’s evidence to that of Mr Eldridge.

20. [353]

    Mr Gray was not cross-examined at any great length by Mr Fernon which was somewhat surprising given the closeness with which he apparently worked with Mr Eldridge. Like Ms Hensley, Mr Gray had the benefit of a number of file notes which he took in the course of 2016 and which have been referred to earlier in this judgment. No attempt was made in the course of his cross-examination to challenge the accuracy or integrity of those file notes.

21. [354]

    It was put rather tentatively to Mr Gray that he did not appreciate Mr Eldridge’s style as General Manager. He did not accept this and nothing specific was put to him to suggest that he bore any malice or hostility towards Mr Eldridge.

22. [355]

    Given the lack of any real challenge to Mr Gray’s evidence, and my adverse view as to Mr Eldridge’s credit, to the extent that there was any clash between their respective evidence, I prefer that of Mr Gray.

23. [356]

    These witnesses gave evidence in relation to Mr Eldridge’s involvement in the Katungul project. I accept their evidence and deal with aspects of it in my discussion of that issue at [407]–[473] below.

Grounds relied upon by the Council

1. [357]

   It is convenient to analyse the alleged breaches by reference to the eight categories of conduct specified by the Council in its Further Amended Defence (see [11] above). In relation to each of these matters, it will be necessary to determine first whether or not the underlying factual allegations are made out or in issue and then to determine, if made out, whether they amounted to a breach of contract, and then to analyse the seriousness or persistence of any such breach.

2. [358]

   As an additional exercise, it will be necessary to determine whether any breaches established, considered cumulatively or in combination, were of such seriousness as to warrant or justify Mr Eldridge’s summary dismissal.

3. [359]

   It is convenient to commence with the Council’s case regarding Mr Eldridge’s alleged conflict of interest in relation to the Inglewood Road Planning Proposal as this occupied the vast bulk of the hearing and the cross-examination.

4. [360]

   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:

5. [361]

   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.

6. [362]

   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.

7. [363]

   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:

8. [364]

   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:

9. [365]

   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.

10. [366]

    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.

11. [367]

    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.

12. [368]

    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.

13. [369]

    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.

14. [370]

    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:

15. [371]

    Also not to be overlooked in this context were Mr Eldridge’s own words in his email to Mr Kell of 30 January 2015, referred to at [56] above:

16. [372]

    If the ICAC Produced Minutes of 22 September 2015 were accurate, and there is no reason, in my view, to doubt that they were, [2] it follows that Mr Eldridge was present at a meeting together with his son and Mr Brunskill where the first point noted at the meeting was that the Inglewood Road Planning Proposal had been submitted to Council.

17. [373]

    This was the proposal which came before Mr Eldridge in a number of different contexts during his time as General Manager. It was not buried in an attachment to a report. The reference to Inglewood Road Planning Proposal was prominent in Council and Committee agendas, titles of reports and business papers. The entirety of those papers and the attachments thereto would not have to have been read to appreciate this. The Inglewood Road Planning Proposal together with a proposal for Old Narrandera Road” was the subject of a public forum in which Mr Eldridge actively participated and indeed Mr Eldridge signed the letter of 9 June 2016 to Tristan Kell which bore the subheading “Local Environmental Plan Amendment Application, Inglewood Road, Gumly Gumly”.

18. [374]

    As noted above, Mr Eldridge was constrained to accept in cross-examination that the words, “Inglewood Rd, Gumly Gumly”, had he seen them, would have set off a “red flag’’ and that, had he seen them next to Mr Kell’s name, he would have connected the Inglewood Road Planning Proposal to the project his son was involved in. The truth is that he did see them but he nevertheless continued his involvement without disclosure to the Council.

19. [375]

    Something must be said of that involvement because it highlights that the conflict of interest was far more than something that may be sought to be excused as a technical breach. What is clear from [166]–[179] above is that Mr Eldridge took an active role in seeking to expedite the whole of the planning process through the aegis of the Planning Task Force and was opposed to Ms Rankin’s approach which was to work up an overall strategy for Wagga Wagga in accordance with what she saw as the Department of Planning’s requirements. Mr Eldridge, moreover, directed Mr Gray to “ensure that Liz [Rankin] stays out of this” and “[d]efinitely not to talk to the department”: see [179] above.

20. [376]

    It is not my role to consider or pass upon the competing merits of a bespoke Planning Task Force whose mission was to speed up planning processes involving rezoning and sub-division. What is relevant to observe, however, is that the faster the process, the quicker the Inglewood Road Planning Proposal could be dealt with and the profitable development of rezoned land advanced. Of course, one of the major beneficiaries of this would be Mr Joshua Eldridge and no doubt the real estate agency which he operated, First National Real Estate Eldridge. That business was at all material times owned by E Properties which in turn was wholly owned by Mr Eldridge, the company which Mr Eldridge never disclosed to Council, even belatedly, that he continued to own. This matter is dealt with further below.

21. [377]

    It is not to the point, contrary to submissions made on his behalf, that Mr Eldridge could not vote on the resolutions that came before the Strategy and Policy Committee or the whole Council, nor that the Planning Proposal was deferred at Council’s meetings. The deferral was not in terms that Ms Rankin had advised, but rather was in accordance with a resolution that had been specifically redrafted by Mr Eldridge which would bring the timing of the processing of the Proposal within the oversight of the Planning Task Force: see [173] above. It was also Mr Eldridge to whose attention Ms Golden said she would draw the issue raised in Mr Kell’s letter of 10 March 2016 (see [141] above) and it was Mr Eldridge who fielded Councillors’ questions in a Public Forum about the Inglewood Road and Old Narrandera Road Planning Proposals on 14 March 2016, indicating an ambition to process planning matters within 12 months. Not to be lost sight of this context was that Mr Eldridge had been advised on 13 February 2015, by Mr Dickson of AE Partnership that 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”: see at [57] above.

22. [378]

    In summary, Mr Eldridge failed to disclose a very significant conflict of interest of which he was fully aware throughout his tenure as Acting General Manager and General Manager of the Council. That in itself was a serious breach, but that breach was compounded when Mr Eldridge both involved himself in measures in Council that were directed to expediting the Planning Proposal and then engaged in brazen lies in his various emphatic denials of any awareness of his son’s interest in the Inglewood Road Planning Proposal when questions were raised about it. Those denials were made to the Mayor, the Council and the public. The lies were disgraceful and dishonest and represented a further breach of Mr Eldridge’s duties to the Council and those under his control.

23. [379]

    The Council was fully justified by reference to these matters alone in summarily dismissing Mr Eldridge, as it did, on 29 May 2017. As will be explained below, other, albeit not all, of the breaches on which the Council relied also justified his summary dismissal.

24. [380]

    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.

25. [381]

    The Council’s case based on failure to disclose pecuniary interests had four aspects to it, namely that Mr Eldridge:

26. [382]

    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.

27. [383]

    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.

28. [384]

    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.

29. [385]

    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.

30. [386]

    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.

31. [387]

    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.

32. [388]

    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).

33. [389]

    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.

34. [390]

    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.

35. [391]

    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.

36. [392]

    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.

37. [393]

    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]].

38. [394]

    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.

39. [395]

    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.

40. [396]

    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.

41. [397]

    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.

42. [398]

    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.

43. [399]

    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.

44. [400]

    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.

45. [401]

    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]]:

46. [402]

    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.

47. [403]

    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.

48. [404]

    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.

49. [405]

    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.

50. [406]

    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.

51. [407]

    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:

52. [408]

    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”.

53. [409]

    The Council alleged that during his employment as General Manager, Mr Eldridge:

54. [410]

    These allegations are sustained and it was a serious breach of Mr Eldridge’s contractual obligations to undertake the activities alleged by the Council.

55. [411]

    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.

56. [412]

    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]:

57. [413]

    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.

58. [414]

    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]:

59. [415]

    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].

60. [416]

    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.

61. [417]

    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.

62. [418]

    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]:

63. [419]

    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].

64. [420]

    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]:

65. [421]

    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.

66. [422]

    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”:

67. [423]

    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]:

68. [424]

    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:

69. [425]

    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.

70. [426]

    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]:

71. [427]

    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.

72. [428]

    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.

73. [429]

    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.

74. [430]

    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”.

75. [431]

    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]:

76. [432]

    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].

77. [433]

    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]:

78. [434]

    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]:

79. [435]

    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].

80. [436]

    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]:

81. [437]

    Mr Eldridge responded to this email on the evening of 8 July 2016 as follows [CB 5/3698]:

82. [438]

    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.

83. [439]

    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].

84. [440]

    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].

85. [441]

    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].

86. [442]

    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.

87. [443]

    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]:

88. [444]

    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.

89. [445]

    This line of cross-examination included the following exchanges [T. 639–643]:

90. [446]

    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”.

91. [447]

    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]:

92. [448]

    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.

93. [449]

    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].

94. [450]

    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].

95. [451]

    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]:

96. [452]

    Mr Darby sent the following response to Mr Cresp and Ms Grant approximately one hour later [CB 5/3728]:

97. [453]

    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].

98. [454]

    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).

99. [455]

    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.

100. [456]

     At [71] of his affidavit, Mr Eldridge gave evidence that:

101. [457]

     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]:

102. [458]

     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].

103. [459]

     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].

104. [460]

     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”.

105. [461]

     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:

106. [462]

     Phase 1 of the project, titled “planning”, was anticipated to constitute the following [Exhibit P1 at 5]:

107. [463]

     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.

108. [464]

     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.

109. [465]

     Recalling that cl 6.1.2(k) of the Standard Contract required Mr Eldridge to:

110. [466]

     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.

111. [467]

     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].

112. [468]

     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.

113. [469]

     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.

114. [470]

     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.

115. [471]

     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.

116. [472]

     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.

117. [473]

     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.

118. [474]

     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.

119. [475]

     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.

120. [476]

     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.

121. [477]

     A press release was also drafted which went through a number of iterations before its ultimate issue on 21 February 2017: see [238] above.

122. [478]

     Later work arising out of the original written instructions included a detailed letter of advice to Council dated 27 February 2017.

123. [479]

     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.

124. [480]

     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.

125. [481]

     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.

126. [482]

     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.

127. [483]

     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.

128. [484]

     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.

129. [485]

     I do not consider that Mr Eldridge’s termination could be justified by reference to the retainer of LTL without express approval.

130. [486]

     This complaint is a reference to the fact that the press release of 21 February 2017 was issued on Council letterhead.

131. [487]

     Whilst the press release purported to explain Mr Eldridge’s position, it was not inappropriate that it be made on Council letterhead given that the announcement related to and purported to rebut allegations that had been made in relation to the General Manager in respect of Council business.

132. [488]

     That the rebuttal turned out to be dishonest was the difficulty with the press release and not the use of Council letterhead per se. Had Mr Eldridge been telling the truth in denying any knowledge of his son’s involvement, as Mayor Conkey initially believed, I do not consider that the use of that letterhead to respond publicly to the allegations would have been disapproved of by Council, still less considered a breach, if it was one, which warranted either summary dismissal or even reprimand.

133. [489]

     This allegation was only permitted to be advanced to the extent it was incorporated into the more specific allegations that have been dealt with above: see [12] above.

134. [490]

     The findings in relation to these allegations make it unnecessary to say anything further under this sub-heading.

135. [491]

     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.

136. [492]

     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.”

137. [493]

     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]:

138. [494]

     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:

139. [495]

     The Council submitted that Mr Eldridge had:

140. [496]

     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.

141. [497]

     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.

142. [498]

     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:

143. [499]

     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:

144. [500]

     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].

145. [501]

     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:

146. [502]

     The evidence of Ms Galloway appeared to substantiate that of Mr Fitzpatrick, through the following recollection of events:

147. [503]

     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:

148. [504]

     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.

149. [505]

     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.

150. [506]

     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.

151. [507]

     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.

152. [508]

     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”.

153. [509]

     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.

Conclusion

1. [510]

   My conclusions have been summarised at [18]–[32] above, and set out at length in the balance of this judgment. Because of my findings on liability, no question of damages arises.

2. [511]

   For all of the above reasons, there should be judgment for the defendant Council. Mr Eldridge is ordered to pay the Council’s costs.