Eldridge v Wagga Wagga City Council - [2021] NSWSC 312

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Eldridge v Wagga Wagga City Council [2021] NSWSC 312
Hearing dates: 2, 3, 4, 5, 8, 9, 10, 11 and 12 March 2021
Date of orders: 31 March 2021
Decision date: 31 March 2021
Jurisdiction: Common Law
Before: Bell P
Decision:
1. Judgment for the defendant.
2. Plaintiff to pay the defendant’s costs.

Catchwords:
CONTRACTS – contract of employment – breach of contract – consequences of breach – right to termination – where termination without notice – onus of demonstrating that termination was justified – where additional grounds available to justify termination
EMPLOYMENT AND INDUSTRIAL LAW – contract – conditions of employment – whether plaintiff breached conditions of employment by failure to disclose pecuniary interests, engagement in external work, and “assorted misconduct”
EMPLOYMENT AND INDUSTRIAL LAW – contract – termination – summary dismissal – whether the plaintiff engaged in serious or persistent breaches of his contract of employment which entitled the defendant summarily to dismiss the plaintiff without notice
EMPLOYMENT AND INDUSTRIAL LAW – public sector – local government – General Manager of council – determinations as to allegations of serious breaches of contract of employment giving rise to summary dismissal
LOCAL GOVERNMENT – public officers – disclosure of interests – Local Government Act 1993 (NSW) part 2, div 1 – whether plaintiff knew or ought reasonably to have known that disclosure was false or misleading in a material particular

Legislation Cited:
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Evidence Act 1995 (NSW) ss 136, 140(2)
Local Government Act 1993 (NSW) ss 334, 335, 338, 339, 353(1), 439(1), 440, 442(1), 443, 445, 451, 449, 459, 460(1), 462, 465, 468, 469, 478(1), 482, 486A, pt 2 div 1, pt 3 div 1
Local Government Act 1993 (Qld)
Independent Commission Against Corruption Act 1988 (NSW) s 111(4)
Supreme Court Act 1970 (NSW) ss 23, 63

Cases Cited:
Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29
Clouston & Co Ltd v Corry [1906] AC 122
Cockle v Isaksen (1957) 99 CLR 155; [1957] HCA 85
Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64
Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524; [2016] NSWCA 37
Feldman v Nationwide News Pty Ltd [2020] NSWCA 260
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992
Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121; [1932] HCA 10
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
North v Television Corp Ltd (1976) 11 ALR 599
Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21
Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701

Texts Cited:
B Creighton and A Stewart, Labour Law (5th ed, 2010, Federation Press)
I Neil and D Chin, The Modern Contract of Employment (2nd ed, 2017, Thomson Reuters)
M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)

Category: Principal judgment
Parties: Alan Eldridge (Plaintiff)
Wagga Wagga City Council (Defendant)
Representation:
Counsel:

J J Fernon SC with D J A Mackay (Plaintiff)
R M Goot AO SC with V Bulut (Defendant)

Solicitors:
Macpherson Kelley (Plaintiff)
RGSLAW (Defendant)

File Number(s): 2018/297060

Table of contents

Introduction

Summary of conclusions

Background facts

Mr Eldridge’s qualifications and professional experience
Critical events prior to Mr Eldridge taking up the position as Acting General Manager
Interim/Acting General Manager
Leave entitlements under the Standard Contract
Key Council staff during Mr Eldridge’s tenure as General Manager
26 October 2015 Disclosure of Pecuniary Interest Returns
Policy and Strategy Committee Meeting of 14 March 2016
Events following 14 March 2016 Policy and Strategy Committee Meeting
Mr Eldridge’s appointment as General Manager on a permanent basis
May 2016 Policy and Strategy Committee and Supplementary Council meeting
Key Management Personnel Declaration – 25 July 2016
30 September 2016 Disclosure of Pecuniary Interest Returns
Exchanges with Ms Caroline Angel regarding conflict of interest
Events leading to Mr Eldridge’s termination
The Council meeting of 29 May 2017

Applicable legal principles

A threshold jurisdictional question
Contractual construction

Mr Eldridge’s contentions

Findings as to the credit of Mr Eldridge

Findings as to the credit of other witnesses

Mayor Conkey
Deputy Mayor Tout
Councillor Kendall
Mr Flack
Ms Hensley
Ms Angel
Mr Gray
Mr Cresp and Mr Darby

Grounds relied upon by the Council

Failure to disclose or manage personal conflicts of interest in relation to the Inglewood Road Planning Proposal
Pecuniary interest disclosures
Engagement in outside employment without the knowledge or approval of the Council
Retainer of solicitors on a personal matter and without appropriate approval
Use of Council letterhead to issue press release regarding personal matters
Failure to act honestly and exercise a reasonable degree of care and diligence
Unauthorised personal expenditure

Conclusion

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff, Mr Alan Eldridge (Mr Eldridge), was appointed as the General Manager of the defendant, Wagga Wagga City Council (the Council) on 22 April 2016, having previously served as the General Manager of the Council on an interim basis from 7 October 2015. Prior to assuming the role of interim General Manager, Mr Eldridge had served as Chair of the Council’s Audit and Risk Committee from 2009 and was the founder and Managing Director of the Eldridge Group of Companies (the Eldridge Group), which holds a number of business interests in and around Wagga Wagga. One of the companies in the Eldridge Group was the business known as First National Real Estate Eldridge, which was owned by E Properties Wagga Pty Ltd (E Properties). E Properties 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 May 2005 and October 2013. The sole director of E Properties from 29 October 2013 was Mr Eldridge’s son Joshua.

The terms and conditions of Mr Eldridge’s employment as General Manager were governed by a “Standard Contract of Employment” dated 22 April 2016 (the Standard Contract). 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.

In an extraordinary meeting of the Council held on 29 May 2017, it was resolved unanimously that Mr Eldridge’s employment be terminated on a summary basis, that is, without notice and with immediate effect. The summary dismissal of Mr Eldridge as General Manager was effected pursuant to cl 10.4.1 of the Standard Contract, which provided for such dismissal on the basis of “serious or persistent breach of any of the terms of this contract”, amongst other bases.

Mr Eldridge brought proceedings against the Council for wrongful dismissal and sought damages in the sum of $1,159,425, reflecting the income he would have received for the balance of his four-year term.

In its letter of termination (the termination letter), the Council had identified the following six “serious breaches of the Standard Contract” as justifying Mr Eldridge’s summary dismissal:

Mr Eldridge failed to lodge a “Disclosure of Pecuniary Interest Return”, for the period ended 30 June 2016, by 30 September 2016;
Mr Eldridge approved a report for submission to the ordinary meeting of Council on 31 October 2016 by which he knowingly misled Council in stating that Declarations of Pecuniary Interest Returns had been received from all “designated persons” as required by the Local Government Act 1993 (NSW) (the Act);
Mr Eldridge lodged a “Disclosure of Pecuniary Interest Return” with the Council, for the period ended 30 June 2015, which failed to disclose interests in E Properties, Allante Pty Ltd (Allante) and Indigenous Products Australia Aboriginal Corporation (IPAAC), which was a disclosure that he knew or ought reasonably to have known was false or misleading;
Mr Eldridge lodged a Disclosure of Pecuniary Interest Return, for the period ended 30 June 2016, which failed to disclose interests as above in item 3 such that it was a disclosure that he knew or ought reasonable to have known was false or misleading;
in the period from November 2015 to 17 February 2017, Mr Eldridge failed to declare and manage conflicts of interest in relation to the “Inglewood Road Planning Proposal” (the Inglewood Road Planning Proposal) with respect to his son Joshua’s pecuniary interest in Inglewood Estate Wagga Pty Ltd (Inglewood Estate) and his own pecuniary interest in E Properties; and
in February 2017, Mr Eldridge retained a firm of solicitors to provide advice and to draft a press release in relation to the allegation that he had failed to disclose conflicts of interest, without the authority of the Mayor or, in the alternative, without having disclosed written details of the conflicts of interest to the Mayor.

The following allegations, though not included in the termination letter, were also relied upon by the Council in the proceedings as further justifying Mr Eldridge’s summary dismissal:

Mr Eldridge engaged in external employment without the knowledge or approval of the Council through his provision of project management services to Katungul Aboriginal Corporation Regional Health and Community Services (KAC) for the construction of a medical centre at Batemans Bay (the Katungul project);
Mr Eldridge used the Council letterhead to issue a press release about his personal affairs, namely, his alleged conflicts of interest in relation to the Inglewood Proposal;
Mr Eldridge failed to seek the appropriate approval from the Mayor in retaining the Council’s solicitors to take advice on a personal matter;
Mr Eldridge failed to comply with his duty to act honestly and to exercise a reasonable degree of care and diligence in carrying out his duties and functions, as required by cl 6.1.2(m) of the Standard Contract; and
Mr Eldridge incurred expenses paid for or reimbursed by the Council that were personal in nature.

The allegation concerning the Inglewood Road Planning Proposal assumed central significance in the course of the proceedings. This was a proposal which was before the Council for the rezoning and subdivision of land on the outskirts of Wagga Wagga. Mr Eldridge’s son, Joshua, had an interest in the Planning Proposal. Mr Eldridge claimed, in both 2017 and in the proceedings, that he was unaware of his son’s involvement with the proposal prior to 16 February 2017, when he was contacted by a member of the press in relation to his knowledge of it.

The trial of the proceedings took place over nine days in Wagga Wagga, during which 13 witnesses gave evidence, including Mr Eldridge, who was cross-examined at length.

The Court held, entering judgment for the Council:

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 the basis of a number of serious and persistent breaches of the Standard Contract: [18].
The Council was entitled to rely on grounds in addition to those on which it had relied at the time of Mr Eldridge’s dismissal to justify the dismissal: [8].

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21; Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64, applied.

In respect of the Inglewood Road Planning Proposal, Mr Eldridge failed to disclose a very significant conflict of interest of which he was fully aware throughout his tenure as Acting and permanent General Manager of the Council. This breach was compounded by Mr Eldridge’s false denial of any awareness of his son’s interest in the Inglewood Road Planning Proposal: [378].
Section 486A of the Local Government Act 1993 (NSW) did not mean that the Court lacked jurisdiction to entertain the Council’s defence that Mr Eldridge had failed to comply with his disclosure obligations under the Act: [281]–[282].
The failure by Mr Eldridge to complete and lodge a Disclosure of Pecuniary Interest Return for the period ended 30 June 2016, by 30 September 2016, also represented a serious breach of Mr Eldridge’s obligations under both the Standard Contract and the Act: [389].
Mr Eldridge had deliberately misled the Council in October 2016 by approving a report which stated that all Declarations of Pecuniary Interests had been lodged in circumstance where he knew that he was still to complete his own: [406].
It could not be accepted on the evidence that Mr Eldridge had forgotten or overlooked his ownership of the First National Real Estate Eldridge business through E Properties in 2015 and 2016. The potential conflict of interest between the General Manager of a Council and a local real estate agency is obvious, such that Mr Eldridge’s failure to disclose his pecuniary interest in E Properties in 2015 and 2016 constituted a serious breach of the Standard Contract: [395].
Mr Eldridge also committed a serious breach of the Standard Contract by engaging in unauthorised work for remuneration in relation to the Katungul project. This breach was sufficient to justify Mr Eldridge’s summary dismissal: [409]–[410].

Judgment

BELL P:

Introduction

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

The Council as at early 2017 served more than 63,000 residents across an area of 4825 square kilometres and had an annual budget of $110 million. The Council employed more than 600 staff.
The members of the Council as at the date of Mr Eldridge’s termination were: Mayor Greg Conkey OAM (Mayor Conkey); Deputy Mayor Dallas Tout; Ms Yvonne Braid; Mr Paul Funnell; Mr Daniel Hayes; Ms Vanessa Keenan; Mr Rodney Kendall; Mr Timothy Koschel; and Mr Kerry Pascoe. All except Ms Braid, Mr Pascoe and Mr Funnell gave evidence in the course of the hearing in support of the Council. A number of current and former Council Officers also gave evidence including Mr Scott Gray, Ms Ingrid Hensley, Ms Caroline Angel and Mr Laurence Flack.
A small number of witnesses not relevantly associated with the Council were also called. Their evidence related principally to Mr Eldridge’s involvement with a project undertaken by Katungul Aboriginal Corporation Regional Health and Community Services (KAC) for the construction of a medical centre in Batemans Bay (the Katungul project). This involvement pre-dated his appointment but continued whilst he was still employed as General Manager of the Council.
Mr Eldridge had acted as interim General Manager of the Council from 7 October 2015 until he was formally appointed as General Manager on 22 April 2016. The terms of Mr Eldridge’s employment as General Manager were governed by a “Standard Contract of Employment” dated 22 April 2016 (the Standard Contract), cl 8 and schedule C of which provided for a total annual remuneration of $395,808.00. By cl 2 of the Standard Contract, the Council was to employ Mr Eldridge for a term of four years, terminating on 21 April 2020.
Clause 10.4.1 of the Standard Contract, pursuant to which Mr Eldridge was terminated, provided that:

“Council may terminate this contract at any time and without notice if the employee commits any act that would entitle an employer to summarily dismiss the employee. Such acts include but are not limited to:
(a)   serious or persistent breach of any of the terms of this contract,
(b)   serious and wilful disobedience of any reasonable and lawful instruction or direction given by Council,
(c)   serious and wilful misconduct, dishonesty, insubordination or neglect in the discharge of the employee’s duties and functions under this contract,
(d)   failure to comply with any law or Council policy concerning sexual harassment or racial or religious vilification,
(e)   commission of a crime, resulting in conviction and sentencing (whether or not by way of periodic detention), which affects the employee’s ability to perform the employee’s duties and functions satisfactorily, or in the opinion of Council brings Council into disrepute,
(f)   absence from the business of Council without Council approval for a period of 3 or more consecutive business days.”

In its letter of termination (the termination letter), the Council identified the following six “serious breaches of the Standard Contract” as justifying Mr Eldridge’s summary dismissal:

Mr Eldridge failed to lodge a “Disclosure of Pecuniary Interest Return 2016” by 30 September 2016, for the period ended 30 June 2016 (in breach of cl 6.1.2(o) of the Standard Contract, cl 6.1.4 of the Standard Contract’s “Conflict of Interests Policy” (the Policy) and s 449 of the Local Government Act1993 (NSW) (the Act));
On 25 October 2016, Mr Eldridge approved a report for submission to the ordinary meeting of Council scheduled for 31 October 2016, and thereby knowingly misled the Council because the report falsely stated that Declarations of Pecuniary Interest Returns had been received from all “designated persons” as required under part 2, div 1 of the Local Government Act (in breach of cl 6.1.2(m) of the Standard Contract and cl 6.1.2(n) of the Standard Contract’s “Code of Conduct” (the Code));
On 26 October 2015, Mr Eldridge lodged a “Disclosure of Pecuniary Interest Return 2015” with the Council, which failed to disclose interests in E Properties Wagga Pty Ltd (E Properties), Allante Pty Ltd (Allante) and Indigenous Products Australia Aboriginal Corporation (IPAAC), which was a disclosure that he knew or ought reasonably to have known was false or misleading in a material particular (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 449(1)(A) of the Local Government Act);
On 4 January 2017, Mr Eldridge lodged a “Disclosure of Pecuniary Interest Return 2016” with the Council, and failed to disclose interests in E Properties, Allante and IPAAC, which was a disclosure that he knew or ought reasonably to have known was false or misleading in a material particular (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 449(1)(A) of the Local Government Act);
In the period from November 2015 to 17 February 2017, Mr Eldridge failed to declare and manage conflicts of interest in relation to the “Inglewood Road Planning Proposal” with respect to his son’s [Joshua’s] pecuniary interest in Inglewood Estate Wagga Pty Ltd (Inglewood Estate) and his own pecuniary interest in E Properties (in breach of cls 6.1.2(m) and (o) of the Standard Contract, cl 6.1.2(n) of the Code, cl 6.1.4 of the Policy, and ss 445 and 459 of the Local Government Act); and
In February 2017, Mr Eldridge retained a firm of solicitors to provide advice and to draft a press release in relation to the allegation that he had failed to disclose conflicts of interest, without the authority of Mayor Conkey, or, in the alternative, without having disclosed written details of the conflicts of interest to the Mayor (in breach of cl 6.1.2(m) of the Standard Contract, cl 6.1.2(n) of the Code, and cl 6.1.4 of the Policy).
1. 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].
2. 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:

Mr Eldridge engaged in external employment without the Council’s knowledge or approval (in breach of cl 6.1.2(k) of the Standard Contract and Code). This related to the Katungul project referred to at [4] above;
Mr Eldridge used the Council letterhead to issue a press release about his personal affairs (in breach of cls 6.1.8 and 6.1.11 of the Standard Contract and Code);
Mr Eldridge failed to comply with his duty to act honestly and exercise a reasonable degree of care and diligence in carrying out his duties and functions (in breach of cl 6.1.2(m) of the Standard Contract); and
Mr Eldridge incurred expenses paid for or reimbursed by the Council that were personal in nature.
1. In final address, the complaint in relation to personal expenses was confined to dinner expenses incurred on one particular occasion in October 2016.
2. The Council summarised Mr Eldridge’s alleged breaches which it says justified his summary dismissal in its Further Amended Defence as follows:
“a.  the Plaintiff failed to disclose pecuniary interests during his employment with the Defendant;
b.   the Plaintiff failed to comply with pecuniary interest obligations during his employment with the Defendant, including by:
i.   failing to complete his pecuniary interest disclosures during his employment with the Defendant; and
ii.   failing to report to the Defendant that he had not disclosed his pecuniary interests during his employment with the Defendant.
c.   the Plaintiff engaged in outside employment without the knowledge or approval of Council;
d.   the Plaintiff failed to seek appropriate approval and retained solicitors to take advice on a personal matter;
e.   the Plaintiff used Council letterhead to issue a press release about his personal matters;
f.   the Plaintiff did not disclose or manage conflicts of interest he held during his employment with the Defendant;
g.   the Plaintiff failed to comply with his duty to act honestly and exercise a reasonable degree of care and diligence; and
h.   the Plaintiff incurred expenses paid for by Council or reimbursed that were personal in nature.”
1. 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.
2. A number of the breaches summarised in [11] above overlapped in terms of their subject matter.
3. 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.
4. 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.
5. 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.
6. 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

For the reasons that follow and as elaborated more fully in the body of this judgment, the Council was both fully entitled to and justified in summarily dismissing Mr Eldridge as General Manager of the Council on 29 May 2017 on a number of bases.
In particular, contrary to his claims, I have found that Mr Eldridge well knew of his son’s involvement with the Inglewood Road Planning Proposal long before he first claimed to have become aware of it in mid-February 2017 and had in fact underwritten his son’s financial involvement in a joint venture with a landowner, Mr Graeme Brunskill (Mr Brunskill), to secure Council’s approval for its rezoning, subdivision and development. Not only did Mr Eldridge not declare this interest at any time prior to 17 February 2017 notwithstanding that the Proposal came before both the Council, its Strategy and Policy Committee and its staff including Mr Eldridge on a number of occasions in 2016 whilst Mr Eldridge was Acting and then permanent General Manager of the Council, but when the issue of a conflict was raised with him on or about 16 February 2017, he falsely claimed to have been hitherto unaware of his son’s involvement.
This false claim was reflected in instructions he gave to Lindsay Taylor Lawyers (LTL), a firm of solicitors on the Council’s Panel of solicitors, in February 2017 as well as to his own solicitors, Hennessy Dowd, in April/May 2017; in oral and written reports to Mayor Conkey in February 2017; in a press release issued by Mr Eldridge on Council letterhead on 22 February 2017; and in representations made to Council on his behalf by Hennessy Dowd on 19 May 2017 prior to his dismissal.
In his oral and written evidence in this Court, Mr Eldridge endeavoured to walk a fine line, claiming that, while he was aware from 2015 that his son was involved with Inglewood Wagga Pty Ltd (contrary to what his lawyers, presumably on his instructions, had represented to Council on 19 May 2017 – see [257] below), he “was not aware that he [Joshua] was involved in any application that was or had been before Council” (CB 1/110–111 at [57]). This claim cannot be accepted; it is contradicted by a wealth of evidence that was before the Court and which is identified later in these reasons.
That evidence only came to light in May 2019 after these proceedings had been commenced when the Independent Commission Against Corruption (ICAC) released to the Council documents it had seized in a raid on Mr Eldridge’s business premises after his dismissal from Council. In a further twist, on the penultimate day of the hearing in this Court, it emerged that records of three meetings in the course of 2015 that disclosed not only Mr Eldridge’s knowledge of his son’s involvement in the Inglewood Road Planning Proposal but Mr Eldridge’s own involvement with it had been modified on 22 February 2017 in a computer server to which Mr Eldridge had access. This was the very day Mr Eldridge was stood down from Council. It was Mr Eldridge who drew attention to this modified evidence (but not the fact of its modification) on the fourth last day of the trial in an attempt to raise doubt about the authenticity of the documents which evidenced his knowledge of the Inglewood Road Planning Proposal prior to February 2017, and about which he had been cross-examined at length on the previous day of the trial.
It was a serious breach of Mr Eldridge’s employment contract and statutory obligations not to disclose his interest, through his son, in the Inglewood Road Planning Proposal during his term as Acting General Manager and General Manager of the Council. It was an even more serious breach to deny both publicly and to the Mayor and Council any knowledge of that interest prior to 16 February 2017 when questions were raised about it in an email to the Council and Mr Eldridge from a journalist at The Daily Advertiser: see [215] below. I have found that Mr Eldridge’s denials of any knowledge prior to that date were simply not credible and that the non-disclosure of his son’s and therefore his own interest in the Inglewood Road Planning Proposal was deliberate.
The statutory provisions of the Act, the Standard Contract of Employment for General Managers of Councils in New South Wales, the Code and the Policy all place important emphasis on good corporate governance and proper and formal disclosure of pecuniary and non-pecuniary interests. They also require Councillors and senior Council Officers periodically to file declarations as to any interest that they or a close family member has in any companies. Such formal declarations are maintained in a register of the Council available for public inspection and scrutiny.
In accepting his appointment to the Council, Mr Eldridge presented himself as one committed to, expert in and cognisant of his responsibilities and indeed obligations to adhere to the regime of corporate governance to which Councillors and Council officers are subject. His failure to adhere to those obligations was serious and not trivial. His false claims to have been unaware of his son’s interest (and therefore his own interest) in the Inglewood Road Planning Proposal cannot, regrettably, be characterised as other than dishonest.
In addition to the non-disclosure of his interest in the Inglewood Road Planning Proposal and the attempted deliberate concealment of that knowledge, Council relied upon a number of other matters in support of its decision summarily to terminate Mr Eldridge’s employment. These included:

(a) authorisation of a report containing a false representation to the Council in late October 2016 that all Designated Persons (which included Mr Eldridge) had completed their Declaration of Pecuniary Interest and that the relevant statutory obligations had been complied with, when this was not the case as Mr Eldridge knew that he himself had not completed his own declaration; and

(b) a persistent failure to file his own Declaration of Pecuniary Interest for 2016 over a lengthy period and then, when his Declaration of Pecuniary Interest was belatedly filed in early January 2017, his failure to declare all his interests, including his 100% interest in the business trading as First National Real Estate Eldridge. First National Real Estate was a franchise real estate business which operated throughout Australia and First National Real Estate Eldridge operated in Wagga Wagga and had done so for many years. The business First National Real Estate Eldridge was owned by E Properties which was wholly owned by Mr Eldridge at all material times.

Mr Eldridge presented these matters in his evidence as ones of “oversight” or inadvertence on his part or of confusion as to what was required to be submitted. I also do not accept those explanations, both by reason of my adverse findings as to his credit and his honesty more generally (see [309]–[333] below), and also because of Mr Eldridge’s extensive business experience and claimed commitment to the principles of good corporate governance, a commitment he emphasised when making his application for the permanent position of General Manager of the Council. For a well-qualified, apparently vastly experienced businessman who purported to be across corporate governance obligations, it is not possible to accept Mr Eldridge’s evidence that his failure ever to disclose his 100% ownership interest, especially in E-Properties which was the owner of the First National Real Estate Eldridge business in Wagga Wagga and with which he had had a long association, was an oversight on his part. His claim that he only obtained that shareholding because of a loan to his son was also not sustained.
Mr Eldridge displayed a brazen indifference to his obligations fully and properly to disclose his and his family’s interests, and misled the Council in October 2016 in confirming that all declarations of pecuniary interests by Designated Persons had been completed, when he knew full well that he himself had not completed such a disclosure.
A further justification relied upon by Council for Mr Eldridge’s summary dismissal related to his continuing involvement, after his appointment as Acting General Manager and then General Manager, in work for the construction of a medical centre at Batemans Bay, what I have earlier described as the Katungul project. This continuing involvement was not known to the Council in May 2017 when Mr Eldridge was dismissed. As will be seen, Mr Eldridge had deliberately concealed it from the Council. That deliberate concealment bespoke a consciousness on his part that his unauthorised visits to Batemans Bay in relation to this project when he was meant to be working for the Council in his role as General Manager were in breach of contract. That breach of contract was a serious one.
Mr Eldridge also sought to represent that his involvement in the Katungul project was “benevolent” or charitable, claiming that he provided assistance to KAC pro bono. I do not accept this. There was clear evidence to the contrary which demonstrated that Mr Eldridge in fact received remuneration for rendering project management services to KAC through the company, Australian Indigenous Business Services Pty Ltd (AIBS), of which Mr Eldridge was the sole director and shareholder. Mr Eldridge’s claims to the contrary also told strongly against his general creditworthiness.
Whilst I have found that the retention of LTL in mid-February 2017, the use of Council letterhead to issue a press release relating on one view to his own position, and one claimed expense which was in truth personal in nature rather than for Council purposes would not, in and of themselves, have warranted Mr Eldridge’s dismissal, I consider that the allegations in relation to non-disclosure of the conflict with regard to the Inglewood Road Planning Proposal, the non-disclosure of his interest in E-Properties, the late filing of his Declaration of Pecuniary Interest in 2016 and the misleading of Council in that respect, and his unauthorised work on the Katungul project were each of such seriousness to have individually justified summary dismissal. When they are considered together or in combination, the case for Mr Eldridge’s dismissal was an extremely strong one.
True it is that the Council was not aware of all of these matters at the time of Mr Eldridge’s dismissal but, as I have explained, it is a well established principle of contract law that the termination of a contract may be justified on grounds additional to those known at the time of the dismissal or, as in the present case, by reference to facts that have become known in the interim.

Background facts

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.

Mr Eldridge’s qualifications and professional experience

Mr Eldridge has the following formal qualifications:

(a) Membership of Certified Practicing Accountants Australia (CPA);

(b) Master of Accountancy and Corporations Law (Charles Sturt University);

(d) Bachelor of Applied Science (Health and Information Management) (University of Sydney).

Mr Eldridge was the founder and Managing Director of the Eldridge Group of Companies (Eldridge Group), which holds a number of business interests in and around Wagga Wagga and the broader Riverina region. In his curriculum vitae, Mr Eldridge described the Eldridge Group as [CB 11362]:

“consist[ing] of 9 companies that operate individually and provide services to a broad range of clients. Some of the services that we provide include but are not limited to:
●   Accounting & Audit Services
●   Real Estate Sales & Property Management
●   Insurance Broking
●   Financial Planning
●   Business Re-engineering Consulting
●   General Business Consulting
●   Indigenous Consulting.”

In his prior role as Managing Director of the Eldridge Group, Mr Eldridge described his duties broadly as those of “executive management”, which comprised the following discrete functions: [CB 11362]

“●   Director of Audit, Risk and Finances
●   Responsible for the overall operations of the company
●   Oversee and deliver the company’s performance
●   Formulate policies and planning recommendations to the Board
●   Manage Human Resources
●   Creating, communicating, and implementing the organization’s vision, mission and overall direction
●   Liaise with client representatives and external consultants onsite
●   Maintain awareness of both the external and internal competitive landscape, identify opportunities for expansion, customers, markets, new industry developments and standards, and so forth.”

One of the businesses in the Eldridge Group was the business known as First National Real Estate Eldridge. As already noted, that business was owned by E Properties. That company was wholly owned by Mr Eldridge at all material times including his time as both Acting and permanent General Manager of the Council. Mr Eldridge had been a director of E Properties between 2005 and 2013. He had acquired his 100% shareholding in E Properties on 13 May 2005 [CB 5/4206]. The sole director of E Properties from 29 October 2013 was Mr Eldridge’s son Joshua.
In addition to his duties as Managing Director of the Eldridge Group and according to his curriculum vitae, Mr Eldridge was also personally contracted to provide consulting services to “a broad range of Government Departments and Local Government Councils”. Under one such contract, from 2003–2005, Mr Eldridge was engaged as an Administrator by the Director-General of the Queensland Office of Local Government to assist in the transition of six Local Government Areas from underlying funding structures to become incorporated under the Local Government Act 1993 (Qld). This transition was said to have involved the management of operating and capital funds of $400 million and $280 million respectively, culminating in the provision of advice by Mr Eldridge on “strategic planning to equip Councils to adapt to forced amalgamation and integration scenario’s [sic] throughout Queensland”.
Following this engagement and again according to his curriculum vitae, Mr Eldridge was contracted directly by a number of specific Local Government Councils to “provide strategic advice with regards to the performance of their staff and their services”, including the implementation of self-developed Remediation Action Plans.

Over the nine-year period from 2003–2012, Mr Eldridge was apparently also engaged personally as a Special Administrator to the Commonwealth Government to examine a corporation that had active projects with the government worth over $250 million, some of which had fallen into default. According to Mr Eldridge’s curriculum vitae, this engagement resulted in the corporation “undertaking significant organisational change”. This followed engagements as a Strategic Advisor to “various government agencies” over the seven-year period from 1996–2003.
According to Mr Eldridge’s curriculum vitae, his professional experience was not limited to the Eldridge Group and his personal advisory engagements by public sector entities. From 2009–2016, Mr Eldridge was the Managing Director of, and a shareholder in, Post Hunt Pty Ltd “Yamba” Farms & Livestock Holdings, in which capacity he “[r]eport[ed] to the Board and [was] accountable for maintaining a profitable business through the planning, budgeting and overseeing of farming operations, wool, lamb and cattle management and broad acre cropping”.
As Advisor & Analyst to the Chairperson of Eastern Corporation Ltd — Becamal Pty Ltd (ASX: ECU) (ECU), a publicly-listed company, Mr Eldridge “[w]orked with the Chairperson, Investors and Directors on financing options for the planned expansion of coal production which included establishing overseas mine operations and [a] coal distribution centre”. ECU was active in coal seam extraction in Queensland and New Zealand but does not appear to have operated in the Riverina region.
Mr Eldridge’s curriculum vitae also recorded him as having had prior experience in the mining and resources industry as the Senior Manager of Strategy and Stakeholder Engagement — Lawn Hill New Century Mine at Century Mining Alliance Zinifex, a position he held from 2005—2006. The relevant curriculum vitae entry describes this role as “[r]eporting to the CEO and working with the senior management team to develop strategy, stakeholder engagement plans and the framework for the rejuvenation plans for exiting the main open pit and the area”. Drawing upon his experience with the Eldridge Group in providing “Indigenous Consulting”, Mr Eldridge “work[ed] with Aboriginal communities” to determine parameters of ore-for-royalty payments and “to drive social and economic development for indigenous people” living in the vicinity of the mine.
Prior to his appointment as Acting General Manager of the Council on 9 October 2015, Mr Eldridge had been involved with the Council as the Chair of its Audit and Risk Committee since the 2009 financial year. He was one of three members of the Committee required to be “external and independent of Council”, with two members of Council constituting the balance of the Committee. The role of Chair of the Audit and Risk Committee comprised the provision of “independent assurance and assistance to Council on risk management, internal control, governance and external accountability responsibilities”.
During the course of the proceedings, the Court’s attention was drawn to the “Disclosure of Pecuniary Interest Return” completed by Mr Eldridge on 30 September 2014 when he was Chair of the Audit and Risk Committee [CB 2/954A]. That disclosure made no reference to his 100% ownership of E Properties, a conspicuous and unexplained omission.

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

On 2 September 2014, Mr Eldridge, Mr Joshua Eldridge and Mr Brunskill, an owner of land adjacent to or in the immediate vicinity of Inglewood Road, Gumly Gumly, had a meeting, a contemporaneous file note of which, prepared on the First National Real Estate Eldridge letterhead, was entitled “Eldridge & Brunskill Joint Venture Initial Meeting 2^nd September 2014”.
The file note recorded that [CB 2/954]:

“Eldridge and Graham [sic] [Brunskill] met 2^nd September 2014. Graham [sic] and Eldridge decided to enter in a Joint Venture in order to develop Grahams [sic] land located at Inglewood Road, Wagga Wagga.
Present: Alan Eldridge, Josh Eldridge & Graham [sic] Brunskill.
Steps forward
●   Compile a file with all documents
●   Arrange an agenda for JV to meet every four weeks for the next 12 months
●   Eldridge to approach council and hold baseline discussions for intended development concept
●   Investigate external concept designer to work on plans and layout of intended sub division
●   Heads of agreement to be developed between JV, Eldridge and Brunskill
●   Develop the legal structure for the JV
–   Set up a company
–   Decide on a company and project name

● An agreement of land price in today’s market needs to be made
● Indicative value of land”.

Parenthetically, it should be noted that the First National Real Estate Eldridge letterhead on which the note of the meeting was recorded carried on the left hand side of the footer of the page the following information:

“E Properties Wagga Pty Ltd
Trading as First National Real Estate Eldridge
ABN 84 062 105 677
ACN 062 105 677”

with the words “Part of the Eldridge group of companies” appearing in the footer at the right hand side of the page (emboldening in original).

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

“Q: Why were you there?
A:   For the money.
Q:   I beg your pardon?
A:   To give Josh the money. He wanted money to do this.
Q:   So you were intimately – and did you give it to him?
A:   We loaned him money.
Q:   So that you had a real interest in this joint venture proposal; did you not? You got skin in the game.
A:   Well it’s loaning my children money is never really much of an expected return, but that was why I was there.”

As at 2 September 2014, Mr Joshua Eldridge was aged 27 years.
On Australia Day 2015, Mr Eldridge and his son Joshua were invited to and did attend a corporate box at the Sydney Cricket Ground to watch a One Day International cricket match. Also invited to attend on that occasion was Mr Tristan Kell (Mr Kell), an employee of AE Design Partnership, a firm of architects, designers and urban planners based in Sydney.
On 27 January 2015, Mr Kell sent an email to Mr Eldridge under the heading “Wagga Subdivision” as follows [CB 2/956]:

“Hi Alan,
Was good fun catching up with Josh and yourself again last night. We would be happy to have a look at your site in Wagga.
Could you please provide me with the address? We can prepare a proposal for you to look at.
Look forward to catching up again.”

The following afternoon, on 28 January 2015, Mr Kell sent an email to Mr Joshua Eldridge, copying in Mr Eldridge, under the heading “Business Development in Wagga” in which he wrote the following [CB 2/968]:

“Great to catch up on Monday [26 January 2015]. Thought I would follow up on the Wagga site, in which you are interested in doing a rural residential subdivision.
ae design partnership could work closely with your group in relation to many property development opportunities within the Riverina and Sydney.
If you could send me an address I will provide a proposal for you to consider.
Please do not hesitate to contact me if you have any questions.”

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

“Great to meet you also, we had a good time.
I will get some information together for you and send through tomorrow. Had a few things to catch up on today but we would certainly appreciate your insight into the potential of the project and any other that may arise.”

(Although this email was not copied to Mr Eldridge, it did form part of a string of emails in which he was later copied).

On 30 January 2015, Mr Joshua Eldridge emailed Mr Eldridge under the heading “Inglewood Rd Land”. The email stated “[l]ooking at utilizing [sic] the land as much as possible. May need a mix of lot sizes from 1, 2 & 5 acre lots” [CB 2/960].
Approximately 30 minutes later, Mr Eldridge sent an email to Mr Kell, also headed “Inglewood Rd Land”, and copying in Mr Joshua Eldridge. This email forwarded the email at [54] above and stated that [CB 2/959–960]:

“I am sorry that I have not contacted you before this, its [sic] been a bit hectic here, after the short break.
Firstly I would like to say that it was great to catch up last week at the cricket and we really did enjoy meeting with you again.
Attached for your perusal is the development that we are about to consider and commence. As you can see the current owner has had very preliminary discussions with the local town planner but is now looking at progressing the project further with assistance and involvement from us.
At this stage I would appreciate it if you could consider the attached and then perhaps we can arrange for a time to talk about the possibilities and the pros and cons through the planning process.” (emphasis added).

The attachment referred to by Mr Eldridge in this email was not in evidence but it may comfortably be inferred from its subject heading that it was referring to the “Inglewood Rd Land”. [CB 2/959–960].

On 13 February 2015, Mr Kell sent the following email to Mr Eldridge and his son, with a Mr Rohan Dickson (Mr Dickson) (a Director of AE Design Partnership) copied in [CB 2/959]:

“Hi Alan and Josh,
As per the correspondence you have provided and a review of the Wagga Spatial Plan 2013-2042: there is merit in pursuing a large lot rural residential subdivision. Council are undertaking further studies, which will include housing and economic studies, which will take some time. A conservative estimate if you were to wait for the Council planning process it might not be until five years before there is a rezoning.
A pro-active approach would be to consider a spot re-zoning or planning proposal this process may take 12-18 months: (Council Officer recommends 12 Months)
●   This would incorporate lodging a concept plan, supported by a short report that supports the concept that would be lodged to an internal group within Council. The internal group incorporates members from Council’s Infrastructure, Economic Development, Planning and Environment and Community units.
●   Questions or feedback that may arise would be provided to us and we would have an opportunity to respond through a presentation.
●   Council would then issue an issues paper for the proponent to consider prior to lodging a planning proposal, which is the formal process to allow a re-zoning of the site.

Timing
We had preliminary discussions with Crystal Goldman [sic: Golden] A/Manager Strategic Planning of the Wagga Wagga City Council and offer the following time frames:
●   Council accept planning proposals on 31 January and 31 July.
●   To meet July 31 deadline we would need to lodge a concept to Council in March, 2015.
●   Scheme to presented to internal group mid-April.
●   Lodge re-zoning application to Council, 31 July.

Attached is a fee proposal for your consideration.” (emboldening in original)

Although the header of Mr Kell’s email of 13 February 2015 did not appear to contain any attachments, the “fee proposal” referred to in the email was in evidence [CB 2/962–966]. The fee proposal was addressed to Mr Eldridge and its introduction read as follows [CB 2/962]:

“Dear Alan,
We are delighted to be invited to submit a fee for the provision of town planning and urban design services Wagga NSW.
–   We understand that you are in the process of undertaking due diligence and testing the feasibility of the site.
–   The site has been identified as an opportunity site within Wagga Spatial Plan 2013-2043
–   The southern part of the site is seen as a long term opportunity site (illustrated in figure 2).
–   The large site area will provide an opportunity to improve access links to Airport and Wagga, which have been identified within the Spatial Plan.

Council have recommended that we lodge a concept plan to Council in March in order to meet Council’s timeframes for lodging a planning proposal July 31. There are two processes that can facilitate the change of zoning to facilitate the rezoning of the site.
● Undertake a spot rezoning, which would require a formal rezoning application to Council. We have attached a diagram that explains this process.
● Council are in process of studies to inform their strategy for the release of land within the LGA. The proponent can wait for Council to amend the LEP and prepare submissions and be a part of this process.” (emphasis added).

On 9 March 2015, Mr Kell sent an email under the heading “Inglewood Rd, Wagga” to Mr Joshua Eldridge, copying in Mr Eldridge and Mr Dickson. This email read [CB 2/967]:

“As per our discussion last week;
●   The first stage of the proposal will provide a high level concept for the site and some yield estimates.
●   We will also identify what additional technical information and studies are required to provide to Council prior to lodging the planning proposal (re-zoning application).
●   The second stage will incorporate a report identifying opportunities and analysis of the site.
●   Further technical information would be incorporated within the layouts within the second stage, providing a more detailed layout for the site.

Timing is a key issue as Council will only accept a re-zoning application on 31 July, 2015. Prior to lodging, we would like to have some support from Council Officers through their ‘pre-lodgement’ process and workshop process. Therefore it is important to get moving on this proposal as soon as possible.” (emphasis added).

A document entitled “Inglewood Estate: Minutes” evidenced a meeting held at 1pm on 11 March 2015 attended by Mr Brunskill, Mr Joshua Eldridge and Ms Vicki White (Ms White), an office manager of First National Real Estate Eldridge [CB 2/973] although, as will be seen below, the meeting may in fact have been held on 10 March 2015 but the minutes prepared on 11 March 2015. These minutes were as follows:

“General:
●   Reasonable amount Graeme had mentioned for the land was $4,000 per Acre
●   Money over per Acre would be a 50/50 Split Partnership
●   Timeframe
○   3 Years, then plan for a Sale – Extra 2 years if market is down

●   Open communication (cc in correspondence)
Money Input:
●   $10,000 each for Setup Costs
●   $50,000 each for Capital Input
Required:
●   Partnership Agreement
○   Standard Agreement
○   Allocation Split – Profit 50/50
○   Exit Strategy (Clause)
○   Land is Graeme’s – Company has No Interest

●   Company Purchase
●   Financial Preparation Costs
●   Monthly Meeting
●   Bank Account – Westpac Bank (Two Signatures)
Land Price/Sale:
●   Current Land Value - $4000 per acre (Base Rate)
●   Quick Calculation - $7000 per Acres
Sale - $7000 per Acres x 400     =   2.8 Million
Cost - $4000 per Acres x 400   =   1.6 Million
Total  =   1.2 Million
$1.2 Million – 50/50 Split share each   =   $600,000

●   Quick Calculation - $5000 per Acres
Sale - $5000 per Acres x 400     =   2.0 Million
Cost - $4000 per Acres x 400     =   1.6 Million
Total  =   $400,000
$1.2 Million – 50/50 Split share each   =   $200,000”.
(emphasis in original)

On 11 March 2015, Ms White sent an email to Mr Eldridge and Mr Joshua Eldridge attaching the minutes of a meeting concerning the Inglewood Road development [CB 2/972]. Ms White wrote:

“Hi Josh & Alan
Quick notes from yesterday.
I will order the Company and organise a Bank Account to be opened.
Thinking an Agreement needs to be done as soon as possible.”

The reference to the “notes from yesterday” suggest that the minutes dated 11 March 2015 and referred to in [59] above were minutes of a meeting held on 10 March 2015. Nothing of significance turns on this.
Later during the afternoon of 11 March 2015, Ms White sent the following email to Mr Brunskill, with Mr Joshua Eldridge copied in [CB 2/970]:

“Hi Graeme
Please find attached the Incorporation Certificate for the New Company.
We had to add Wagga to the name so could be accepted.
Should you have any questions please do not hesitate in contacting me.”

Inglewood Estate Wagga Pty Ltd was incorporated on 11 March 2015, with Mr Joshua Eldridge and Mr Brunskill each holding 50% of the shares in it.
Mr Brunskill replied to Ms White’s email a short time later, as follows [CB 2/970]:

“Hello Vicki,
I have received your e-mail re: Incorporation Certificate.
The addition of Wagga is probably a good idea as there are Inglewoods in other parts of Australia.
I would like a summary of minutes of our meeting on Tuesday 10th March 2015, when you have time.
Could you ask Joshua when he expects Alan to have a draft agreement available for me to sight.” (emphasis added).

The reference to Tuesday 10^th March 2015 provides further support for the view that the minutes bearing the date 11 March 2015 in fact related to a meeting the previous day although, as noted above, nothing of significance turns on this.

On 12 March 2015, Mr Eldridge was forwarded a copy of the email correspondence referred to above together with the following message from Ms White: [CB 2/970]:

“FYI – This is from Graeme.
When do you think we can have a draft Agreement Ready?
I will then respond to Graeme.”

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

“hi I think we need to have a bit of a discussion about this and how we see it going so I can draft an agreement .. need to be carful [sic] how we present the numbers.” (emphasis added).

Pausing here, Mr Eldridge was asked in cross-examination whether he had “anything to do with a joint venture agreement” to which he responded “I probably had a discussion ‑ I probably had a discussion around a joint venture agreement”: [T. 406]. Later, when asked about this email, he said “I had discussions with them about different options of going forward” ([T. 407]) and “I was helping with the terms of the agreement and I may have ‑ I might have even put a rough concept draft together but it wouldn't have been the agreement” [T. 408].

On 25 March 2015, Mr Joshua Eldridge forwarded to his father and Ms Audrey Brunskill (a co-proprietor of the relevant land at Inglewood Road, Gumly Gumly), with Ms White copied in, an email from Mr Kell [CB 2/976] with attachments. Mr Kell’s email read as follows:

“Hi Josh,
●   Attached are the diagrams associated with task 1and [sic] some commentary associated with the planning proposal, context and issues.
●   We need to submit something to Council by March 31, to meet their July 31 deadline to lodge the Planning Proposal.
●   We are able to assist with briefing technical consultants to assist with stage 2 and preparing documentation with the planning proposal now.
Some of the attached documentation will be incorporated within the Stage 2 documentation that we provide to Council.” (emphasis added).

The report attached to Mr Kell’s email was titled “Stage 1: Inception and Testing” [CB 2/978–984] and commenced by stating that “[t]he proposed development would require a planning proposal that responds to the Wagga Wagga Spatial Plan (2013), which identified a portion of the site as ‘Potential Urban Land’, having potential to be rezoned from a rural zoning to a residential zone’” [CB 2/978]. Annexed to the report was a series of six “concept plans”, including an “indicative lot layout” of the proposed subdivision of the land [CB 2/984].
In his email to his father and Mr Brunskill, Mr Joshua Eldridge wrote [CB 2/976]:

“Hi Alan and Graeme
Please find attached documents from Tristan.
Can we please meet Thursday morning at 9am [at] Edward St office to discuss in more detail.”

“Edward St office” was a reference to the office of First National Real Estate Eldridge in Wagga Wagga.

On 8 April 2015, Mr Joshua Eldridge sent his father an email attaching a report sent to the Council which related to what became the Inglewood Road Planning Proposal. The email read [CB 2/985]:

“The attached report was sent through to council last night. This will allow council to comment and give us some direction for their requirements in order for the changes to be made.
Please let me know if you have any comments or would like any clarification around any parts of the report.”

Attached to this email was an AE Design Partnership report in relation to Inglewood Road, Gumly Gumly, entitled “Confidential Information for Council” [CB 2/986–995].
In evidence were purported minutes of a meeting held on 29 April 2015 between Mr Eldridge, Mr Joshua Eldridge, Mr Brunskill and Ms White concerning the “Inglewood Estate” [CB 2/996]. Minutes of this and other meetings relating to Inglewood Road (including those set out at [59] above) came to the Council’s attention when it gained access on 1 May 2019 to documents that had been seized by the ICAC following what Mr Eldridge described in his oral evidence as a “raid on [his] family’s businesses: see [T. 371].
It is necessary at this point to interrupt the chronological narrative to explain in a little more detail the circumstances surrounding not only the production of these minutes but also the emergence of different versions of these minutes over the course of Mr Eldridge’s testimony.
ICAC had conducted an investigation into various allegations against Mr Eldridge. On 29 April 2019, Commissioner Rushton SC made a direction pursuant to s 111(4) of the Independent Commission Against Corruption Act 1988 (NSW) making certain material listed in an Annexure to the Direction available for use in these proceedings. The material was made available to Mr Eldridge’s legal representatives on 6 May 2019. (ICAC closed its investigation into Mr Eldridge on 11 September 2019: see [271] below).
Mr Eldridge was cross-examined about the minutes of the 29 April 2015 meeting and subsequent sets of minutes on the first day of his cross-examination, Monday 8 March 2021. On the following morning, Mr Eldridge volunteered that he had some suspicions about the minutes relating to Inglewood Road Estate about which he had been cross-examined the previous day. When pressed for the reason for this suspicion, Mr Eldridge indicated that, on the previous evening, he had searched an electronic archive file of the Eldridge Group at his home (the Eldridge Archive) and suggested that some of the documents about which he had been cross-examined were different to those which he had seen on the Eldridge Archive.
Mr Goot SC, who appeared for the Council, made an oral call for the production of the archive documents to which Mr Eldridge referred in his evidence on the second morning of his cross-examination. Documents were duly produced and made available to Mr Goot on the third morning of Mr Eldridge’s cross-examination. The documents produced revealed a number of different versions of the minutes which had been provided to the Council by ICAC and about which Mr Eldridge had been cross-examined on the first day of his evidence. These differences were highly significant and, for the most part, related to Mr Eldridge’s presence at particular meetings in relation to Inglewood Road and/or his involvement in that project, in particular but not limited to the drafting of agreements and unit trust documents.
The differences in the versions of sets of minutes for various days in turn prompted a further call for the metadata for the documents produced from the Eldridge Archive. Mr Eldridge was apparently not familiar with the concept of metadata, inquiring what metadata was when the oral call was made. (Metadata, in the context of documents stored on a computer, is data that “sits behind” any given document and identifies the time and date of the documents’ original creation and, if the version of the document on the computer system has been modified since it was originally created or placed on the system, the date of that modification). The metadata called for was subsequently produced by Mr Eldridge’s lawyers. It revealed that the Inglewood Estate minutes produced from the Eldridge Archive for 29 April 2015, 12 June 2015 and 22 September 2015 had each been modified in a 10 minute period on the morning of 22 February 2017. The significance of that date was that it was the day Mr Eldridge was stood down from his position as General Manager pending an investigation into the alleged conflict of interest.
The differences between the versions of the minutes as produced to the Council by ICAC and subsequently tendered by the Council in the proceedings (the ICAC Produced Minutes) and those produced by Mr Eldridge from the Eldridge Archive will be pointed out as each set of minutes is set out below, noting that the minutes produced from the Eldridge Archive were subject to a s 136 limitation under the Evidence Act1995 (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.
1. My ruling in this regard was as follows:
The ICAC Produced Minutes of the meeting of 29 April 2015 recorded that Mr Eldridge, Mr Joshua Eldridge, Mr Brunskill and Ms White were present [CB 2/996]. The minutes continued:

“General:
●   Discussed the progress of the Development
●   Josh and Graeme to go to Westpac to finalise opening of account.
●   Next stage required by 1 July 2015 for submission to council
●   Discussion in regards to preparation of Company Accounts and it has been agreed the cost would be $1000.00 per year.
Accounts to be paid:
●   CST – Company Purchase – $655.00
●   AE Design Partnership – $4065.88
These have been approved for payment.
Action:
●   Josh to contact Tristan [Kell] to confirm what is required to be done for the Reports
●   Alan to prepare Partnership Agreement
●   Vicki to prepare Cashflow
●   Next Meeting to be schedules [sic] prior to 10 May.” (emphasis added)

The version of the minutes of the meeting of 29 April 2015 produced by Mr Eldridge from the Eldridge Archive differed from the above set of minutes in the following significant respects:

Alan Eldridge was not shown as being present at the meeting; and
the reference in the third last bullet point of the ICAC Produced Minutes, namely, to “Alan to prepare Partnership Agreement”, was omitted from the set of minutes produced from the Eldridge Archive.
1. 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].
2. On 12 June 2015, Mr Eldridge participated in another meeting regarding “Inglewood Road Estate” according to the ICAC Produced Minutes. Also in attendance according to that set of minutes were Mr Brunskill, Mr Joshua Eldridge and Ms White. The meeting minutes were as follows [CB 2/1002]:
“General:
●   Discussed the progress of the Development
●   Fee Proposal from AE Designs with an Updated Scope of Works required. Next Stage required by 30 June 2015 for submission to council.
●   Discussion in regards to the Meeting Graeme and Josh had with Graeme’s Accountant.
○   Concerns of the Risk for Graeme
○   Selling Farm Land to another Entity
○   Set up of a Trust (Unit Trust)
This is not an issue with Alan and Josh and will be addressed when required.
●   Alan has suggested bringing in more investors into the project. Alan had mentioned that he would like to possibly bring Mark Fleming as an investor to the project. Graeme did not have an issue with this.
●   Further funding will be required for this stage, approx. $30,000. This will be required once the invoices have been issued for payment.
Accounts to be paid:
●   AE Design Partnership – $4023.25 (This has been approved for Payment)
These have been approved for payment.
Action:
●   Approval for Stage 3 to be done by AE Designs (This has been actioned)”. (emphasis added)
1. 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:
Alan Eldridge was not shown as being present at the meeting in the Eldridge Archive version;
the words “Alan and” in the sentence in the ICAC Produced Minute — “this is not an issue with Alan and Josh and will be addressed when required” — prior to the fourth bullet point did not include the words “Alan and” in the Minutes produced from the Eldridge Archive; and
the sentences “Alan has suggested bringing in more investors into the project. Alan had mentioned that he would like to possibly bring Mark Fleming as an investor to the project. Graeme did not have an issue with this” do not appear in the version of the minutes produced from the Eldridge Archive.
1. 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.
2. Attached to the application was a document authored by Mr Kell on behalf of AE Design Partnership and entitled “Inglewood Road: Master Plan Report” [CB 2/012]. This document was structured as a series of plans and maps providing an explanation of matters including:
1. the proposed project’s compliance with the Wagga Wagga Spatial Plan 2013-2043;
2. the social, environmental and infrastructure context of the project;
3. analysis of the proposed project site;
4. the development footprint;
5. the indicative lot layout and lot sizes;
6. the necessary amendment to land use zoning; and
7. a summary and recommendation in the following terms [CB 2/1036]:
“The proposed rezoning would amend the land-use zoning and minimum lot size to enable a large lot rural lifestyle land subdivision. While consistent with the Wagga Spatial Plan the proposed subdivision is not supported by a residential study at this current time.
From a strategic planning perspective the site is within an area, which has undergone transition over recent years with smaller land parcels that have been historically subdivided utilised for rural lifestyle lots. Additionally land to the north and south of the site are recent rural residential subdivisions.
Contextually this site is within a short distance to employment, education and recreational activities. The site has two potential road infrastructure upgrades, which would likely be serviced by improved public transport and the proposal would contribute to the payment of improved infrastructure in the area.
This site can be serviced by essential infrastructure and the landowners have commenced negotiations with these providers. This project provides Council the opportunity to implement the policy of Spatial Plan.”
1. A further meeting to discuss the “Inglewood Road Estate” was held on 6 August 2015 and, according to the ICAC Produced Minutes, this meeting was attended by Mr Brunskill, Mr Eldridge, Mr Joshua Eldridge and Ms White. The ICAC Produced Minutes of this meeting were as follows [CB 2/1132]:
“General:
●   Discussed the progress of the Development
●   Application requires [sic] be signed today by the owners of adjoining properties to the development. Once signed this is to be submitted to council by Friday 7^th August 2015.
●   Council Feedback to the Proposal:
○   Supply and Demand (More Supporting Documents)
○   Restricting other land owners
●   More funding is required to cover the initial costs of the development. On calculation this will be $32,000. It has been agreed that Graeme and Josh will both contribute $16,000 each to cover these costs.
●   Graeme has agreed to pay the $10,500 for the lodgement of the application to the Council. This amount will be deducted from the $16,000 contribution required.
Accounts to be paid – Approved for Payment
●   AE Design Partnership - $1504.25 (Invoice 415)
●   AE Design Partnership - $4918.38 (Invoice 425)
Action:
●   Funding the Development. Estimated cost is $100,000 to $150,000 for the Development Application. Looking at the Stages and which one would be more cost effective to develop first.
●   Meeting with All Owners
●   Meeting with Investors”. (emphasis added)
1. On 22 September 2015, a further meeting occurred at which Mr Brunskill, Mr Joshua Eldridge, Mr Eldridge and Ms White were present. The ICAC Produced Minutes recorded the following:
“General:
●   Proposal has been Submitted
●   Supporting evidence is required – Report to be Done
○   2 Valuers to meet with Josh [Eldridge] (Craig Barrett & Chris Egan)
○   Restricting other land owners
●   Cashflow – Funds Required
○   Graeme - $10,000
○   Josh - $19,500
Accounts to be paid – Approved for Payment
●   Aitken Rowe Testing - $1507.00 (Inv 7136)
●   GHD - 13684.00 (Inv 2217906)
●   AE Design Partnership - $13068.00 (Inv 483)
●   AE Design Partnership - $5423.00 (Inv 526)
Action:
●   Unit Trust to be set up. Meeting to discuss the setup next week with Alan [Eldridge], Josh [Eldridge], Graeme [Brunskill] & Dan (Bush&Campbell)
●   Neighbours Meeting to follow
○   Presentation on the Development
○   Options to neighbours – Contribution or Trust to purchase land (First Right)”. (emphasis added).
1. The material differences between the ICAC Produced Minutes dated 22 September 2015 and those produced from the Eldridge Archive were as follows:
Mr Eldridge’s name does not appear in the list of those present at the meeting in the Eldridge Archive version of the minutes; and
under the sub-heading “Actions” the dot point in the ICAC Produced Minutes stating “unit trusts to be set up. Meeting to discuss the set up next week with Alan, Josh, Graeme and Dan (Bush&Campbell)” omits the reference to “Alan” in the minutes taken from the Eldridge Archive.
1. 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.
2. A further meeting in relation to Inglewood Road Estate was held on 3 December 2015 between Mr Brunskill, Mr Joshua Eldridge and Ms White. The minutes of this meeting were not produced by ICAC such that the only version before the Court had been retrieved from the Eldridge Archive. These minutes recorded the following:
“General:
●   General Discussion on the progress of the project
●   Looking and Funding to the Project and what needs to happen to progress
Accounts to be paid – Approved for Payment
●   AE Design Partnership - $5423.00 (Inv 526)
Actions
●   Josh [Eldridge] to meet with Craig Barrett in regards to a Valuation Report
●   Once Valuation Report received – Graeme [Brunskill] & Josh [Eldridge] to meet with Council
●   Letter to be sent to Neighbours in regards to share of Costing
●   Josh [Eldridge] to calculate – Consulting Fee”
1. 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.

Interim/Acting General Manager

Mr Eldridge was appointed as Interim or Acting General Manager of the Council on 7 October 2015 for the period until 6 April 2016. Upon commencing his role as the Acting General Manager, Mr Eldridge resigned from his position as Chair and member of the Council’s Audit and Risk Committee.
At the time of his appointment, Mr Kendall was the Mayor. He deposed in his evidence in the proceedings to having had the following conversation with Mr Eldridge [CB 1/145 at [32]]:

“KENDALL: You’ve got to exit the day to day [running] of your family businesses. Think of it as an opportunity, a time for you to look at the future of those operations. You’re expected to dedicate yourself to Council. You can’t have any conflicts of interest, perceived or otherwise, between Council business and your existing business interests.
ELDRIDGE: I understand.”

Although Mr Eldridge accepted that he did have a conversation with Mr Kendall in or around late September or early October 2015 in relation to the requirement that he transition himself out of his existing business interests in order to perform the role of Acting General Manager, he denied that it occurred as deposed to by Mr Kendall, and instead advanced the following version of the conversation [CB 1/113 at [68]]:

“KENDALL: We would like you to take the role of interim GM, do you think you would be able to do the job? Given your current commitments?
ELDRIDGE: As you know, I have a number of business interests that I would need some transition time to deal with. I am currently in the process of transitioning to retirement and there is a retirement plan in place, but I could move things forward.

Mr Kendall did not deny that the conversation occurred as recalled by Mr Eldridge. Ultimately, Mr Kendall maintained that, irrespective of Mr Eldridge’s recollection of a different exchange, a conversation occurred between the two men as set out in [94] above. Under cross-examination, he described the purpose of this conversation as follows [T. 294]:

“I think the aim of the discussion was to make it very clear that he couldn’t have other employment but that because it was an interim position I wouldn’t expect him to go and totally change the structure of his interests in businesses and that was generally the essence of that conversation, what I’ve got in paragraph 32 is a paraphrase I guess of the essence of the discussion, that’s not meant to be a quote from that discussion because four or five years later it was hard to remember the exact words used.”

Mr Eldridge’s letter of offer, which he countersigned on 12 October 2015, noted that his employment conditions were “as per the Local Government Act 1993, the Office of Local Government “Standard Contract of Employment – General Managers of Local Councils in New South Wales” and “other relevant employment legislation”. The letter of offer also recorded that “[a]ll staff are required to abide by the Council’s Policies and Procedures, Code of Conduct and other relevant legislation”.
A media release issued by the Council on 7 October 2015 stated:

“Wagga Wagga City Council has appointed well-respected local businessman Alan Eldridge as Acting General Manager on a six-month contract.
‘Mr Eldridge has extensive experience in a range of fields, which will be of great benefit to Council and the community during this transition period,’ Mayor of the City of Wagga Wagga Councillor Rod Kendall said.
‘Mr Eldridge has been the Chair of Council’s Audit and risk Committee since 2009 and has a background in managing large organisations.
‘‘He has also been involved with the local government amalgamation process mainly in Queensland and is a special administrator appointed by the Federal Government to assist organisations that require senior management experience.’”

It is plain that, at the time of his appointment as Acting General Manager of the Council, Mr Eldridge was a very experienced businessman whose experience extended to local government generally and to Wagga Wagga City Council in particular.
The appointment of a person to the role of general manager of a council is required by s 334 of the Act. Section 335 of the Act provides:

“The general manager of a council has the following functions:
(a) to conduct the day-to-day management of the council in accordance with the strategic plans, programs, strategies and policies of the council,
(b) to implement, without undue delay, lawful decisions of the council,

The technical defence relied upon by Mr Eldridge, namely that he did not personally receive payment, also relies upon a narrow interpretation of the word “remuneration” that I do not consider it bears in the particular contractual context in which it appears. It should be interpreted, in my opinion, to refer to remuneration not only directly but also indirectly received. Clause 6.1.2(k) of the Standard Contract is for the benefit of the Council and ultimately its ratepayers. It should be given a broad and purposive construction.
When queried as to the relevance of the email of 12 July 2016 regarding the fictional funeral, and Mr Eldridge’s request that his visit to Batemans Bay on 14 July “remain confidential”, Mr Fernon asserted that they were immaterial to the issue in question, as the visit “did not interfere with his work at council” and it was “not demonstrated that there was any meeting that he didn’t go to, was unable to go to or the like” [T. 753]. Apart from being inconsistent with the statement in the email to apologise for cancelled meetings, the visit on 14 July 2017 took Mr Eldridge out of action for a day, as did the visit on 1 July 2017 and 23 March of the same year. None of these visits were taken as leave. They were at the Council’s unauthorised expense.
In my opinion, a clear breach of cl 6.1.2(k) of the Standard Contract has been established. The question which then arises is as to whether alone or in conjunction with other breaches that I have found to be established, it would justify Mr Eldridge’s summary dismissal. In my opinion, it would certainly justify termination when considered in conjunction with Mr Eldridge’s pecuniary disclosure breaches and failure to disclose his son’s interest in the Inglewood Road Planning Proposal.

Retainer of solicitors on a personal matter and without appropriate approval

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

Use of Council letterhead to issue press release regarding personal matters

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

Failure to act honestly and exercise a reasonable degree of care and diligence

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

Unauthorised personal expenditure

The Council pleaded at [5b(h)] of its Further Amended Defence, that it was justified in the summary termination of Mr Eldridge’s employment as he had breached cls 6.1.2(m)–(n) by, amongst other things “incurr[ing] expenses paid for by Council or reimbursed that were personal in nature”. The terms of these sub-clauses have been set out at [102] above.
The Further Amended Defence, somewhat surprisingly, did not provide any particulars of the personal expenses said to have been incurred by Mr Eldridge and paid for by the Council, other than by way of the compendious statement “[f]urther particulars will be provided in the defendant’s evidence in these proceedings.”
Some examples were given of disputed expenses in the affidavit evidence filed on behalf of the Council by Mayor Conkey and Deputy Mayor Tout. For reasons explained below, the only expense which featured in the Council’s case as ultimately put was “one example” referred to by Mayor Conkey as being for “a bill for one meal that was $288”. His evidence in relation to this was as follows: [CB 1/175–176]:

“When I asked [Mr Eldridge] about this during my reconciliation of his Council credit card, [Mr Eldridge] said ‘I took Committee for Wagga.’ … When I saw [Ms] Galloway, I said ‘it’s nice that Alan took you for lunch.’ [Ms Galloway] said to [Mr Conkey] ‘[w]e didn’t go to lunch with [Mr] Eldridge.’
… Soon after, I raised this with [Mr Eldridge], who told me when confronted ‘I took Colin Duff to lunch’ … I took from this that [Mr Eldridge] had taken a friend to lunch and had incurred a large expense to be paid for by Council in doing so.” (emphasis in original).

The Chair of the Committee for Wagga Wagga was Ms Judy Galloway (Ms Galloway), and its CEO was Mr Chris Fitzpatrick (Mr Fitzpatrick). Mr Colin Duff (Mr Duff) was a member of the Committee for Wagga Wagga. The Committee for Wagga Wagga was and is a non-profit organisation concerned with community and commercial activities in the city of Wagga Wagga.

In its opening submissions, the Council referred to cl 12 of the Standard Contract in addition to cls 6.1.2(m)–(n). Clause 12 was entitled “Expenses and credit cards” and provided that:

“In addition to any duties or entitlements that may be set out in any relevant policies of Council as adopted by Council from time to time, the employee will:
12.1   keep such records of expenses, travel and motor vehicle use as required by Council from time to time,
12.2   be reimbursed by Council for expenses properly incurred on Council business, subject to Council’s prior approval to this expense being incurred,
12.3   only use any credit card provided by Council for expenses incurred on Council business, and
12.4   return any credit card provided by Council on request from Council”. (emphasis added).

The Council submitted that Mr Eldridge had:

“seriously and/or persistently breached cl 12 as he had, from time to time, incurred expenses which were not properly incurred on Council business. One such example being a $288 lunch attended by Mr Eldridge and Colin Duff which, on the Council’s evidence (which ought be accepted), was entirely unrelated to any Council business.”

Notwithstanding the reference “from time to time”, implying as it did a series of unauthorised personal expenses having been incurred, as noted at [9] above, this aspect of the Council’s case was ultimately confined to one item of expenditure amounting to $281.10 in relation to a dinner held on Saturday 1 October 2016 at the Pavilion restaurant in Wagga Wagga which Mr Eldridge had acquitted as being “meeting C4W” and which was described in the Council’s “Purchase Card Account Reconciliation” as “1/10/2016 Dinner meeting with C4W PAVILION WAGGA WAGGA”. “C4W” was shorthand for the Committee for Wagga Wagga.
It may be noted that, although the amount of $281.10 was approximately the same as the $288.00 referred to in the Council’s opening submissions and Mayor Conkey’s evidence, the 1 October 2016 disputed expense was for a dinner and not a lunch which Mayor Conkey had evidently assumed in his questioning of Mr Eldridge.
In reply to Mayor Conkey’s evidence, Mr Eldridge accepted that he had taken Mr Duff to lunch “in the course of investigating a complaint concerning Council business” [CB 1/122–123]. Although Mr Eldridge could not recall the specific amount of the expense incurred, it was his belief that it “was approved in the normal course”. He also recalled a conversation with Mayor Conkey to similar effect as that set out at [493] above as follows:

“CONKEY: Did you take the Chair and the CEO of the Committee for Wagga Wagga to lunch?
ELDRIDGE: No. I took another director of the Committee to lunch.”

It was not in dispute that Mr Duff was a close friend of Mr Eldridge’s. The following exchange occurred during the fourth and final day of Mr Eldridge’s cross-examination [T. 684–685], Mr Eldridge having been shown the relevant purchase card reconciliation entry:

“Q:  If I can take you to the third-last entry on that page which is a charge on 1 October 2016 at Pavilion Wagga Wagga for $255.55 plus GST for dinner meeting with C4 Wagga – I think committee members; do you see that entry?
A:   I see that entry.
Q:   I think you’ve now said that that was in fact a dinner with Mr Colin Duff who was a committee member of the committee for Wagga; is that right?
A:   Well I’m not.
Q:   Isn’t that your evidence?
A:   I’d have to see my handwritten notes on that, there’s a reason for it, because that is not the date and that is not the place where I met Colin Duff for the committee for Wagga and I don’t believe that’s the transaction that Mr Conkey puts in – mentions in his affidavit. I think that’s another transaction so I’d have to see my handwritten notes on that one.
Q:   Well tell me it’s a Saturday, I want you to accept that the 1 October 2016 was a Saturday—
A:   … I agree with that.
Q:   $281.10 inclusive of GST.
A:   It’s the wrong transaction.
Q:   I beg your pardon?
A:   It’s the wrong transaction, sir.
Q:   But it’s your transaction – you’re not suggesting that this is –
A:   No, no, no, I don’t know what it was for but I would have to see it might well have been something to do with the committee for Wagga but the Duff matter is not that one.
Q:   Mr Duff was a friend of yours?
A:   Yes, and the director of the committee for Wagga.
…
Q:   1 October 2016, $281.10, and that is your handwriting, ‘meeting C4W’?
A:   That seems to be, yeah … yeah okay I accept that I had that meeting at the Pavilion and it was for the committee—
Q:   With Mr Colin Duff.
A:   No, I don’t think he was at that meeting.
Q:   … You can’t assist us with whom you had a meal on the Saturday night, 1 October, for $255.55; can you?
A:   Not looking at this information in front of me, no.” (emphasis added).

Putting aside the quantum of the expenditure, the identity of Mr Eldridge’s dinner companion on 1 October 2016 was material to this allegation, as Mayor Conkey accepted that he would “definitely not” have taken issue with the propriety of the expenditure if the dinner guest had been Ms Galloway or Mr Fitzpatrick. On the other hand, he expressed the opinion that “because Colin Duff was a friend [of Mr Eldridge] … there was an adverse conclusion to be drawn against Mr Eldridge” [T. 87].
Both Mr Fitzpatrick and Ms Galloway affirmed affidavits in these proceedings, which were responsive to [98] of Mr Eldridge’s affidavit. These affidavits were read and formed part of the evidence, and neither of Mr Fitzpatrick or Ms Galloway was required for cross-examination. Mr Fitzpatrick’s evidence focussed on Mr Eldridge’s description of his meeting with Mr Duff as occurring in the course of the investigation of a complaint, and read as follows:

“As CEO of Committee4Wagga I did not endorse or authorise a meeting between Colin Duff and Alan Eldridge to discuss any issues between Committee4Wagga and Wagga Council or the relationship between the two organisations.
… Alan Eldridge says that he took Colin Duff a director of Committee4Wagga to lunch in the course of investigating a complaint concerning Council business. As CEO of the Committee4Wagga I had no knowledge whatsoever of any such complaint. I also had no knowledge whatsoever of the meeting occurring.
At no time did Colin Duff ever speak to me about the lunch, or the complaint, or the discussion with Alan Eldridge. Colin Duff did not raise the issue either with me personally as CEO or at the Board level in a meeting of the Board.”

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

“I am not aware of any complaint by the Committee4Wagga in relation to Wagga City Council.
As chairperson I regularly met with Council to discuss issues concerning the city however there was never a complaint which is suggested in paragraph 98 [of Mr Eldridge’s affidavit].
The Committee4Wagga met with Council to discuss issues concerning the city however there was never a complaint which is suggested in paragraph 98.
These meetings were always attended by the Chairperson or CEO of the Committee4Wagga and occasionally other Board members.
These meetings were always conducted at Council premises during business hours.
At no stage was any Board member ever authorised to hold a meeting representing the Committee4Wagga independently of the Chairperson or the CEO.
Colin Duff was never authorised to have a meeting with Alan Eldridge on behalf of Commtitee4Wagga. As I have stated above, I am not aware of any complaint made by Committee4Wagga in relation to the Council.
Whenever a meeting was held with Council, the outcome of the meeting and the nature of the discussion were always tabled and discussed at the next occurring Board meeting. These discussions were then minuted in the minutes of that Board meeting.
I have reviewed the Board minutes and confirm that Colin Duff attended the Board meeting which was held on 5 October 2016.
Colin Duff did not disclose any meeting as suggested in paragraph 98 of the affidavit of Alan Eldridge …”

The competing contentions as to the $281.10 paid by Mr Eldridge on his Council purchase card at the Pavilion restaurant on the night of 1 October 2016, alleged by the Council to be a personal expense, may be summarised as follows:

Mr Eldridge accepted that he did incur this expense, and that he prepared the accompanying narration “Meeting C4W”. It was also his evidence that he had a meeting over lunch with Mr Duff during his tenure as the General Manager of the Council for the purposes of discussing a complaint concerning Council business. However, he denied that the lunch meeting he had referred to was in fact the dinner on 1 October 2016 at the Pavilion, Wagga Wagga; and
the Council asserted that Mr Eldridge incurred the expense in the course of a personal or social interaction with Mr Duff, as opposed to a meeting to discuss Council business. This was said to be substantiated by the evidence of Mr Fitzpatrick and Ms Galloway, the latter of whom highlighted the absence of any contemporaneous record of such meeting, contrary to the ordinary practice of the Committee for Wagga Wagga.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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”.
6. 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

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

**********

Endnotes

“Mr Fernon seeks to tender a set of documents which have been marked for identification 7 and which were the subject of questions asked of Mr Eldridge in the course of his cross‑examination. Mr Eldridge identified these documents in his evidence as documents which he identified on a server of the Eldridge group, or a server of Eldridge First National Real Estate in an archive file. These documents as produced were not the subject of any discovery and their provenance as genuine minutes is not accepted by the defendant. In those circumstances, as the documents were not discovered and were only introduced into the case in answer to a call for production on the sixth day of the case, having been referred to for the first time by Mr Eldridge in his evidence that morning, and as their provenance as genuine minutes of the meetings to which they purport to refer is not admitted, these documents will be admitted as exhibit P2 but they are not admitted for the purposes of establishing the facts which they purport to record.”

In making this ruling, I made it clear on the transcript following an intervention by Mr Fernon that I was not implying that the documents fell within a discovery category and ought to have been discovered.

Decision last updated: 31 March 2021

Medium Neutral Citation:	Eldridge v Wagga Wagga City Council [2021] NSWSC 312
Hearing dates:	2, 3, 4, 5, 8, 9, 10, 11 and 12 March 2021
Date of orders:	31 March 2021
Decision date:	31 March 2021
Jurisdiction:	Common Law
Before:	Bell P
Decision:	1. Judgment for the defendant. 2. Plaintiff to pay the defendant’s costs.
Catchwords:	CONTRACTS – contract of employment – breach of contract – consequences of breach – right to termination – where termination without notice – onus of demonstrating that termination was justified – where additional grounds available to justify termination EMPLOYMENT AND INDUSTRIAL LAW – contract – conditions of employment – whether plaintiff breached conditions of employment by failure to disclose pecuniary interests, engagement in external work, and “assorted misconduct” EMPLOYMENT AND INDUSTRIAL LAW – contract – termination – summary dismissal – whether the plaintiff engaged in serious or persistent breaches of his contract of employment which entitled the defendant summarily to dismiss the plaintiff without notice EMPLOYMENT AND INDUSTRIAL LAW – public sector – local government – General Manager of council – determinations as to allegations of serious breaches of contract of employment giving rise to summary dismissal LOCAL GOVERNMENT – public officers – disclosure of interests – Local Government Act 1993 (NSW) part 2, div 1 – whether plaintiff knew or ought reasonably to have known that disclosure was false or misleading in a material particular
Legislation Cited:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Evidence Act 1995 (NSW) ss 136, 140(2) Local Government Act 1993 (NSW) ss 334, 335, 338, 339, 353(1), 439(1), 440, 442(1), 443, 445, 451, 449, 459, 460(1), 462, 465, 468, 469, 478(1), 482, 486A, pt 2 div 1, pt 3 div 1 Local Government Act 1993 (Qld) Independent Commission Against Corruption Act 1988 (NSW) s 111(4) Supreme Court Act 1970 (NSW) ss 23, 63
Cases Cited:	Bartlett v Australia and New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66; [1933] HCA 8 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2014] WASCA 29 Clouston & Co Ltd v Corry [1906] AC 122 Cockle v Isaksen (1957) 99 CLR 155; [1957] HCA 85 Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64 Coope v LCM Litigation Fund Pty Ltd (2016) 333 ALR 524; [2016] NSWCA 37 Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 LCM Litigation Fund Pty Ltd v Coope [2015] NSWSC 992 Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121; [1932] HCA 10 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 North v Television Corp Ltd (1976) 11 ALR 599 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; [2012] HCA 33 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117; [2001] VSC 150 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359; [1931] HCA 21 Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701
Texts Cited:	B Creighton and A Stewart, Labour Law (5th ed, 2010, Federation Press) I Neil and D Chin, The Modern Contract of Employment (2nd ed, 2017, Thomson Reuters) M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)
Category:	Principal judgment
Parties:	Alan Eldridge (Plaintiff) Wagga Wagga City Council (Defendant)
Representation:	Counsel: J J Fernon SC with D J A Mackay (Plaintiff) R M Goot AO SC with V Bulut (Defendant) Solicitors: Macpherson Kelley (Plaintiff) RGSLAW (Defendant)
File Number(s):	2018/297060