General Manager of the Fair Work Commission v Smyth - [2024] FCA 304

FEDERAL COURT OF AUSTRALIA
General Manager of the Fair Work Commission v Smyth [2024] FCA 304

File number: QUD 411 of 2021

Judgment of: LOGAN J

Date of judgment: 28 March 2024

Catchwords:
INDUSTRIAL LAW – where the applicant applies for declarations of contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) and civil penalties against the respondent, in his capacity as President of the Queensland District Branch of the Construction, Forestry, Maritime, Mining & Energy Union’s (the Union) Mining & Energy Division – where the respondent was issued a credit card by the Union – where the Union had a policy and relevant expenditure rules that regulated the use of the credit card – where the respondent had a small, no-interest loan facility with the Union – where any outstanding credit card debits were cleared each month via a banking procedure and were subsequently debited to the respondent’s loan facility – where the respondent allegedly did not use the credit card in accordance with the policy over a two year period – whether this credit card usage contravened ss 285, 286 and 287 of the FWRO Act

INDUSTRIAL LAW – where, prima facie, some contraventions of ss 285, 286 and 287 of the FWRO Act established on the evidence – where s 320 of the FWRO Act deems that, after a period of four years, acts are taken to have been done in compliance with the rules of an registered industrial organisation – where the applicant made no application under section 321 of the FWRO Act – whether s 320 of the FWRO Act has the effect of retrospectively adjudging that acts done in contravention of the rules are not, in fact, contraventions – proceedings dismissed

Legislation:
Conciliation and Arbitration Act 1904 (Cth) ss 171F, 171G

Conciliation and Arbitration (Organisations) Act 1974 (Cth) s 16

Corporations Act 2001 (Cth) s 180

Evidence Act 1995 (Cth) ss 140, 144

Fair Work Act 2009 (Cth)

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth)

Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 285, 286, 287, 315, 320, 321, 329A, 331

Income Tax Assessment Act 1936 (Cth) s 8-1

Income Tax Assessment Act 1997 (Cth) ss 50.1, 50.15

Civil Liability Act 2002 (NSW) s 5B

Trade Union Act 1871 (UK)

Companies (West Australia) Code s 229

Cases cited:
Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263

Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450

Australian Securities & Investments Commission v Healey (No 2) (2011) 196 FCR 430

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (2014) 322 ALR 45

Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209

Australian Securities and Investments Commission v Lewski (2018) 266 CLR 173

Australian Securities and Investments Commission v Vines (2005) 65 NSWLR 281

Briginshaw v Briginshaw (1938) 60 CLR 336

Byrne v Baker [1964] VR 443

Construction Forestry Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444

Daniels v Anderson (1995) 37 NSWLR 438

Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152

Edwards v Attorney-General (NSW) (2004) 60 NSWLR 667

Egan v Harradine (1975) 25 FLR 336

Gauntlett v Repatriation Commission (1991) 32 FCR 73

General Managerof theFair Work Commission v McGiveron [2017] FCA 405

Health Services Union v Jackson (No 4) (2015) 108 ACSR 156

Heatons Transport (St Helens) Limited v Transport General Workers Union [1973] AC 15

Jolly v Sharma [2024] FCA 171

Kucks v CSR Limited (1996) 66 IR 182

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

New South Wales v Commonwealth (2006) 229 CLR 1

Permanent Building Society (In liq) v Wheeler (1994) 11 WAR 187

R v Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 654

Ralph v Repatriation Commission (2016) 248 FCR 438

Re City Equitable Fire Insurance Co [1925] 1 Ch. 407

Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620

Re Wave Capital Ltd (2003) 47 ACSR 418

Registered Organisations Commissioner v Australian Nursing and Midwifery Federation [2018] FCA 1735

Registered Organisations Commissioner v Australian Workers’ Union (2020) 281 FCR 518

Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465

Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1

Division: Fair Work Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 385

Date of last submission: 16 May 2023

Date of hearing: 28 November 2022 – 6 December 2022
3 – 4 April 2023

Counsel for the Applicant: Ms J Firkin KC with Mr A Crocker

Solicitor for the Applicant: Maddocks Lawyers

Counsel for the Respondent: Mr P McCafferty KC with Mr H Clift

Solicitor for the Respondent: Hall Payne Lawyers

ORDERS

QUD 411 of 2021

BETWEEN:
GENERAL MANAGER OF THE FAIR WORK COMMISSION

Applicant

AND:
STEPHEN SMYTH

Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:
1.The proceedings be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
LOGAN J:

Mr Stephen Smyth is a trade unionist.
That is not a term of derision. From its inception, the federal industrial system has made legislative provision for the lawful existence of registered industrial organisations to represent, in that system, the industrial interests of groups of workers or, as the case may be, employers: see Pt V of the Conciliation and Arbitration Act 1904 (Cth) (Conciliation and Arbitration Act), as enacted.
Absent such legislative authorisation, a combination of workers undertaking or subscribing to organisational rules providing for the undertaking of industrial action in concert might, at common law, be regarded as an unlawful conspiracy in restraint of trade. Such legislative authorisation may be traced to the Trade Union Act 1871 (UK). Contemporary federal provision is found in the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act). I made reference to the origins of trade unions in Construction Forestry Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444, at [30] to [32]. It is neither necessary, nor even appropriate, in the circumstances of the present case to embark upon any assessment of the virtues and vices of trade unions and their manifestation in the form of registered industrial organisations, either in the federal industrial system or otherwise. It is, however, necessary to bear in mind that the context in which proscriptions in the FWRO Act concerning the conduct of officers and officials of registered industrial organisations fall for application is very different to the context in which analogous provisions found in the Corporations Act 2001 (Cth) fall for application.
Related to this, and for reasons set out below, it is also necessary to appreciate that, as is a matter of common knowledge in this State (s 144(1), Evidence Act 1995 (Cth) (Evidence Act)), the first Monday in May is Labour Day. Likewise, it is common knowledge that Labour Day is marked, traditionally on that day in May, as a public holiday to celebrate organised labour and recall its great historic achievement in the late 19th and early 20th centuries, the eight-hour working day. Understandably and genuinely, Labour Day has special significance for Mr Smyth.
One industrial organisation registered or taken to be registered under the FWRO Act is the Construction, Forestry, Maritime, Mining & Energy Union (the Union, which term embraces the pre-amalgamation predecessor).
Mr Smyth is, and was at all times material to this proceeding, the President of the Queensland District Branch (Branch) of the Union’s Mining & Energy Division (Division). Under its governing rules, the office of President is the most senior within the Branch. The Branch President is also, as Mr Smyth readily accepted in cross-examination, the “public face” of the Branch. That is not to say that the Branch President is responsible for the day-to-day administration of the Branch. As is not uncommon under the rules of registered industrial organisations, that role is undertaken by the Branch Secretary.
Although the Branch and, for that matter, the Division are not legal entities separate from the Union, each, on the evidence (which includes relevant Union rules), enjoys a considerable degree of autonomy in administrative, financial and operational affairs. While that makes it convenient at times to refer just to the Branch or, as the case may be, to the Division, it is important to read such references subject to the point just made about their absence of separate legal personality.
There was some brief evidence that Mr Smyth also held office in a separate, but not unrelated State registered industrial organisation: see Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620. Such separate registration was, and remains, essential for participation in some State industrial relations systems. However, one sequel to New South Wales v Commonwealth (2006) 229 CLR 1 (the Work Choices case), and, with it, the upholding of a much greater reach in Federal industrial regulation, has been a corresponding diminution in occasion for participation in State industrial relations systems by State registered industrial organisations, other than in respect of those employed by a State or an emanation thereof. Neither party to these proceedings considered it necessary to explore in any detail that separate office held by Mr Smyth in that separate organisation, or whatever might be their ramifications in law for the present proceedings.
Apart from the privilege of legislative authorisation of particular activities which might otherwise be unlawful, registered industrial organisations enjoy other privileges under federal law, notably the exemption of their ordinary and statutory income from income tax: s 50.1 and s 50.15, Income Tax Assessment Act 1997 (Cth).
With these privileges come particular responsibilities, both for registered organisations and those who hold office in them. As to the latter, these materially include, for an officer of an organisation such as Mr Smyth, duties of care and diligence (s 285, FWRO Act), an obligation of discharging duties in good faith and for a proper purpose (s 286, FWRO Act) and an obligation of not improperly using his or her position to gain an advantage for himself or herself or someone else; or cause detriment to the organisation or to another person (s 287, FWRO Act).
This case is concerned with whether the General Manager of the Fair Work Commission (General Manager) has proved that, as President of the Branch, Mr Smyth contravened, in ways which are detailed below, and in ways which it is alleged ought not be the subject of relief from liability (qv s 315, FWRO Act), ss 285, 286 and 287 of the FWRO Act. It was originally instituted by an official known as the Registered Organisations Commissioner (Commissioner). As a result of amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), that office ceased to exist, with the General Manager assuming, as successor, responsibility, on and from 6 March 2023, for the conduct of the proceeding as applicant.
It is for the General Manager to prove the alleged contraventions. Although the proceedings are civil in character such that the standard of proof is proof on the balance of probabilities (s 140(1), Evidence Act), contraventions may be attended with penal sanctions. Thus, a contravention is not so proved by inexact proofs or indirect references: s 140(2), Evidence Act; Briginshaw v Briginshaw (1938) 60 CLR 336.
In the event that any contravention is proved, it is for Mr Smyth to prove, again on the balance of probabilities, that he should be relieved from liability pursuant to s 315 of the FWRO Act: Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, at [78] per Santow JA; cited with approval by Middleton J in Australian Securities & Investments Commission v Healey (No 2) (2011) 196 FCR 430, at [86] and, in turn, as to the latter case, cited with approval by Murphy J in Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (2014) 322 ALR 45, at [68] (ASIC v Australian Property Custodian). ASIC v Australian Property Custodian culminated at ultimate appellate level in Australian Securities and Investments Commission v Lewski (2018) 266 CLR 173 but nothing the High Court said in that case called into question the correctness of the conclusion as to onus reached in the original jurisdiction by Murphy J.
There is a further issue in the proceedings as to what validating effect, if any, s 320 of the FWRO Act had four years after the date of particular alleged contraventions. Given this issue, any conclusions I reach below concerning any of the alleged contraventions must be, and are, subject to whatever may be the effect of s 320 in the circumstances. Mr Smyth contends for a novel but, if accepted, pervasively ameliorating and absolving application of that section. Given this, it seems to me desirable that I first express conclusions with respect to whether, but for the contended application of that section, any contraventions would have been proved and, if so, whether any relief would have been granted under s 315 of the FWRO Act.
In light of the very nature of these proceedings and of certain evidence given in them, it is desirable to make some further, introductory observations. These observations are based on both the statutory functions consigned to the General Manager and, beforehand, to the Commissioner, on the purpose of a proceeding such as this and on listening to and observing Mr Smyth closely during the course of his oral evidence, which included a lengthy cross-examination.
Mr Smyth’s commitment to trade unionism and the benefits it can bring those in the mining industry in particular, especially with respect to workplace health and safety, was palpable, unfeigned and transparently sincere. In a sense, I rather thought this was in his blood. For he is a miner’s son and commenced his working life as a miner. Related to that, May Day, and his attendance as President at a Branch Lodge event to mark that day, was clearly meaningful and important to him. A Lodge is a local organisational sub-unit within the Branch. It will be necessary to return to the subject of his attendance later in these reasons when considering whether particular alleged contraventions of the FWRO Act by him are proved.
At one stage, Mr Smyth was asked whether he resented being subject to these proceedings. His affirmative answer was frank and likewise unfeigned. I certainly do not regard his answer as detrimental to his credibility. There is a deeply personal quality about the proceedings. I am quite sure that Mr Smyth considers that there is nothing untoward about the alleged conduct, at least because it was, as he saw it, in accordance with his understanding of “custom and practice” within the Branch. Further, the proceedings have doubtless had an opportunity cost for Mr Smyth in terms of his other responsibilities. I can also well understand, and indeed observed, the emotional, perhaps even physical, impact that respondency to the proceedings has had on him. However, I am well-satisfied, on the whole of the evidence, that there is nothing frivolous or vexatious about their institution by the Commissioner, or their continuance by the General Manager.
Further, although, as revealed below, I have reached some adverse conclusions concerning the General Manager’s case, I am also well-satisfied, again based on whole of the evidence, that it was brought in good faith by the Commissioner and likewise continued by the General Manager. A regulator such as the General Manager, and that official’s predecessor, the Commissioner, has a duty to perform the functions consigned to that office. These include promoting compliance with the financial reporting and accountability requirements of the FWRO Act: s 329A(1)(a)(ii).
One such means of promoting compliance is via the institution, where reasonable cause exists, of civil penalty proceedings. The purpose of a civil penalty regime, such as that found in the FWRO Act in respect of various duties for which that Act provides, is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450. Reasonable cause for the institution of proceedings is assessed in prospect. The finality which is at the heart of an exercise of judicial power can tend to suggest, after delivery of judgment, a certainty of outcome that often may never be present in prospect.
The expenditures which form the background to the alleged contraventions may conveniently be divided into a number of separate categories:
(a)plumbing expense;
(b)dental expense;
(c)USA car hire expense;
(d)Melbourne accommodation expense;
(e)Melbourne dinner expense;
(f)Mrs Smyth’s Melbourne airfare expense;
(g)sundry other private expenses as detailed in Table A (Table A expenses).
Each of these, save for the cost of an airfare to Melbourne in respect of travel by his wife, was paid for via a union-issued credit card. That credit card was a Commonwealth Bank corporate credit card issued to Mr Smyth as President, at the direction of the Branch, pursuant to an account with that bank operated by the Branch. Over the period covered by the alleged contraventions, there were about 50 such credit cards on issue. The airfare cost was separately paid for by the Branch.
Both before and during the times when each of the credit card expenditures was incurred, the Branch had in place a policy in respect of the use of corporate credit cards issued to Branch officials, including Mr Smyth. That was termed the “CFMEU Mining & Energy Corporate Commonwealth Bank Credit Card – Policy Covering Use by Cardholders” (Policy). It is common ground that, on or about 16 May 2014, Mr Smyth signed a copy of the Policy.
It is not controversial that Mr Smyth did use the union-issued credit card to make each of the credit card expenditures alleged.
While the case concerns particular alleged contraventions of the FWRO, not of the Policy per se, the subject of whether particular expenditures were or were not in conformity with the Policy is material to the reaching of a conclusion as to whether Mr Smyth did engage in particular contravening conduct. Further, it was the Rules of the Union (Rules) and the Divisional Rules which authorised expenditure, with the Policy in turn specifying the circumstances in which such expenditure via a union-issued credit card could permissibly occur. It is uncontroversial that Mr Smyth was aware of the terms of the Policy with respect to union-issued credit card use. That is not to say that he was aware either that the Policy had the meaning for which the General Manager contends at the times when the expenditures were made or that the General Manager’s contended meaning is correct.
The Policy provided:
Union issued Credit Cards are normally only to be used for work related expenditure. Private usage of cards is only permitted in infrequent and exceptional circumstances and where personal expenditure is incurred in conjunction with Union related expenditure e.g. room service or mini bar tab included in a hotel bill. The personal expenditure component is to be deducted from a claim sheet or deducted from wages within the normal billing period for the Card. Personal use of the Corporate Card will be monitored by the District Secretary/District President and Office Manager and personal use may be restricted or stopped if overuse applies.

Flowing from a controversy between the parties as to its meaning, the nature and extent of the private usage of the credit card authorised by the Branch via this quoted extract from the Policy was controversial in the proceedings.
The General Manager submitted that the usual meaning of the word “and” is conjunctive, such that the elements in the authorised private expenditure category are cumulative. Consequentially, it was submitted that personal expenses were not permitted unless the circumstances were not only “infrequent” and “exceptional”, but also “incurred in conjunction with Union related expenditure”. This construction was said to be consistent with the content and purpose of the Policy: to facilitate work related expenditure via a union-issued credit card.
The General Manager put that Mr Smyth had accepted, in cross-examination, the construction for which the General Manager contended. However, in context, and based on my very particular recollection of the exchange in which this alleged acceptance occurred, it was nothing more than an acknowledgement by him of a literal wording of the Policy by a person whose demeanour and immediate qualification as to application left me in no doubt that he had never considered the Policy had the conjunctive quality for which the General Manager contended. On the evidence, that view was consistent with the general pattern of Mr Smyth’s behaviour in using the credit card issued to him.
Mr Smyth submitted that the Policy permitted a person to use a union-issued credit card for personal expenditure in two categories of circumstances: in infrequent and exceptional circumstances; or where it is incurred in conjunction with Union related expenditure.
The Policy did not come into existence in a vacuum; nor was it unlawful for the Union or the Branch to formulate a policy concerning expenditure incurred via union-issued credit cards. Rule 24A of the Rules (Exhibit 7) provides:
24A - POLICIES AND PROCEDURES - EXPENDITURE
(a)The Union shall develop and implement internal control policies and procedures relating to the expenditure of the Union, to ensure that the Union is conducted in accordance with the principles of good governance and to ensure accountability to members of the Union.
(b) Such policies and procedures shall be adopted by the National Executive and once adopted, shall be binding on all officers and members of the Union. Such policies and procedures must be identified in the resolutions of the National Executive as Rule 24A policies and procedures.
(c)Rule 24A policies and procedures must be published on the website of the Union with fourteen (14) days of their adoption.
(d)The provisions of sub-rules (a) to (c) herein shall apply, mutatis mutandis, to each Branch, Division and Divisional/District Branch of the Union.
In its mutatis mutandis application via paragraph (d), Rule 24A authorised the adoption of the Policy by the Branch. Neither party suggested to the contrary. The Branch is a “District Branch” (see Rule 27(vi)) for the purposes of Rule 24A.
Because each party accepted that the Policy was applicable in relation to Mr Smyth’s usage of the union-issued credit card, I shall not deal immediately with how that policy is to be reconciled with the terms of a “collective agreement”, which also had application to Mr Smyth. I shall consider that subject after detailing my conclusion about the construction of the Policy.
The correct approach to the construction of the rules of trade unions and of registered industrial organisations is the subject of authority. Although the Policy is not a union rule, that does not, in my view, mean that authorities concerning the approach to the construction of union rules are irrelevant to its construction.
As to that approach, in R v Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 654, at 659, in detailing the approach to the construction of a union eligibility rule, Barwick CJ stated:
This is a legal question to be solved by legal considerations. But those considerations will, in relation to the present question, include any industrial meaning or usage of the words of the clause to be construed. As with all construction, the nature of the instrument in which the words appear and the purposes the instrument is evidently intended to serve or effect must be kept in mind. In this respect, it is proper, in my opinion, in the present case to acknowledge that the eligibility clause will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language. The purpose of the clause is to define, in brief terms, industries or callings relevant to the representative character of the union. But, granted this generosity of approach, the question of the meaning of the words used remains a legal question.
Although that statement was made in the context of construing an eligibility rule, it is by no means confined in its application just to the construction of that type of rule. Rather, it encapsulates the general approach to the construction of union rules. Further, as can be seen from the passage quoted, and, with respect, unsurprisingly, while text, context and purpose are important, so, too, is an appreciation that the Policy, like a union rule, has, more likely than not, been drawn by a layperson familiar with the union and its objects, rules, operations in practice and role, which includes but is not confined to participation in the industrial relations system, its membership and the industries in which those members work, rather than by a legally trained draftsman.
A similar point was made by Lord Wilberforce in delivering the joint opinion of a unanimous House of Lords in Heatons Transport (St Helens) Limited v Transport General Workers Union [1973] AC 15, at 100 – 101 (Heatons Transport):
But trade union rule books are not drafted by parliamentary draftsmen. Courts of law must resist the temptation to construe them as if they were, for that is not how they would be understood by the members who are the parties to the agreement of which the terms, or some of them, are set out in the rule book, nor how they would be, and in fact were, understood by the experienced members of the court.
Lest it be thought otherwise, my citation of Heatons Transport does not carry with it acceptance that an additional observation there made (at 101) by Lord Wilberforce about the role of custom and practice in the governance of a union is necessarily applicable either in the general, Australian context of the rules of a registered industrial organisation, or in the construction of the Policy. His Lordship’s additional observation entailed quoting with approval, at [99], this passage from the United Kingdom’s Trade Union Congress Handbook on the Industrial Relations Act 1971 (UK):
Trade union government does not however rely solely on what is written down in the rule book. It also depends upon custom and practice, by procedures which have developed over the years and which, although well understood by those who operate them, are not formally set out in the rules. Custom and practice may operate either by modifying a union's rules as they operate in practice, or by compensating for the absence of formal rules. Furthermore, the procedures which custom and practice lays down very often vary from workplace to workplace within the same industry, and even within different branches of the same union.
In relation to the construction of the Policy, it is not necessary to have regard to custom and practice to fill a gap or to supply a particular meaning to a phrase or term. Nor, in my view, could custom and practice of itself authorise expenditure which was contrary either to a union rule or to a policy made under such a rule. However, custom and practice may well serve to explain why, for example, a particular expenditure should be regarded as falling within the “work related category” of expenditure permissible via a union-issued credit card.
What follows, in my view, is that, as with a union rule, where the text of the Policy admits of constructional choices, a construction which furthers, or is at least consistent with, any evident purpose of the authorising rule is to be preferred to one which is not.
Also to be preferred is a construction which is in conformity with wider context. Self-evidently, Rule 24A contemplates the formulation of policies that will promote the interest not just of the Union as an abstract, separate legal entity, or of a District Branch, but also of its members in financial integrity and good governance in relation to the expenditure of the Union’s funds. Further, the governance dimension necessarily means that the Policy must be construed in the context of how the Rules provide for the wider organisation and governance of the Union and implications necessarily flowing from such provision. That therefore includes not just the Rules but also, materially, the Divisional Rules. Regard to the wider context of the Rules and the Divisional Rules discloses that, although there is a national executive, the Union has a structure of Divisions, on broad occupational lines with scope for most Divisions to have Branches constituted on a geographic basis. The Divisional Rules evidence an application of this with respect to the Division.
It may be accepted that the word “and” often has a conjunctive quality. But sometimes it can carry a disjunctive meaning. The Policy has been made under a rule of a registered organisation, the day-to-day operations of which are conducted under the Rules and also Divisional Rules, which make provision for organisational sub-division into geographically delineated branches. Further, under the Rules and the Divisional Rules, one such branch of one such Division covers the mining industry in a State as large and decentralised as Queensland, with that branch being further sub-divided into local, geographically disparate groupings of members which the Divisional Rules term “Lodges”. Once these features are understood, it is inherently likely that a person holding office as, presently materially, President is going to have to travel. And to do so frequently, not exceptionally. An express duty of the President in the Divisional Rules is “as far as possible, observe that the Rules are carried out by the District Branch Lodges” (rule 9(ii)(a)). That duty is quite apart from what one might infer from the diverse objects of the Rules (clause 4) and the Fair Work Act 2009 (Cth) (FWA), with the latter’s emphasis on enterprise bargaining, as to a need for the President to be seen by and interact with members at Lodge and enterprise level. Discharging the duties of an office which is the “public face” of the Branch is consistent with a peripatetic, rather than a monastic, life.
Once the Policy is read in the context of the FWA, the Rules and the Divisional Rules, there is, with respect, a quality of unreality, if not absurdity, and certainly contextual incongruity about the construction of the Policy promoted by the General Manager.
The illustrative example in the Policy of the hotel bill (“room service or mini bar tab included in a hotel bill”), read in context, indicates that there are two authorised private expenditure categories. One such category is expenditure which is in “infrequent and exceptional circumstances”; and (deliberately to use that word in the same way as I consider it is used in the Policy) the other category is “where personal expenditure is incurred in conjunction with Union related expenditure”.
For reasons already given, it is inherently unlikely that hotel bills will be “infrequent and exceptional” for those holding union-issued credit cards, especially including, and presently materially, the President. Instead, it is inherently likely that such bills will be frequent and unexceptional and paid for via the use of the credit card. Once it is understood from context that there is an inherent likelihood of travel, the selection of the example is not coincidental but apt as one of two categories of private expenditure permitted to be incurred (subject to later refund) via the union-issued credit card. Recalling that the Policy is not the work of a parliamentary draftsman supports this construction.
The Policy also states, “Personal use of the Corporate Card will be monitored by the District Secretary/District President and Office Manager and personal use may be restricted or stopped if overuse applies.” (emphasis added). The notion of “overuse” in respect of personal expenditure as a touchstone sits awkwardly with a concession which permits such use where the expenditure must, as the General Manager contended, be both “infrequent and exceptional circumstances” and “where … incurred in conjunction with Union related expenditure”. On that construction, any personal expenditure which was not in “infrequent and exceptional circumstances” would be “overuse”. In contrast, the construction promoted by Mr Smyth gives this feature of the Policy work to do even in respect of personal expenditures within the letter of one or the other permitted category according to a senior Branch official value judgement based on the overall circumstances of the use of the union issued credit card.
Adopting the construction of the Policy promoted by Mr Smyth is not subversive of the fiscal integrity or good governance purpose of Rule 24A, or any other rule either in the Rules or in the Divisional Rules. It does not, as the General Manager’s submissions suggested, concede a large charter for private credit card expenditure, rather the reverse. The illustrative example in the Policy underscores just how intimately associated with a work-related expenditure must be the private expenditure in the second category for it to be authorised. In that category, there must be a logical, incidental association between the work-related expenditure and the private expenditure. Otherwise, the private expenditure must fall within the obvious stricture of being infrequent and exceptional, which needs no exemplification.
The Policy does not confine the use of a union-issued credit card to work related expenditure, as opposed to specifying that such expenditure is the usual way in which the card must be used. That is made clear by the adverb, “normally”. “Private usage”, which in context means the same as “personal expenditure component” in the Policy, is permitted in the two specified categories.
So construing the Policy does not contravene either the Rules or the Divisional Rules, which do permit the making of a loan to a union member in defined circumstances. Mr Smyth was, at all material times, a member of the Union. Indeed, he had to be a financial member to hold the office of President: see rule 8(i)(e) of the Queensland District Branch part of the Divisional Rules. Also, by that rule, he retained “full membership rights of the Lodges of which they were members at the time of their election to District Branch Office”. One such right was eligibility to receive a loan from the Union in accordance with the Rules and the Divisional Rules.
For these reasons, I reject the construction of the Policy promoted by the General Manager and uphold that promoted by Mr Smyth.
I now consider the effect, if any, of the “collective agreement” in relation to credit card usage and the incurring, via it, of private expenditure.
Throughout the period covered by the alleged contraventions, Mr Smyth, as President, was the holder of one of the fulltime, elected offices within the Union, as provided for by the Rules and, in turn, the Divisional Rules. Under the Divisional Rules, the President is a one of the “District Executive Officers” and thus a member of the “District Executive”: rule 8(i)(a), Divisional Rules. That same rule provides that the office of President is one of those which is fulltime. The Divisional Rules specify the term of office (4 years) of a member of the District Executive (rule 9(i)(b)). They also specify that the President will receive remuneration but do not specify the amount. Instead, the Divisional Rules state that the President “shall receive such remuneration as shall be agreed upon from time to time between the District President and the Board of Management”: rule 9(ii)(a). As a member of the District Executive, the President is one of those who constitutes the “Board of Management”: rule 8(i)(b), Divisional Rules.
On the evidence, there is an agreement of the kind contemplated by rule 9(ii)(a) of the Divisional Rules. The origins of that agreement in relation to Mr Smyth may be traced to a Board of Management resolution dated 5 December 2011, which directed the District Executive to, inter alia, “Finalise the officials contract of employment for approval at the March 2012 Board of Management” (sic). Also on the evidence, the “contract of employment” was not approved at the Board of Management meeting in March 2012 but rather in December 2012. On 11 December 2012, the District Secretary sent an email to various Branch officials, including Mr Smyth, which enclosed a copy of the “contract of employment as endorsed at the December 2012 Board of Management”. The document enclosed was entitled the “CFMEU Officials and Officers Collective Agreement” (“Agreement”). The reference to the “CFMEU” in the title is a reference to an acronym for the Union, prior to a later amalgamation. The Agreement was not an agreement registered under the FWA. However, its industrial relations system heritage is obvious enough both in its title and in its terms. In my view, it is to be construed guided by the same principles which attend the construction of union rules.
The Agreement applies both to officials and officers. The former are the holders of an elected office, the latter are employees of the Union undertaking duty within the Branch. As the holder of an elected office, Mr Smyth was an “Official” in terms of the Agreement.
As noted, in his covering email, the District Secretary described the Agreement as a “contract of employment”. There is a certain looseness of understanding in characterising the holder of a fulltime elected office as an employee but nothing turns on that in these proceedings. At the very least, the Agreement was, in relation to Mr Smyth and with respect to his remuneration as holder of the office of President, the agreement contemplated by the Divisional Rules. As to the other provisions in the Agreement insofar as they are applicable to Mr Smyth, it may perhaps be that the Agreement exemplifies a practice of the kind to which Lord Wilberforce referred in Heatons Transport. Alternatively, those other provisions might be policies authorised by Rule 24A of the Rules. It is not necessary further to explore this subject, because each of the parties accepted that the terms of the Agreement bound both the Union and Mr Smyth.
Apart from remuneration, the Agreement made provision for usual hours of work, various types of leave, superannuation, a motor vehicle, a laptop computer and other office equipment, duties of confidentiality and, presently notably, the following in relation to the provision of a Union credit card (clause 6.3) and an overnight allowance (clause 6.4). These clauses provided:
6.3A Union corporate credit card will be provided by the District to each Official/Officer. The Official/Officer may charge all accommodation and associated expenses, incurred in discharging their duties as an Official/Officer, to a corporate credit card provided by the District or make arrangements for those expenses to be billed to the District. If the District provided corporate credit card is not used the Official/Officer must provide all receipts for the amounts they are claiming for reimbursement by the District. The Official/Officer shall not use a Union Corporate Credit Card for personal expenses not associated with their employment.
6.4Officials/Officers are entitled to a $75.00 allowance upon completion and approval of the relevant claim form, in accordance with the District policy when, in connection with their duties, they are required to stay overnight away from their place of residence. This allowance will be reviewed at the December Board of Management each year and increased if deemed necessary.
[Emphasis added]

The Agreement also detailed, by clause 16, how Union or Branch policies applied to officials and officers covered by it. Clause 16 stated:
16. Policies
16.1Policies and procedures that are applied to, or are intended to apply to Officials and Officers within the scope of this Agreement, which confer a benefit or right on Officials and Officers will form part of the terms and conditions of Officials and Officers under this Agreement.
Policies falling within the category described above shall be available to Officials and Officers via accessible hard copy or electronic form.
The Union shall consult with Officials and Officers about the introduction of any new policy or procedure that significantly affects Officials or Officers within the scope of the Agreement in relation to their duties and obligations.
Where the Union seeks to significantly alter, detract from, or remove a benefit, right or entitlement applying to an Official or Officer under a Union policy or procedure, the Official, Officer or their nominated representative may elect to have the matter dealt with under the disputes resolution procedure under this Agreement.
As can be seen, clause 16 of the Agreement incorporates by reference particular policies and procedures. Authorising, as it does, particular private expenditure via a union-issued credit card, it entails no strain of language to regard the Policy as one which, in terms of clause 16, confers a benefit or right. So construing clause 16 then presents a constructional difficulty in that, in providing for the issue of a union credit card, the last sentence of clause 6.3 contains the restriction that it is not to be used “for personal expenses not associated with their employment”. That is, on any view, be it the construction promoted by the General Manager or that promoted by Mr Smyth, inconsistent with the private usage exception found in the Policy. Were there any controversy about the applicability of the Policy to Mr Smyth, and there is not, it would therefore be necessary to determine which restriction was paramount. Were it necessary to resolve the issue, the answer, in my view, would be supplied by recognising that the authority for the Policy is found in the Rules (Rule 24A). It, too, confers a benefit or right in terms of private use of a union-issued credit card. Clause 16 of the Agreement envisages that such a policy is incorporated by reference. The purpose of clause 16 of the Agreement is beneficial. Being more benign, the terms of the Policy about credit card use have paramountcy to the extent of any inconsistency.
The conclusion which I have reached concerning the correct construction of the Policy is not wholly destructive of the General Manager’s case, but it does mean that that case was, in part, instituted and conducted on a false premise. It remains necessary to detail how, if at all, that false premise affects particular alleged contraventions.
The present focus on the Agreement makes it apt to make these observations about the Branch administration of union-issued credit cards, clause 6.4 of the Agreement and the overnight allowance for which that clause provided. Doing that also requires some making some contextual findings of fact.
It is convenient first to consider clause 6.4 of the Agreement and the overnight allowance. There is a related policy in respect of this overnight allowance which was approved by the Branch’s Board of Management in December 2011. That policy states:
When official union business finishes which allows travel back to place of residence or work accommodation before dark then members are to travel back and not claim another night’s accommodation, overnight allowance, RDO or wage payment.
The General Manager’s emphasis in submissions that the clause 6.4 allowance is an overnight allowance, with related entitlement based on an overnight stay, not on arrival home after dark, is undoubtedly correct. This is made explicit by the emphasised words in the text of clause 6.4, as quoted above.
Mr Smyth was resident in Mackay throughout the period covered by the alleged contraventions. So was his wife. They still are resident there. That is where is their family home is located.
Mr Smyth’s duties as President often required that he attend at various mine sites or associated towns throughout Central Queensland (for example, Moranbah, Dysart, Collinsville, Middlemount, and Blackwater) and thus be away from Mackay. Sometimes this was for issues related to enterprise bargaining, sometimes it was for issues relating to mine safety (including accidents) and other workplace health and safety issues, sometimes it was for wider industrial relations or representational issues, sometimes it was for Union, Branch or local Lodge governance issues, sometimes it was for Union, Branch or local Lodge social events, sometimes it was for an important organised labour observance such as May Day and sometimes it was for a combination of one or more of these issues. These absences from home were quite apart from those occasioned by duties that took him to Brisbane or interstate for one or more of these issues, as well as Branch and wider Union governance and industrial relations and representational issues. There was a Branch office in Mackay. That was Mr Smyth’s base for his duties. He did undertake some duties there, as did other officials or officers based there. But the point is that neither Mr Smyth nor other officials or officers based in Mackay were desk bound.
Mr Smyth’s journeys to various locales in Central Queensland were undertaken by road via his driving the diesel engine, motor vehicle provided to him by the Union. On the evidence, these journeys often entailed an early morning start from Mackay. They also often entailed a late return to his home in Mackay, sometimes after dark, depending on the time of year, visited location and duties which he undertook at that location. Sometimes, they necessitated an overnight stay at a locale away from home.
Mr Smyth gave, in evidence, estimates based on his lengthy experience of typical start and finish times and length of road journey for various locations. I thought his estimates were reliable, especially when considered in conjunction with the numerous Credit Card Usage Forms (CCU forms) and related receipts which were in evidence. The CCU forms and receipts were admissible in themselves as business records. The receipts often gave not just the date, item and amount of purchase but also the locale of purchase. Suffice it to say, several hours of driving to and fro over the course of a day was routine for Mr Smyth when his duties took him away from Mackay into Central Queensland.
Risk of driving fatigue from such journeys aside, I consider it is a sufficiently notorious fact, a matter of common knowledge in Queensland, and therefore also a subject for judicial notice even without formal proof (s 144(1)(a), Evidence Act), that driving in the early morning and also into the late afternoon to and from Mackay and inland Central Queensland locales, as with other journeys to and from rural Queensland, presents other risks. Driving into a rising or setting sun aside, there is a risk of encountering and colliding with kangaroos, other wildlife, livestock and birds. There is a risk encountering carrion of the same on the road. There is also a risk of encountering the debris of burst truck tyres from road trains or other heavy vehicles.
I have already made some statements about Mr Smyth, based on my observations of him during his oral evidence. It was obvious to me, not just by what he said but also his demeanour, that he cares and always has cared, deeply and sincerely, about the representation of members of the Branch and, especially, their welfare and safety. He routinely assumed the risks mentioned in order to undertake his duties. Doing so meant that, also routinely, he did not work the standard hours specified in the Agreement. It was obvious from his evidence he did this willingly, and, by the time of trial, had done so for many years.
Mr Smyth’s practice was to return home to Mackay if it was possible to complete his duties at a Central Queensland locale over the course of a day. He did this even if this entailed several hours driving and even if this meant he did not reach home until after dark.
In part, this was for personal, family reasons. But I also accept his evidence that there was another reason.
Mr Smyth stated in his oral evidence that his understanding of the policy relating to overnight allowance was that it was to encourage members, for safety reasons, not to travel after dark. Based on my observation of Mr Smyth and viewing his evidence in context, I do not accept the General Manager’s submission that this was a recent invention. I accept he always had this understanding. He was also aware that an overnight stay away entailed an accommodation expense for the Union and, strictly, an entitlement to a rostered day off. “So that’s obviously a cost incurred.”, as he put it.
While in part his reasons were, as mentioned, familial, they were also, notwithstanding the risks described and his understanding of the policy purpose, occasioned by a disposition on Mr Smyth’s part not to burden Union, and in particular Branch, funds if he could avoid that in relation to these Central Queensland road trips away from Mackay. In context, that is what I took from his soon after answer, “I didn’t even cast my mind to it at the relevant time.” Notwithstanding his understanding about the purpose of the overnight allowance policy, he followed the practice of driving home even if that entailed arriving after dark, because he also did not wish to burden Union, and in particular Branch funds, by taking up the alternative of a remote, overnight stay if he could avoid that. This is why he did not cast his mind to the alternative.
There was evidence from Mr Smyth about whether a journey back to Mackay from a particular locale would, in the ordinary course, entail an arrival after dark at a particular time of year. The end to which this was directed was to demonstrate that, had Mr Smyth chosen to have followed a different course of conduct, there were divers occasions when he could have claimed an overnight allowance. However, that he did not do this is not exculpatory in respect of any of the alleged contraventions. On that subject, it is a distraction. It is not therefore necessary to consider it in any further detail. That stated, accepting, as I do, that one of the reasons Mr Smyth returned home to Mackay, even if that entailed a long journey (by road or, for non-Central Queensland duties, air) was so as not to burden the Union, and especially the Branch, with the expense of an overnight allowance and accommodation expenses, this evidence does offer an insight into his character. The evidence was not probative of an unclaimed entitlement to the clause 6.4 allowance.
Completion, by the union-issued credit card holder concerned, of a CCU form was part and parcel of the Branch requirements in relation to the holding of such a card. As well as specifying the circumstances in which such a card might permissibly be used for private expenditure, the Policy also stated:
•All cardholders will be required to fill in a Corporate Card Usage Form. Details of each transaction are to be outlined on this claim form by the cardholder (supplies, nature of expenses, reason for expense), Corresponding invoices/receipts relating to each transaction are to be attached to this completed form and returned to the Qld District Office as soon as possible to be authorised by the District Secretary.
•All cardholders are required to obtain a tax receipt/invoice for each payment transaction that is incurred. This tax receipt/invoice is to be used for the claim forms (outlined above). If a valid receipt is not obtained & submitted with the claim form, the payment amount of the particular transaction may, at the Administration Committee's discretion, be deducted from the cardholder's next wages in the case of Elected Officials & Staff. Cardholder’s at Lodge level who do not have a valid receipt will have the amount deducted from the Lodge Account with explanation sent to the Lodge Executive.
There were many CCU forms completed by Mr Smyth in evidence. The form makes provision for the identification of discrete expenditures, including the separate identification of any private expenditures. Mr Smyth completed these CCU forms in his own handwriting as soon as he could after the use of the card, which was usually upon returning to the Mackay office. Thereafter, either he or an administrative assistant in the Mackay office, Ms Olivia Morgan on his behalf, dispatched them via PDF attachment to an email to the Branch’s Brisbane office, along with related receipts. Sometimes, alternatively, Mr Smyth handed these documents in at the Branch’s Brisbane office if that was convenient when his duties took him there. These forms are thus a near-contemporaneous record by him, informed, I find, by a then fresh recollection of the credit card expenditures concerned. Taken in conjunction with related receipts in evidence, I consider that the completed CCU forms offer generally reliable evidence of Mr Smyth’s credit card expenditure and the private components of that expenditure.
An examination of the CCU forms in evidence discloses that Mr Smyth, again and again, identified expenditures incurred when using his union-issued credit card (and retained related receipts), including even the most modest of what he regarded, according to his understanding of the Policy, as private expenditures. The latter feature is most evident in respect of CCU forms which record expenditures during Mr Smyth’s road trips to and from various Central Queensland locales. Such trips provided the most frequent occasion for his use of the credit card and related completing or making entries in the CCU forms. Considered as a whole and in conjunction with related receipts, the CCU forms disclose, in my view, a man who was meticulous in seeking to meet the Policy reporting requirements, including by identifying private expenditure, informed by his understanding of what the Policy permitted in that regard. Likewise so considered, I find that the expenditures and related reporting are the work of an honest, although not perfect, man. I give detail in respect of each of these findings below.
A notable feature of Mr Smyth’s completed CCU forms and related receipts is the frequency and location of expenditure in the purchase of diesel fuel. Mr Smyth expanded in his oral evidence, honestly and accurately in my view, on the location of particular service stations where fuel purchases occurred. This consumption of diesel fuel is a marker for just how much driving Mr Smyth was undertaking in the course of performing his duties as President.
It was put on behalf of the General Manager that Mr Smyth’s evidence about his credit card expenditures was a reconstruction. I rather thought Mr Smyth acknowledged in his oral evidence that, at least in part, there was an element of this. It seemed to me that, many years after the event, and in respect of many expenditures which, at the time incurred, he had no reason to think he would ever have later have occasion further to detail (beyond the CCU form detail), he was, at trial, trying to do his honest best to provide that detail, prompted by the contemporaneous (or near) entries he had made on the CCU forms and related receipts. I also formed the distinct impression, based on the way in which his pleaded defence evolved, that he had probably given the most attention to the subject of exactly for what reason particular credit card expenditures had been incurred quite close to the trial. Of course such attention should have informed the defence as originally pleaded but considering the evolved pleadings and evidence as a whole, I do not conclude that Mr Smyth was, in his oral evidence, just making up explanations as he went along. That finding recorded, and unsurprisingly, the most reliable evidence as to expenditures and related reasons is, as I have stated already, as found in the contemporaneous or near contemporaneous documents such as the CCU forms and related receipts.
Although I accept the General Manager’s submission that, where Mr Smyth has, on a CCU form, recorded that particular expenditure was “private”, it is more likely than not that it was of this character, I do not do so in an unqualified way. For one thing, that is because it was “private” according to his understanding of the private union-issued credit card expenditures which the Policy authorised. For another, and as I detail below in relation to two expenses incurred on Labour Day 2015 and others incurred in hosting informal working meal meetings with others in which he participated, Mr Smyth chose to mark those expenses as “private” even though, in part, and correctly characterised, they were work-related.
As mentioned, the Branch has a Brisbane office. That is the principal office of the Branch. It is at that office that the District Secretary is located.
I have already made some reference to the duties of the President under the Divisional Rules. It is as well, at this point, to set out in full the formal provision in the Divisional Rules as to the respective duties of the President, a Vice President and the District Secretary. Within rule 9(ii) of the Divisional Rules it is provided:
(a)       The President
The President shall preside at all meetings of the District Branch Board of Management or meetings called by the District Branch. The President shall act in conjunction with the Vice-Presidents and Secretary in transacting the general business of the District Branch and, in the absence of the Secretary, shall attend to the correspondence of the District Branch. The President shall assist the Secretary in the preparation of annual reports and accounts and arrange with the Secretary for the attendance of either at important meetings of the Lodges. The President shall act as advocate for the District Branch and ensure that the rules are carried out in the Lodges. The President shall receive for her/his services such remuneration as shall be agreed upon from time to time between her/himself and the District Branch Board of Management.
(b)      The Executive Vice-President
The Executive Vice-President shall act in conjunction with the President and Secretary in transacting the general business of the District Branch. The Executive Vice-President shall, in the absence of the President, perform the duties of the President, and on instruction of the President, deputise for the President. S/he shall receive for her/his services such remuneration as shall be agreed upon from time to time between s/he and the District Branch Board of Management.
(c)       The Vice-Presidents
The Vice-Presidents shall act in conjunction with the President, Executive Vice-President and Secretary in transacting the general business of the District Branch. The Vice-Presidents shall, in the absence of the President, and Executive Vice-President perform the duties of the President, and an instruction of the President, deputise for the President. They shall receive for their services such remuneration as shall be agreed upon from time to time between themselves and the District Branch Board of Management.
(d)      The Secretary
The Secretary’s duties shall be to keep separate accounts of all monies received or paid on account of every particular fund and to keep separate accounts of the expenses of management and of all contributions on account thereof; and with the assistance of the President and Executive Vice- President, prepare a yearly Balance Sheet of the same, submit it to the first Board of Management Meeting after the end of the financial year and forward a copy to each Lodge. The Secretary shall attend, and take minutes of the proceedings of all District Branch Meetings. S/he shall, with the President and Executive Vice-President, zealously attend to all correspondence, watch the interests of the District Branch and do all in her/his power to advance the members' interests generally.
S/he shall arrange with the President for attendance of either at important meetings of the various Lodges, and also be empowered with the concurrence of the President to call special Board of Management Meetings in all cases of emergency. The Secretary shall be responsible to the Board of Management and shall receive such remuneration as shall be agreed upon from time to time between her/himself and the District Board of Management.

One sees in these rules the formal provision for division of administrative and representational duties. On the evidence, this was followed in practice. Thus, Mr Smyth’s acceptance of his being the “public face” of the Branch was a manifestation of the President’s role under the Divisional Rules “as advocate for the District Branch”.
One also sees in these rules formal manifestation of occasion for the President to attend at Lodges. The various Lodges are grouped in numbered Divisions for Board of Management electoral purposes (see rule 8(i)(c), Divisional Rules). As already highlighted, an incidental feature of the latter provision is the revelation it offers as to the spread and location of these Lodges and, with that, the potentiality, realised in practice on the evidence, for the frequent undertaking of travel by the President.
It is also patent from the rules concerning the duties of these officials that it is the District Secretary, rather than the President, who has the primary administrative and financial accounting responsibilities within the Branch, with the role of the President and a Vice President being to assist the District Secretary in this regard. This is consistent with Mr Smyth’s evidence that it is the District Secretary who has the day-to-day administrative responsibility for the Branch, in the nature of a chief executive officer.
Although the principal office of the Branch is in Brisbane, the Branch has other offices. These are located in regional Queensland. I have already mentioned the Mackay office, where Mr Smyth is based. There are others at Blackwater, Dalby, Dysart, Moranbah and Rockhampton (according to the annotation on the foot of the document which records the Policy).
In addition to the duties already mentioned, the Divisional Rules also made the following provision in respect of the duties of the President of a “District Branch”:
Rule 11(vi)(f):
“The Trustees shall have power:
(1)To receive monies or other property paid, delivered or conveyed to them as Trustees of the District Branch and to expend monies without distinction between capital and income.
(2)To invest, gift, donate sell, exchange or otherwise dispose of investments or other property of the District Branch and to deal with the funds of the District Branch including purchase or otherwise acquiring of property out of the funds of the District Branch.
(3)To lend and advance money or give credit to any person or corporation; to guarantee, and give guarantees or indemnities for the payment of money or the performance of contracts or obligations by any person or corporation; to secure or undertake in any way the repayment of moneys lent or advance to or the liabilities incurred by any person or corporation: and otherwise to assist any person or corporation. …
(4)To borrow or raise or secure the payment of money and to secure the same or the repayment or performance of any debt, liability, contract, guarantee or other engagement incurred or to be entered into by the District Branch in any way, and to purchase, redeem or pay off any such securities.”
By reason of rule 11(vi)(a) and (c), the President was a trustee for the purposes of this rule. The power to make loans (rule 11(iii)) will be noted.
One sees in the provision for trustees in the Divisional Rules a legacy from earlier eras of trade union law, well before provision by statute, be that Federal or State, for registered industrial organisations and related provision for registration to confer separate legal personality. In earlier eras, absence of separate legal personality in respect of a trade union usually resulted in provision under the rules of an unincorporated trade union for property to be held by trustees.
It is not uncommon in industrial jurisdiction cases concerning registered industrial organisations to encounter rules which were once apt but which have been uncritically retained in registered industrial organisations for many years, even though applicable legislation has been much changed and though union amalgamations may have yielded in a Division or Branch what was once a separate registered industrial organisation whose eligibility rules covered particular callings. In this way, the rules of modern industrial organisations can resemble a patchwork quilt of the rules of an earlier era, amended ad hoc to accommodate some newly introduced requirement or development but without a related, comprehensive review of the whole. However this may be, neither party delved in submissions as to whether rule 11 could continue to have any relevance in relation to a Branch which had no legal personality separate from the Union itself. Instead, it was assumed that it could have application with the controversy being whether and to what extent it was applicable to the credit card expenditures in question. The approach of the parties seemed to be that the rule should be regarded as governing how funds of the Union consigned under the Rules and the Divisional Rules to the control of the Branch might be expended. I have approached the determination of whether alleged contraventions are proved on that basis. Further, and as I detail below, other rules are relevant in relation to expenditure of Branch (or Union) funds and to the making of loans.
In the day-to-day administration of the Branch, the District Secretary is supported by employed administrative staff. On and from early 2015, one such person was Ms Nicole Maree Boucher. Ms Boucher was the other person who gave oral evidence at the trial. Ms Boucher was called as a witness by the General Manager.
Ms Boucher was and is a chartered accountant and certified practising accountant (CPA), and an experienced one at that. Ms Boucher’s association with the Branch began in 2013 when the chartered accounting firm, Vincents, was engaged on behalf of the Branch by a then newly elected District Secretary (Mr Tim White) to conduct a review of, and report and make recommendations concerning, credit card usage, policies and administration within the Branch. For this purpose, staff from Vincents were seconded to the Branch. Ms Boucher, who was then working for Vincents, was one such staff member. When, later, the employed position of Finance Manager within the Branch became available, she applied for this position. The position was publicly advertised. Ms Boucher was the successful applicant. She resigned from Vincents to take up the position of Finance Manager. She held that position until 20 December 2017.
The adoption of the Policy by the Branch appears to have been a sequel to the review conducted by Vincents.
Another employee at the Branch’s Brisbane office, during the time of Ms Boucher’s tenure as Finance Manager, was the Office Manager, Ms Amanda Ross. Others based in the Brisbane office at the time were Mr Tim White, as District Secretary, Mr Mitch Hughes, as District Vice President, Mr Greg Dalliston, as a district executive member, two in-house, employed lawyers and a legal secretary/assistant (Ms Charmaine Roth), two membership officers, an administration officer and, for a time, a receptionist.
I find that Ms Boucher gave honest evidence. In making that finding, I have expressly taken into account that Ms Boucher was the recipient of formal warning letters in 2017 concerning her standard of performance as Finance Manager, one of which was authored by Mr Smyth in his capacity as President. Looking at those warning letters in the context of the whole of the evidence as it related to Ms Boucher and her many duties, which extended well beyond monitoring and recording credit card usage in respect of the many cards on issue and any related loans in respect of any private expenditures on such cards, I formed the distinct impression not only that the duties consigned to Ms Boucher were more than might readily be undertaken by one person, but also that some of them were not ideal uses of a professionally qualified person’s time. As to the latter, I refer, for example, to travelling to and from the Brisbane office to various metropolitan Brisbane bank branches to undertake Branch banking (see the enclosure to the email of 14 December 2016 from Ms Ross to Mr Smyth, Mr Whyte and Mr Hughes in relation to Ms Boucher’s duties and performance). In fairness to the Branch, that seems, in time, to have been understood. It may also be, with respect, that Ms Boucher’s expectation, based on her prior role as an external consultant, as to the burdens of being Finance Manager, proved an underestimation in practice. In the email to which I have just referred, Ms Ross states:
Nicole made comments when she first started that this was a one person job even going to the point of saying it was a part time job. This statement was clearly not correct as she is struggling and cannot get to jobs in a timely manner needs assistance to get herself better organised.
It is also necessary to record that the Branch’s 2016 accounts were qualified by the auditor in relation to substantiation of union-issued credit expenditure overall. The Branch conducted an inquiry on the subject of such expenditure in 2017, to which I refer further below.
This is most certainly not a case about whether and to what extent, if at all, Ms Boucher did or did not satisfactorily perform her duties when Finance Manager. I have mentioned these matters to make overt that I have taken them into account in making my finding as to Ms Boucher’s honesty in giving her evidence. They are also relevant in relation to Mr Smyth’s acquittal of outstanding loan account balances from time to time and to whether amounts should have been posted to his loan account.
Upon her receipt, either by email or personal delivery, of completed CCU forms and related receipts, Ms Boucher’s practice was to endeavour, transaction by transaction, to reconcile these with relevant credit card statements, as provided to the Branch by the Commonwealth Bank. If insufficient information had been provided by the particular credit card holder in the CCU form to permit this reconciliation, it was Ms Boucher’s role to seek further information from that cardholder. It was likewise her duty to follow up a cardholder if, on checking transactions in a credit card statement, it became apparent that the cardholder had not submitted either or each of a related, completed CCU form and a related receipt. Sometimes therefore, this resulted in her revisiting her initial reconciliation. Ms Boucher also frankly accepted in her oral evidence that there were occasions, and not just in relation to credit card expenditures by Mr Smyth, when she forgot to undertake the reconciliation process described.
Ms Boucher confirmed, according to her understanding, what a reading of the Policy would suggest, which was that there was no fixed time within which a CCU form had to be completed and submitted by the cardholder to the Branch office in Brisbane. What the Policy also stated was, “The personal expenditure component is to be deducted from a claim sheet or deducted from wages within the normal billing period for the Card. Corresponding invoices/receipts relating to each transaction are to be attached to this completed form and returned to the Qld District Office as soon as possible to be authorised by the District Secretary.”
As became apparent from Ms Boucher’s evidence, there was a systemic difficulty in any compliance with this aspect of the Policy, either by the Branch or, materially, Mr Smyth. The Branch’s normal billing period in respect of the credit card facility with the Commonwealth Bank was monthly, closing towards the end of the month. The Branch had a standing arrangement with the Commonwealth Bank whereby, on the last day of a given normal billing period, the Branch’s then overall debit balance in respect of total issued credit card usage was cleared in full by the Bank via an automatic debit on an account maintained with that bank by the Branch. However, the Branch, and thus Ms Boucher, did not receive from the Bank the statements with respect to that month’s usage of the issued credit cards until some few days after the end of the billing period and thus when this clearing debit had occurred. Only then could any process of reconciliation between statement entries and declared private credit card usage by given individuals occur. Part of that process would entail reallocating particular debits to particular cardholders on the basis of declared private expenditure amounts. Further, the making of deductions from claims or, as the case may be, wages could only occur upon the receipt of CCU forms containing such declarations and the actioning of the entries on those forms.
There was no practice in place within the Branch whereby an extract from the credit card statement provided by the Commonwealth Bank to the Branch containing entries relevant to a particular individual’s union-issued credit card was provided to that individual. Mr Smyth’s evidence, which I accept and find accordingly, was that he was never provided with a copy of any credit card statement by the Branch and did not know what the closing date was in respect of a given month for the union-issued credit card.
Ms Boucher also described in evidence the practice followed within the Branch in relation to the claiming of the overnight allowance of $75.00. This allowance was claimed in arrears by those officials or officers eligible. The claim was made via a claim form separate from a CCU form. These overnight allowance claim forms were also lodged separately from CCU forms. In the ordinary course, payment was then made to the officer or official concerned in the pay period next following approval of the claim. A variation of that practice, where there existed a loan account as between the Branch and an official or officer, was to credit that person’s loan account with the amount of the overnight allowance. I describe that practice in greater detail below.
Some overnight allowance claims were made to, and paid by, the Division, rather than the Branch, if the occasion for the claim concerned union business at Division, rather than Branch, level. Mr Smyth’s overnight allowance claim form offers an example of what one might term a “hybrid” claim, in part claiming overnight allowance in respect of business at Division level, in part claiming overnight allowance in respect of Branch level business.
Antedating Ms Boucher’s employment by the Branch but continuing throughout it, there existed, as between the Branch and Mr Smyth, a loan account. The existence of such an account was approved by the Branch’s Board of Management. Such an account was not unique to Mr Smyth. The existence of such loans and then related indebtedness was declared in the formal accounts of the Branch. It was also recorded in a MYOB software-based accounting record maintained by the Branch in the Brisbane office. The MYOB accounting record also included a payroll record in respect of Branch officials, employed officers and other employees. The MYOB accounting record was a comprehensive record of the financial transactions of the Branch.
Files created by the Branch’s MYOB accounting record could be loaded into the account which the Branch maintained with the Commonwealth Bank. In this fashion, for example, the Bank received instructions as to how much to credit to Branch officials, employed officers and other employees in respect of weekly remuneration.
A statement of this loan account (Document C1.35), extracted from this MYOB record, was in evidence. Within the District Branch office, and again during the period of Ms Boucher’s employment, only two persons had access to that MYOB record, Ms Boucher and Ms Ross.
The loan account in respect of Mr Smyth was what one might term a running balance account. The precise terms of his and the other loan accounts were left to inference. Inferentially, the terms were such that union-issued credit card expenditures identified by Mr Smyth as private on the CCU forms he completed, according to his understanding of the Policy (or a disposition in any event to refund the amount of the expenditure to the Branch), and submitted were progressively debited to this loan account, via entries made by Ms Boucher. Again inferentially, the loan balance was repayable on demand. Further, even though there were, for reasons given already, practical impediments to the refunding of monthly credit card debits before the end of a statement closing period, there appears to have been an expectation, which one might term “custom and practice” that individual loan account debits would be repaid within a reasonable time. No interest was payable in respect of any debit balance from time to time. To achieve this repayment and pre-dating the start of Ms Boucher’s employment, Mr Smyth had in place an arrangement with the Branch whereby the sum of $100.00 was automatically debited from his weekly pay and credited to this loan account. This is confirmed by entries in the extracted record in evidence. Sometimes, too, Mr Smyth directed that a claimed allowance not be paid to him but rather credited to his loan account.
These regular, weekly credits from Mr Smyth’s weekly pay to his loan account ceased on 9 June 2015. That was not of Mr Smyth’s doing. In an email exchange with Ms Boucher on 10 February 2016 (Document C1.43) and having been provided with a copy of a MYOB produced statement of his then loan account position (probably, I find, Document C1.35), Mr Smyth queried Ms Boucher about a then debit balance of $427.66 and why there were no continuing $100.00 credits to his loan account balance shown on the statement.
It is inherently likely from this contemporaneous email exchange, and I find, that Mr Smyth had no idea before this exchange that his standing arrangement for the weekly crediting of his loan account by a debit from his pay had ceased. That is not to say that, had he had occasion to look, his monthly pay advice would not have alerted him to the cessation. But he had no occasion to look. This cessation was an internal process within the Brisbane office of the Branch. Given her then role and access to the MYOB based accounting package, it is more likely than not, and I find, that Ms Boucher implemented the cessation. With the passage of time, she was unable to offer an explanation in her evidence as to why this occurred. One effect of it, however, was that it resulted in the debit balance to Mr Smyth’s loan account, as at 10 February 2016, of $427.66, in contrast to his loan account being in credit at that point, had the regular credits from his weekly pay continued.
Apparent from an annotation in the financial accounts of the Union (Document C1.58) was that the Union, and thus the Branch, had in place, at all times material to this proceeding, the following policy in relation to loans to members, “The CFMEU mitigates credit risk on loans to members and associates by loaning small amounts only.” Ms Boucher, whose qualifications and experience made her competent to express an opinion on the subject, acknowledged in her evidence that such a policy in respect of loans to members was indeed consistent with accounting practice as to credit risk mitigation such that a lender might not need to take security for such loans:
And that might be a mitigation of credit risk because the amount is small, therefore, one might not need security, for example. That would be consistent with accounting practice; is that right?---Yes, that’s correct.
The approved, standing loan account arrangement which was in place as between the Branch and Mr Smyth, in conjunction with the arrangement between the Branch and the Commonwealth Bank in relation to monthly clearance in full of total credit card balances by the Branch, necessarily meant that, whatever the individual debit balance arising from Mr Smyth’s use (including private use) of his union-issued credit card was in a given month, it was cleared in full each month if need be, in relation to a debt flowing from Mr Smyth’s use of his union-issued credit card, by funds borrowed from the Branch by him. That was so even though he never got copies of related credit card statements or knew the precise monthly closing date for the union-issued credit card.

It was also put for the General Manager that, “contraventions of ss 285 – 287 have been established in other cases despite the conduct giving rise to the breach having occurred more than four years prior to those proceedings being issued or findings being made”. So much may be accepted. But all that means is that, unlike in the present case, an issue concerning the meaning and effect of s 320 in the circumstances of those cases was not raised.
In the Full Court, there was reference, indeed repeated reference, by Besanko J (with whom Allsop CJ and White J agreed) to s 320 of the FWRO Act in Registered Organisations Commissioner v Australian Workers’ Union (2020) 281 FCR 518 (ROC v AWU), but in the very particular context, quite different from the present case, of a controversy concerning whether, in terms of s 331(2) of the FWRO Act, the Commissioner had reasonable cause to conduct an investigation. In addressing that subject, Besanko J, at [149], observed:
[It] is difficult, if not impossible, to see how a mere breach of a rule which imposes an obligation on a Union or a branch of a Union could give rise to a contravention by an officer of an obligation he or she owes to the organisation. Even the obligation of care and diligence in s 285(1) is very likely to involve something more than a mere breach of the Rules, such as a fact indicating relevant responsibility on an individual for the payments made or oversight responsibility for such payments. The problem becomes more acute for the AWU’s argument as one moves to s 286(1) (ie, good faith, best interests of the organisation and proper purpose) and then s 287(1) (ie, gaining an advantage or causing a detriment to the organisation). It is, for example, very difficult to see how a contravention of s 287(1) could be based on a breach of the Rules alone or even substantially based on a breach of the Rules. The difficulty is not overcome by the fact that the AWU did not contend that a breach of the Rules was not capable of founding a ground of contravention of s 287(1), as the primary judge put the matter. With respect, that is not really the issue. The issue is what do these circumstances suggest about whether there were matters grounding Mr Enright’s suspicion beyond breaches of the Rules? In my opinion, they clearly suggest that there were such other matters. Furthermore, as the Commissioner put it, in the ordinary case an investigation about compliance with ss 285(1), 286(1) and 287(1) “would be heavily focussed on ‘why’ the donations were made” and that is the “stuff” of the officers’ duties in those provisions.
The General Manager sought to make something of these observations and a related proposition that the case did not depend on whether or not Mr Smyth had complied with the Rules or the Divisional Rules. However, this reliance was misplaced. In these observations, Besanko J was developing a converse proposition, which was that it is difficult to see how a mere breach of a rule could give rise to a contravention of s 285, s 286 or s 287 of the FWRO Act. With this, I respectfully agree. Such a breach may, however, be a step along the way to proving such a contravention. The converse, however, that a contravention of these provisions may be found in conduct that is authorised by such rules does not follow. Nor does it follow that if, on its true meaning, s 320 of the FWRO Act requires that an act be taken to have been authorised by such rules that there remains a contravention.
Recently, in Jolly v Sharma [2024] FCA 171 (Jolly v Sharma), at [127], Snaden J described s 320 of the FWRO Act as a limitation provision. However, His Honour’s immediate elaboration of this description indicates that he viewed the provision as more than just a limitation on the commencement of proceedings:
It operates, after the expiry of the nominated period, so as to put relevantly non‑compliant conduct beyond the reach of correction.
Although I respectfully agree with that elaboration, it leaves unanswered how and why, according to its terms, s 320 puts non-compliant conduct beyond the reach of correction.
This answer was supplied, in my view, by statements made by Sweeney and Evatt JJ concerning the meaning and effect of s 171F of the Conciliation and Arbitration Act in their joint judgment in Egan v Harradine (1975) 25 FLR 336, at 380:
The purpose of the section is quite clearly to prevent the challenge of acts as defined after the lapse of a period of four years. The language used in the section is that the act, etc., shall for all purposes be deemed to have been done in compliance with the rules of the organization or branch. …
Section 171F goes beyond the mere question of validity of the particular act and requires that the act shall be deemed to have been done in compliance with the rules of the organization or branch. The effect of this is to go beyond the mere validity of a particular act. As we said in the ruling, the section adjudges or determines conclusively that the act was done in compliance with the rules. Its effect is that if in fact there was not compliance with the rules the section notionally alters those facts (d. Hunter Douglas Australia Pty. Ltd. v. Perma Blinds (62)).
In considering its application one must look at the rules of the organization or branch and determine from it what was required to be done to be in compliance with them for the validation of the particular act. Whatever was required by the rules for the act to be valid is then conclusively adjudged to have been done.
The effect of the section is to require the act to be deemed to have been done in compliance with rules. This involves an adjudgment that at that time there was compliance and there is a presumption of continuance which, however, in our view is rebuttable.
If there were no rules of a branch or an organization, as the case may be, then the section cannot operate. It cannot both notionally alter a set of facts so that those facts correspond with what was required by rules to be done until there are such rules. The notional alteration of fact A to fact B (of what was done to what the rules require to be done) cannot take place if there is no fact B.
The qualifying condition, identified by Sweeney and Evatt JJ in this passage, is an important one and remains as a feature of s 320 of the FWRO Act. That qualifying condition means that Mr Smyth’s submission that, “Taking the last of the events that are the subject of the proceedings as being the last day of the 2015/16 financial year—30 June 2016—Mr Smyth’s impugned conduct will be deemed to have occurred in compliance with the rules by 30 June 2020” cannot be accepted in an unqualified way. If there were no rules of the Union applicable to Mr Smyth’s conduct, s 320 of the FWRO Act could not operate.
Within the Divisional Rules, rule 9(vi)(d) confers on the District Branch Executive power, “To incur all necessary accounts and expenditure for the proper upkeep of the District Branch and to pay all sums so incurred.” The District Branch Executive is also, by Divisional Rule 11(ii), and subject to the Board of Management, given control of the property and funds of the Branch – “Subject to the control of the District Branch Board of Management and Convention the property and funds of the District Branch shall be under the control of the District Branch Executive.”
In this case, the Board of Management has, via the Policy, exercised control over such funds as are expended via a union-issued credit card by requiring that the expenditure be in accordance with the Policy.
Insofar as expenditure in this case concerns funds (Mrs Smyth’s airfare to the USA) consigned, not to the control of the District Branch, but rather to those under the control of the Division, that control is vested by the Divisional Rules in the Central Executive Council (rule 11(ii)), which enjoys a similar power to the District Branch in respect of the making of loans (rule 11(iii)(c)).
The Divisional Rules do grant power to make loans but subject to particular conditions as set out in rule 11(iii)(c):
Loans, grants and donations of any amount exceeding $1,000 shall not be made by the District Branch unless the District Branch Board of Management has satisfied itself that the making of the loan, grant or donation is in accordance with the Rules of the District Branch and that, in relation to a loan, that in the circumstances, the security proposed to be given for the repayment of the loan is adequate and the proposed arrangements for the repayment of the loan are satisfactory. Loans, grants and donations of an amount exceeding $1,000 shall not be made unless approved by the Board of Management.
As mentioned above, the General Manager’s case does not entail a challenge to the approval of the loan account facility extended to Mr Smyth.
With regard to the operation of s 320 of the FWRO Act, Mr Smyth put his reference to the Rules and the Divisional Rules at a rather general level of abstraction, “on its proper construction, s 320 is applicable to any instance of exercise of power conferred by the rules and operates effectively, as a time bar against any person who seeks to impugn such an exercise of power”. As can be seen, that submission anticipates statements made by Snaden J in Jolly v Sharma. That aside, the generality of the reference to Rules drew the ire of the General Manager. But the Rules and the Divisional Rules do, as indicated, concern themselves with expenditures of funds under the control of either the Division itself or the District Branch.
An expenditure which is not authorised by the Policy is, necessarily, an expenditure which is contrary to the Divisional Rules, because it has not been authorised by the Board of Management. However, on the face of the text of s 320 of the FWRO Act, and there being a rule which could authorise the expenditure, the expenditure concerned is taken to be authorised by those rules after the expiry of four years from the relevant act. That relevant act is the incurring of the expenditure concerned.
The same follows in relation to an expenditure which could be authorised by the Central Executive Council.
Further, in relation to additions to the loan account, a power to make loans is, as indicated, granted by the Divisional Rules. Insofar as making loans includes an addition to an existing loan facility, that power includes a power to increase a loan. Once again, four years after the relevant act, which is the making of the loan or addition to the loan account, the loan is taken by s 320 of the FWRO Act to be authorised by the Rules.
What follows from this, in my view, is that I am obliged by s 320(1) of the FWRO Act to conclude that each of the alleged expenditures was authorised by the Rules or the Divisional Rules and, further, that I am similarly so obliged to conclude that each addition to Mr Smyth’s approved loan facility was also so authorised. That obligation existed at the time when the proceedings were instituted on 30 November 2021, because more than four years had by then elapsed from the last of the acts alleged.
It is put that a contravention of ss 285, 286 and 287 of the FWRO Act may nonetheless be found. The foundation of the submission is that these provisions create statutory duties, whereas any deeming effected by s 320 of that Act concerns only compliance with the rules of a registered organisation. Where I have found contraventions, a conflict between duty and interest is evident in incurring an unauthorised expense or addition to a loan account or in obtaining a benefit, namely payment of Mr Smyth’s wife’s USA airfare in relation to which, although the booking was authorised by custom and practice, which ought promptly to have been refunded. It seems to me the difficulty with this is supplied by an observation made in the passage quoted from Egan v Harradine, “Whatever was required by the rules for the act to be valid is then conclusively adjudged to have been done.” The norms of conduct with which ss 285, 286 and 287 of the FWRO Act engage, at least in the circumstances of this case, inevitably engage with what was or was not permissible under the Rules (and the Divisional Rules).
It was also put for the General Manager in relation to s 320 that it would be anomalous if a mere effluxion of a short period of time precluded a contravention being found, in circumstances where ratification by the membership pursuant to s 289 of the FWRO Act of conduct which amounted to a contravention of s 285, s 286 or s 287 could not. Perhaps that is so. Further, it was always open to the General Manager (or the Commissioner beforehand) to apply for an order under s 321 of the FWRO Act to prevent s 320 applying according to its terms. Yet further, it may perhaps be that there has been an uncritical copying of Corporations Act provisions into the FWRO Act without appreciating the presence of s 320 and the jurisprudence concerning its predecessor. It may seem odd that conduct which was once a contravention of ss 285, 286 or 287 of the FWRO Act can be rendered no longer so by the mere effluxion of time. But the considerations may not be all one way in terms of drawing a line in the sand in relation to long ago conduct. The difficulties of recollection and proofs in this case demonstrate that. However all this may be, if s 320 has the meaning and effect it appears to have on its face, then that the conduct might alternatively have been ratified by members is nothing to the point. Neither is it anything to the point that there may be conduct which once might have been seen to be a contravention of s 285, s 286 or s 287 of the FWRO Act occurred. It is the constitutional function of the judicial branch to give effect to the text of an Act validly made by parliament and to leave to parliament the correction of any perceived anomaly: Gauntlett v Repatriation Commission (1991) 32 FCR 73, at 77, and Ralph v Repatriation Commission (2016) 248 FCR 438, at [56].
My conclusion concerning the meaning and effect of s 320 of the FWRO Act means that the proceedings must be dismissed.
Relief from liability?
In the event that my conclusion as to the meaning and effect of s 320 of the FWRO Act is in error, it is necessary to deal with Mr Smyth’s alternative submission that he ought, pursuant to s 315 of the FWRO Act, be relieved wholly or in part from liability in respect of such contraventions as I have found he committed.
I have already referred above to authorities concerning an analogue provision in the Corporations Act. As is revealed by ASIC v Australian Property Custodian, at [68], three issues are usually raised in relation to whether there should be any such statutory relief in a Corporations Act case:
(a)whether the applicant for relief has acted honestly;
(b)whether having regard to all the circumstances the applicant ought fairly to be excused; and
(c)whether the applicant should be relieved from liability wholly or in part, and if partly, to what extent.
There is nothing in s 315 of the FWRO Act which would suggest that it gives rise to any different issues. However, like ss 285, 286 and 287 of the FWRO Act, s 315 falls for application in circumstances different to those of its Corporations Act analogue.
In Daniels v Anderson (1995) 37 NSWLR 438, at 524, Clarke and Sheller JJA stated, in relation to that Corporations Act analogue:
The purpose of this section is to excuse company officers from liability in situations where it would be unjust and oppressive not to do so, recognising that such officers are business men and women who act in an environment involving risk and commercial decision making.
At a more general level of abstraction, in Edwards v Attorney-General (NSW) (2004) 60 NSWLR 667, Young CJ in Eq observed, at [76], of the Corporations Act and its predecessor that, “the purpose … was for permitting the economy to be advantaged by such entrepreneurial ventures with limited liability and to regulate the rights of members inter se, the rights between and creditors of corporations”.
These statements serve to emphasise how different the context is in which s 315 of the FWRO Act falls for application. That context includes, but is not exhausted by, a purpose which I identified at the outset of these reasons in relation to trade union legislation. One purpose is to render a combination of workers who have objects which might otherwise be an unlawful restraint of trade lawful. Other purposes may readily be discerned from the statements in s 5 of the FWRO Act concerning parliament’s intentions in enacting the Act.
Registered organisations can only act via their officials and other officers. Section 315 of the FWRO Act thus requires a balance to be struck between facilitation of the achievement of the statutory purposes mentioned and holding delinquent officials or officers liable for conduct which contravenes s 285, s 286 or s 287 of that Act. As with the Corporations Act analogue, s 315 does not authorise the Court to set aside lightly such contravening conduct: Re Wave Capital Ltd (2003) 47 ACSR 418, at [29].
I have already identified under the heading “Expenditures for Union committee or other working meetings with others” a group of expenditures in respect of which, even if I were wrong in concluding entailed no contravention, I would relieve Mr Smyth from liability in respect of a contravention of ss 285, 286 and 287 of the FWRO Act. Each of these expenditures was honestly incurred. Each, even if wrong headed in its incurring, was directed solely to the furtherance of the interests of members of the Union and its objects. Further, although it is a distinction without a difference, each was directed to facilitating the operation of the workplace relations system (s 5(5), FWRO Act). Informal sharing of knowledge and experience about industrial relations and workplace health and safety issues is a key element of this facilitation. Either or each of these qualities can be seen to have motivated the incurring of these expenses. That being so, if there were any contravention, Mr Smyth ought wholly fairly to be excused (with this extending to each and any contravention arising from a related debit to his loan account).
Beyond this are cases where Mr Smyth could have claimed a meal or overnight allowance but did not, instead choosing just to incur a meal expense via the use of his union-issued credit card. Again, each such use was honest. In some cases, as with minor expenses incurred on long drives to or from representational duties remote from his home base of Mackay, whether or not the expenditure fell within or outside the Policy turned on nothing more than whether he additionally purchased, at the same time, fuel for his work vehicle. The work-related end to which such a journey or other presence away from his home base differed not at all in such cases. I regard items 4, 11, 12, 22, 23, 30, 59 and 74 as falling within this category (as also do the related debits to his loan account). It seems to me that it would put unfairly put form over substance not to relieve Mr Smyth from liability in respect of these expenditures and related debits to his loan account.
I do not see that the circumstances of any other expenditures or any related loan account debits warrant relief from liability pursuant to s 315 of the FWRO Act.
Outcome
For the above reasons, the proceedings must be dismissed.

I certify that the preceding three hundred and eighty-five (385) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
Associate:
Dated: 28 March 2024
ANNEXURE A

Item Description

1.
05/07/15

BP Racecourse, Mackay expenses

Coke 250ml Zero ($2.00);

Coke 600ml Mount Franklin ($3.40);

Nestle Milkybar K/Size ($3.20);

Twisties Cheese 90g ($3.40)

$12

2.
06/07/15

Crusty’s Mackay Not itemised

$10.10

3.
17/07/15

Meriton Brisbane Not itemised

$20.30

4.
18/07/15

The Hub’s Wok, Fortitude Valley

Not itemised

$17.40

5.
24/07/15

Shell Oil Mammoth Lakes

6.672G (fuel); 2

Gift; tax

$45.87

6.
30/07/15

Mirage Hotel Starbucks Las Vegas

1 Grande Caffe L ($5.05); 1

LemonPound Bread ($4.00); tax ($0.73)

$13.52

7.
04/08/15

Caltex Woolworths Mackay Nth

Mt Franklin Stllwtr 600M ($3.60); Red

Bull Sugrfree 250ML

$7.55

8.
27/08/15

Dysart Truckstop Dysart

Red Bull 250ml S/Free ($3.70)

$3.70

9.
19/09/15

Choice Banana Truckstop, Banana

Coke 600ML Mount Franklin ($3.40);

Premade Sandwiches ($5.95)

$9.35

10.
19/09/15

Caltex Star Mart Paget City Gate, Mackay

Mt Franklin Stllwtr 600M ($3.00);

Red Bull Sugrfree 250ML ($4.00)

$7.00

11.
20/09/15

BP Moura

Partly illegible receipt

$24.98

12.
27/09/15

Bruce Highway Bloomsbury Rural

Assorted s/wiches ($4.90);

Corn Jacks ($2.60);

Diet Coke 390ML ($2.95);

Pop’Em Chicken Cup ($4.95)

$15.30

13.
27/09/15

BP Home Hill

Red Bull 250ML Sugarfee ($3.99);

600ML Cool Ridge Spring Wtr ($5.90)

$9.89

14.
28/09/15

Caltex Middlemount Roadhouse

Sandwiches Assorted each ($6.99);

Red Bull Sugar Free 250ML ($4.99);

(Mt Frankl Stil Wate1.5L ($5.99)

$17.97

15.
28/09/15

Woolworths Caltex Blackwater

Red Bull Energy Drink S/Free 250ML ($3.99);

Mars M&M Crispy ($5.79)

$9.78

16
10/10/2015

Caltex Woolworths Mackay Nth

Mercury Newspaper

$1.70

17.
19/10/2015

Queensland Transport Mackay

Drivers licence renewal

$160.03

18.
24/10/2015

Stellarossa Mackay Parkside

Pepsi Max 300ml x 2 ($7.80); Trio of Sliders w/chips ($15.90);

Chilli Salt Squid ($11.90);

Chicken Burger w/chips ($16.90);

Frappes ($5.90)

$58.40

19.
26/10/2015

Grab A Kebab Mackay

Not itemised

$15.00

20.
29/10/2015

Woolworths Caltex Blackwater

Mount Franklin x 2 ($6.60);

drink - illegible ($4.50);

item - illegible ($5.10)

$12.90

21.
01/11/15

Angelos on the Marina

Muggachino Skim Milk ($5.50);

English Breakfas ($4.50);

French Toast x 3 ($16.90 * 3);

Hash Cakes ($4.00);

Vanilla Milkshak ($7.50);

English Breakfas ($4.50)

$93.60

22.
10/11/2015

Nick’s Seafood Bar & Restaurant, Sydney

Not itemised

$101.50

23.
22/11/2015

Nothinfancy, Collinsville

Not itemised

$56.00

24.
23/11/2015

Dysart Truck Stop (Caltex), Dysart

Mt Franklin 1.5lt ($5.95);

Red Bull 250ml S/Free ($3.70);

Cad Cherry Ripe King Size ($4.10)

$13.75

25.
30/11/2015

Café Mondial, Albert Street, Brisbane

Apple Juice ($4.50);

2 Btl Diet Coke ($9.40);

1 Coke ($3.95);

1 Linguini Carbonara ($23.95);

1 Sizzling Fajitas ($29.95);

1 Fettuccine Marinara

$97.65

26.
04/12/2015

Oaks Casino Towers Brisbane

Accommodation upgrade

$140.05

27.
06/12/2015

Hotel Settlers, Biloela

HS - Pork Rib on th* and mash

$33.95

28.
07/12/2015

Woolworths Caltex, Gracemere

Coca Cola Drink Diet Pet 600ML ($4.50);

Mrs Macs Pie Traditional Beef 200g ($3.25);

Red Bull Spec Offer ($2.50)

$5.25

29.
12/12/2015

McDonalds Mackay

1 tall cappuccino

$5.10

30.
12/12/2015

Gloria Jeans Mackay

Not itemised

$4.75

31
12/12/15

United Moranbah

Fresh sandwiches ($5.95);

Coke Diet 375ml can ($2.80);

Mt Franklin Lspk Br 450 ($3.50);

Nestle Milky Bar 75g ($3.30)

$15.55

32.
19/12/2015

Caltex Woolworths Mackay Nth

Diet Coke 600ML ($4.95);

4n20 pie chky beef 200g ($4.95)

$9.90

33.
20/12/2015

Woolworths North Mackay

Mighty soft bread white sandwich 700g ($3.39);

Coca Cola Diet Coke 30 x 375ML ($16.80)

$20.19

34.
23/12/2015

BP Racecourse, Mackay

Allens freckle 200gm ($5.50);

CCA Mount Franklin ($3.50);

Go Nat Macadamia ($2.95)

$11.95

35
26/12/2015

United Cannondale

Partly illegible receipt

$18.20

36.
07/01/2016

Oasis Fuel North Mackay (Puma)

Partly illegible receipt

$9.20

37.
09/01/2016

Pig N Whistle Queen St, Brisbane

Pig N Whistle Queen St, Brisbane

$30.95

38.
11/01/2016

McDonalds Mackay North

1 Med Classic angus, 1 med fries, 1 std cappuccino, 1 skim milk ($12.60);

1 classic angus ($7.40)

$20.00

39.
12/01/2016

Gloria Jeans Mackay (Mount Pleasant)

Not itemized

$10.05

40.
16/01/2016

Bunnings Mackay North

Line Trimmer Accessory Ryobi Bump Knob Curve Shft LTA- DD/A ($10.96);

Shovel Saxon Timber L/Handle SQ HTH S519-7L ($14.98)

$25.94

41.
20/01/2016

Coles Express (Eureka Operations), Mackay North

Coles Choc Coat Sui t ($2.20);

Daily Mercury Wednes ($1.30)

$3.50

42.
24/01/2016

The Hub’s Wok Not itemised

$52.80

43.
25/01/2016

Mantra on Queen Not itemised

$95.50

44.
26/01/2016

Emirates Leisure Retail, Eagle Farm (Glasshouse Bar, Brisbane Airport)

2 Toast + Avocado+ Feta + Tomato ($28.00);

1 Cappuccino ($4.90);

1 Juice Orange ($4.00)

$18.00

45.
27/01/2016

Caltex Nebo, Nebo Items obscured

$23.05

46.
28/01/2016

Blackwater Properties – Dinner

Several items obscured –

Heineken ($8.00);

Corona ($8.00);

St Date ($10.00);

Apple ($10.00);

Pfruit Cke ($10.00);

Pfruit Cake ($10.00);

Cappuccino ($3.50);

Mug

($1.00);

Cafo Latte ($3.50);

Mug

($1.00)

$50.75

47.
22/02/2016

Brisbane Marriott Hotel

3 * Mug of Coffee (3 * $6.40);

1 * Mug of Coffee with vanilla ($7.15)

$26.90

48.
23/02/2016

Izoo Espresso, Brisbane

1 Cappuccino ($4.00);

1 Flat white ($4.00);

1 Tea ($3.50)

$11.50

49.
27/02/2016

Coral Sea Resort, Mini bar

Mini bar water ($3.50)

$3.50

50
13/03/2016

Travelodge Rockhampton

Dinner, Room Serv, Check No. 3444 ($74.50);

In Room Service Movie Deal – Channel ($24.95);

Restaurant 1 - Food - Breakfast ($13.50)

$112.93

51.
20/03/2016

Oasis Fuel (Puma Andergrove), Andergrove (North Mackay)

Mt Franklin/Pump * 2 ($6.50)

$6.50

52.
23/03/2016

United Moranbah

Cadbury Turkish Delight Twin 76g ($6.60);

Red Bull Can S/Free 250ml ($4.20)

$10.80

53.
27/03/2016

Care Park, Airlie Beach (not Melbourne, as put by the General Manager)

Parking 2.23 to 4.23pm on 27/3/16

$4.80

54.
04/04/2016

Caltex Woolworths Mackay North

Mt Franklin Stillwater 600ml ($3.60);

Cad Turkish Delight ($3.25)

$6.85

55.
05/04/2016

Gilhooleys, Brisbane

Not itemised

$40.90

56.
07/04/2016

7 Eleven, Brisbane

1 Mt Frank St 1.5L EA ($5.00);

1 Extra White Top EA ($1.50)

$6.50

57.
08/04/2016

KFC Mount Pleasant, Mackay

1 Fillet Burger, 1 Zinger Fillet, 1 Large Chips, 600ml Pepsi Max ($11.55);

3 Original Piece, 1 Can Solo, 1 Portion Chips + extra salt, 1 dinner roll, 1 can solo ($11.95)

$23.50

58.
13/04/2016

Woolworths Caltex Blackwater

Partly illegible receipt

$3.90

59.
14/04/2016

Olivia Pineda, Andergrove

Not itemised

$50.60

60.
15/04/2016

Gloria Jeans Mount Pleasant, Mackay

Not itemised

$15.35

61.
19/04/2016

San Churro Chocolateria (Sansev Pty Ltd) Brisbane

Flat white Lge ($4.90);

English Breakfast ($3.90);

Cappuccino Lge ($4.90);

Latte Lge ($4.90);

Churros for two ($14.95);

extra bananas ($3.00);

extra dulce de leche dip ($3.00);

extra marshmallow ($3.00);

churros for two ($14.95);

extra bananas ($3.00);

extra strawberries ($3.00);

churros for one ($8.95);

extra strawberries ($3.00);

beyond blue water ($2.50)

$77.95

62.
20/04/2016

Café Mondial, Brisbane

1 Lemon, Lime & Bitters ($4.50);

1 Calamari ($21.95);

1 Past Al A Jillo ($23.90)

$50.35

63.
21/04/2016

Oasis Fuel (Puma Racecourse) Mackay

CCA Mt Franklin 1.5L ($5.30)

$5.30

64.
01/05/2016

Moranbah Community Workers Club, Moranbah

S & P Calamari Topper

$6.50

65.
Moranbah Community Workers Club, Moranbah

Texas BBQ Pork Ribs 1/2R salad & chips ($18.00);

Steak 300g rib fillet, Dianne sauce, salad & chips ($31.50);

chicken schnitzel, parmi topper, gravy sauce, salad & chips ($22.50);

crumbed steak, mushy sauce, salad & chips ($18.00);

steak 300gm rib fillet, mushy sauce, salad & chips ($31.50)

$121.50

66.
01/05/2016

Coles Express Blackwater

Coke Zero 600ML ($5.00);

Crink BBQ 90gm Smith ($3.00);

T/Delight 2pk 76gm ($6.80);

Twisties Chkn 90gm ($3.00);

Solo 375ml ($1.00);

Coke Diet 600ML ($5.00);

Chomp 30gm ($1.35)

$21.15

67.
21/05/2016

Dysart Truck Stop

Drink - illegible ($4.60); Turkish delight twin pack ($4.10)

$8.70

68.
22/05/2016

Oasis Fuel Mackay (Puma Racecourse)

Cad Caramello Koala Giant * 2 ($3.00); CCA Mt

Franklin Sparkling 450ML ($3.50);

Frys Turkish Delight Twin Pack 76gm ($3.20);

Smiths Crinkl BBQ ($3.40);

V Energy Drink ($4.45)

$17.55

69.
27/05/2016

Dysart Truck Stop

V S/Free bottle 350ml ($4.60)

$4.60

70.
28/05/2016

Coles Express Mackay

T/Delight 2PK 76gm ($3.40);

Drumstick Choc Mint ($4.00);

Golden Gaytime ($4.00)

$11.40

71.
29/05/2016

Oasis Fuel Mackay

Cad Carml Koala Giant 35gm * 2 ($3.00);

CCA Mt Franklin 600ml ($3.50);

Frys Turk Delight Twin PK 76gm ($3.20);

V Energy Drink S/F BLS 350ML ($4.45)

$14.15

72.
30/05/2016

BP Peak Downs

Cadbury Snack ($3.50);

Coke Zero 357ml ($3.95);

Frys Turk Delight 55gm ($3.00);

Mount Franklin 600ML ($3.95)

$14.40

73.
30/05/2016

Caltex Tieri

Red Bull Sugrfree 250ML ($4.10);

Z-Mars Maltesers Bag 155 ($5.50)

$9.60

74.
30/05/2016

Tieri Hotel Motel

Not itemised (marked “dinner” - other illegible notations)

$17.20

75.
31/05/2016

Oasis Fuel Mackay

CCA Mt Franklin 600ml ($3.50);

V Energy Drink S/F GLS 350ML ($4.45)

$7.95

76.
04/06/2016

Gloria Jeans Mt Pleasant

1 Lge Cup Skim Milk ($5.30)

Banana bread ($4.75)

$10.05

77.
04/06/2016

Coles Express Blackwater

Mt Franklin 600ml ($2.00);

Wrigleys Extra Bottle ($4.70 less $0.70 promotion)

$6.00

78.
17/06/2016

Caltex WOW Mackay

Mt Franklin Stillwtr

$5.95

79.
19/06/2016

Caltex Middlemount (Middlemount Roadhouse)

Coke Diet 600ML ($5.50);

Sandwiches Assorted ($6.99)

$12.49

File number:	QUD 411 of 2021
Judgment of:	LOGAN J
Date of judgment:	28 March 2024
Catchwords:	INDUSTRIAL LAW – where the applicant applies for declarations of contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) and civil penalties against the respondent, in his capacity as President of the Queensland District Branch of the Construction, Forestry, Maritime, Mining & Energy Union’s (the Union) Mining & Energy Division – where the respondent was issued a credit card by the Union – where the Union had a policy and relevant expenditure rules that regulated the use of the credit card – where the respondent had a small, no-interest loan facility with the Union – where any outstanding credit card debits were cleared each month via a banking procedure and were subsequently debited to the respondent’s loan facility – where the respondent allegedly did not use the credit card in accordance with the policy over a two year period – whether this credit card usage contravened ss 285, 286 and 287 of the FWRO Act INDUSTRIAL LAW – where, prima facie, some contraventions of ss 285, 286 and 287 of the FWRO Act established on the evidence – where s 320 of the FWRO Act deems that, after a period of four years, acts are taken to have been done in compliance with the rules of an registered industrial organisation – where the applicant made no application under section 321 of the FWRO Act – whether s 320 of the FWRO Act has the effect of retrospectively adjudging that acts done in contravention of the rules are not, in fact, contraventions – proceedings dismissed
Legislation:	Conciliation and Arbitration Act 1904 (Cth) ss 171F, 171G Conciliation and Arbitration (Organisations) Act 1974 (Cth) s 16 Corporations Act 2001 (Cth) s 180 Evidence Act 1995 (Cth) ss 140, 144 Fair Work Act 2009 (Cth) Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 285, 286, 287, 315, 320, 321, 329A, 331 Income Tax Assessment Act 1936 (Cth) s 8-1 Income Tax Assessment Act 1997 (Cth) ss 50.1, 50.15 Civil Liability Act 2002 (NSW) s 5B Trade Union Act 1871 (UK) Companies (West Australia) Code s 229
Cases cited:	Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Australian Building and Construction Commissioner v Ingham (The 180 Brisbane Construction Case) (No 2) [2021] FCA 263 Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 Australian Securities & Investments Commission v Healey (No 2) (2011) 196 FCR 430 Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (2014) 322 ALR 45 Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 336 ALR 209 Australian Securities and Investments Commission v Lewski (2018) 266 CLR 173 Australian Securities and Investments Commission v Vines (2005) 65 NSWLR 281 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Baker [1964] VR 443 Construction Forestry Mining and Energy Union v North Goonyella Coal Mine Pty Ltd [2013] FCA 1444 Daniels v Anderson (1995) 37 NSWLR 438 Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152 Edwards v Attorney-General (NSW) (2004) 60 NSWLR 667 Egan v Harradine (1975) 25 FLR 336 Gauntlett v Repatriation Commission (1991) 32 FCR 73 General Managerof theFair Work Commission v McGiveron [2017] FCA 405 Health Services Union v Jackson (No 4) (2015) 108 ACSR 156 Heatons Transport (St Helens) Limited v Transport General Workers Union [1973] AC 15 Jolly v Sharma [2024] FCA 171 Kucks v CSR Limited (1996) 66 IR 182 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 New South Wales v Commonwealth (2006) 229 CLR 1 Permanent Building Society (In liq) v Wheeler (1994) 11 WAR 187 R v Aird; Ex parte Australian Workers’ Union (1973) 129 CLR 654 Ralph v Repatriation Commission (2016) 248 FCR 438 Re City Equitable Fire Insurance Co [1925] 1 Ch. 407 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 Re Wave Capital Ltd (2003) 47 ACSR 418 Registered Organisations Commissioner v Australian Nursing and Midwifery Federation [2018] FCA 1735 Registered Organisations Commissioner v Australian Workers’ Union (2020) 281 FCR 518 Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1
Division:	Fair Work Division
Registry:	Queensland
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	385
Date of last submission:	16 May 2023
Date of hearing:	28 November 2022 – 6 December 2022 3 – 4 April 2023
Counsel for the Applicant:	Ms J Firkin KC with Mr A Crocker
Solicitor for the Applicant:	Maddocks Lawyers
Counsel for the Respondent:	Mr P McCafferty KC with Mr H Clift
Solicitor for the Respondent:	Hall Payne Lawyers

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	28 MARCH 2024

Item	Description
1.	05/07/15 BP Racecourse, Mackay expenses Coke 250ml Zero ($2.00); Coke 600ml Mount Franklin ($3.40); Nestle Milkybar K/Size ($3.20); Twisties Cheese 90g ($3.40) $12
2.	06/07/15 Crusty’s Mackay Not itemised $10.10
3.	17/07/15 Meriton Brisbane Not itemised $20.30
4.	18/07/15 The Hub’s Wok, Fortitude Valley Not itemised $17.40
5.	24/07/15 Shell Oil Mammoth Lakes 6.672G (fuel); 2 Gift; tax $45.87
6.	30/07/15 Mirage Hotel Starbucks Las Vegas 1 Grande Caffe L ($5.05); 1 LemonPound Bread ($4.00); tax ($0.73) $13.52
7.	04/08/15 Caltex Woolworths Mackay Nth Mt Franklin Stllwtr 600M ($3.60); Red Bull Sugrfree 250ML $7.55
8.	27/08/15 Dysart Truckstop Dysart Red Bull 250ml S/Free ($3.70) $3.70
9.	19/09/15 Choice Banana Truckstop, Banana Coke 600ML Mount Franklin ($3.40); Premade Sandwiches ($5.95) $9.35
10.	19/09/15 Caltex Star Mart Paget City Gate, Mackay Mt Franklin Stllwtr 600M ($3.00); Red Bull Sugrfree 250ML ($4.00) $7.00
11.	20/09/15 BP Moura Partly illegible receipt $24.98
12.	27/09/15 Bruce Highway Bloomsbury Rural Assorted s/wiches ($4.90); Corn Jacks ($2.60); Diet Coke 390ML ($2.95); Pop’Em Chicken Cup ($4.95) $15.30
13.	27/09/15 BP Home Hill Red Bull 250ML Sugarfee ($3.99); 600ML Cool Ridge Spring Wtr ($5.90) $9.89
14.	28/09/15 Caltex Middlemount Roadhouse Sandwiches Assorted each ($6.99); Red Bull Sugar Free 250ML ($4.99); (Mt Frankl Stil Wate1.5L ($5.99) $17.97
15.	28/09/15 Woolworths Caltex Blackwater Red Bull Energy Drink S/Free 250ML ($3.99); Mars M&M Crispy ($5.79) $9.78
16	10/10/2015 Caltex Woolworths Mackay Nth Mercury Newspaper $1.70
17.	19/10/2015 Queensland Transport Mackay Drivers licence renewal $160.03
18.	24/10/2015 Stellarossa Mackay Parkside Pepsi Max 300ml x 2 ($7.80); Trio of Sliders w/chips ($15.90); Chilli Salt Squid ($11.90); Chicken Burger w/chips ($16.90); Frappes ($5.90) $58.40
19.	26/10/2015 Grab A Kebab Mackay Not itemised $15.00
20.	29/10/2015 Woolworths Caltex Blackwater Mount Franklin x 2 ($6.60); drink - illegible ($4.50); item - illegible ($5.10) $12.90
21.	01/11/15 Angelos on the Marina Muggachino Skim Milk ($5.50); English Breakfas ($4.50); French Toast x 3 ($16.90 * 3); Hash Cakes ($4.00); Vanilla Milkshak ($7.50); English Breakfas ($4.50) $93.60
22.	10/11/2015 Nick’s Seafood Bar & Restaurant, Sydney Not itemised $101.50
23.	22/11/2015 Nothinfancy, Collinsville Not itemised $56.00
24.	23/11/2015 Dysart Truck Stop (Caltex), Dysart Mt Franklin 1.5lt ($5.95); Red Bull 250ml S/Free ($3.70); Cad Cherry Ripe King Size ($4.10) $13.75
25.	30/11/2015 Café Mondial, Albert Street, Brisbane Apple Juice ($4.50); 2 Btl Diet Coke ($9.40); 1 Coke ($3.95); 1 Linguini Carbonara ($23.95); 1 Sizzling Fajitas ($29.95); 1 Fettuccine Marinara $97.65
26.	04/12/2015 Oaks Casino Towers Brisbane Accommodation upgrade $140.05
27.	06/12/2015 Hotel Settlers, Biloela HS - Pork Rib on th* and mash $33.95
28.	07/12/2015 Woolworths Caltex, Gracemere Coca Cola Drink Diet Pet 600ML ($4.50); Mrs Macs Pie Traditional Beef 200g ($3.25); Red Bull Spec Offer ($2.50) $5.25
29.	12/12/2015 McDonalds Mackay 1 tall cappuccino $5.10
30.	12/12/2015 Gloria Jeans Mackay Not itemised $4.75
31	12/12/15 United Moranbah Fresh sandwiches ($5.95); Coke Diet 375ml can ($2.80); Mt Franklin Lspk Br 450 ($3.50); Nestle Milky Bar 75g ($3.30) $15.55
32.	19/12/2015 Caltex Woolworths Mackay Nth Diet Coke 600ML ($4.95); 4n20 pie chky beef 200g ($4.95) $9.90
33.	20/12/2015 Woolworths North Mackay Mighty soft bread white sandwich 700g ($3.39); Coca Cola Diet Coke 30 x 375ML ($16.80) $20.19
34.	23/12/2015 BP Racecourse, Mackay Allens freckle 200gm ($5.50); CCA Mount Franklin ($3.50); Go Nat Macadamia ($2.95) $11.95
35	26/12/2015 United Cannondale Partly illegible receipt $18.20
36.	07/01/2016 Oasis Fuel North Mackay (Puma) Partly illegible receipt $9.20
37.	09/01/2016 Pig N Whistle Queen St, Brisbane Pig N Whistle Queen St, Brisbane $30.95
38.	11/01/2016 McDonalds Mackay North 1 Med Classic angus, 1 med fries, 1 std cappuccino, 1 skim milk ($12.60); 1 classic angus ($7.40) $20.00
39.	12/01/2016 Gloria Jeans Mackay (Mount Pleasant) Not itemized $10.05
40.	16/01/2016 Bunnings Mackay North Line Trimmer Accessory Ryobi Bump Knob Curve Shft LTA- DD/A ($10.96); Shovel Saxon Timber L/Handle SQ HTH S519-7L ($14.98) $25.94
41.	20/01/2016 Coles Express (Eureka Operations), Mackay North Coles Choc Coat Sui t ($2.20); Daily Mercury Wednes ($1.30) $3.50
42.	24/01/2016 The Hub’s Wok Not itemised $52.80
43.	25/01/2016 Mantra on Queen Not itemised $95.50
44.	26/01/2016 Emirates Leisure Retail, Eagle Farm (Glasshouse Bar, Brisbane Airport) 2 Toast + Avocado+ Feta + Tomato ($28.00); 1 Cappuccino ($4.90); 1 Juice Orange ($4.00) $18.00
45.	27/01/2016 Caltex Nebo, Nebo Items obscured $23.05
46.	28/01/2016 Blackwater Properties – Dinner Several items obscured – Heineken ($8.00); Corona ($8.00); St Date ($10.00); Apple ($10.00); Pfruit Cke ($10.00); Pfruit Cake ($10.00); Cappuccino ($3.50); Mug ($1.00); Cafo Latte ($3.50); Mug ($1.00) $50.75
47.	22/02/2016 Brisbane Marriott Hotel 3 * Mug of Coffee (3 * $6.40); 1 * Mug of Coffee with vanilla ($7.15) $26.90
48.	23/02/2016 Izoo Espresso, Brisbane 1 Cappuccino ($4.00); 1 Flat white ($4.00); 1 Tea ($3.50) $11.50
49.	27/02/2016 Coral Sea Resort, Mini bar Mini bar water ($3.50) $3.50
50	13/03/2016 Travelodge Rockhampton Dinner, Room Serv, Check No. 3444 ($74.50); In Room Service Movie Deal – Channel ($24.95); Restaurant 1 - Food - Breakfast ($13.50) $112.93
51.	20/03/2016 Oasis Fuel (Puma Andergrove), Andergrove (North Mackay) Mt Franklin/Pump * 2 ($6.50) $6.50
52.	23/03/2016 United Moranbah Cadbury Turkish Delight Twin 76g ($6.60); Red Bull Can S/Free 250ml ($4.20) $10.80
53.	27/03/2016 Care Park, Airlie Beach (not Melbourne, as put by the General Manager) Parking 2.23 to 4.23pm on 27/3/16 $4.80
54.	04/04/2016 Caltex Woolworths Mackay North Mt Franklin Stillwater 600ml ($3.60); Cad Turkish Delight ($3.25) $6.85
55.	05/04/2016 Gilhooleys, Brisbane Not itemised $40.90
56.	07/04/2016 7 Eleven, Brisbane 1 Mt Frank St 1.5L EA ($5.00); 1 Extra White Top EA ($1.50) $6.50
57.	08/04/2016 KFC Mount Pleasant, Mackay 1 Fillet Burger, 1 Zinger Fillet, 1 Large Chips, 600ml Pepsi Max ($11.55); 3 Original Piece, 1 Can Solo, 1 Portion Chips + extra salt, 1 dinner roll, 1 can solo ($11.95) $23.50
58.	13/04/2016 Woolworths Caltex Blackwater Partly illegible receipt $3.90
59.	14/04/2016 Olivia Pineda, Andergrove Not itemised $50.60
60.	15/04/2016 Gloria Jeans Mount Pleasant, Mackay Not itemised $15.35
61.	19/04/2016 San Churro Chocolateria (Sansev Pty Ltd) Brisbane Flat white Lge ($4.90); English Breakfast ($3.90); Cappuccino Lge ($4.90); Latte Lge ($4.90); Churros for two ($14.95); extra bananas ($3.00); extra dulce de leche dip ($3.00); extra marshmallow ($3.00); churros for two ($14.95); extra bananas ($3.00); extra strawberries ($3.00); churros for one ($8.95); extra strawberries ($3.00); beyond blue water ($2.50) $77.95
62.	20/04/2016 Café Mondial, Brisbane 1 Lemon, Lime & Bitters ($4.50); 1 Calamari ($21.95); 1 Past Al A Jillo ($23.90) $50.35
63.	21/04/2016 Oasis Fuel (Puma Racecourse) Mackay CCA Mt Franklin 1.5L ($5.30) $5.30
64.	01/05/2016 Moranbah Community Workers Club, Moranbah S & P Calamari Topper $6.50
65.	Moranbah Community Workers Club, Moranbah Texas BBQ Pork Ribs 1/2R salad & chips ($18.00); Steak 300g rib fillet, Dianne sauce, salad & chips ($31.50); chicken schnitzel, parmi topper, gravy sauce, salad & chips ($22.50); crumbed steak, mushy sauce, salad & chips ($18.00); steak 300gm rib fillet, mushy sauce, salad & chips ($31.50) $121.50
66.	01/05/2016 Coles Express Blackwater Coke Zero 600ML ($5.00); Crink BBQ 90gm Smith ($3.00); T/Delight 2pk 76gm ($6.80); Twisties Chkn 90gm ($3.00); Solo 375ml ($1.00); Coke Diet 600ML ($5.00); Chomp 30gm ($1.35) $21.15
67.	21/05/2016 Dysart Truck Stop Drink - illegible ($4.60); Turkish delight twin pack ($4.10) $8.70
68.	22/05/2016 Oasis Fuel Mackay (Puma Racecourse) Cad Caramello Koala Giant * 2 ($3.00); CCA Mt Franklin Sparkling 450ML ($3.50); Frys Turkish Delight Twin Pack 76gm ($3.20); Smiths Crinkl BBQ ($3.40); V Energy Drink ($4.45) $17.55
69.	27/05/2016 Dysart Truck Stop V S/Free bottle 350ml ($4.60) $4.60
70.	28/05/2016 Coles Express Mackay T/Delight 2PK 76gm ($3.40); Drumstick Choc Mint ($4.00); Golden Gaytime ($4.00) $11.40
71.	29/05/2016 Oasis Fuel Mackay Cad Carml Koala Giant 35gm * 2 ($3.00); CCA Mt Franklin 600ml ($3.50); Frys Turk Delight Twin PK 76gm ($3.20); V Energy Drink S/F BLS 350ML ($4.45) $14.15
72.	30/05/2016 BP Peak Downs Cadbury Snack ($3.50); Coke Zero 357ml ($3.95); Frys Turk Delight 55gm ($3.00); Mount Franklin 600ML ($3.95) $14.40
73.	30/05/2016 Caltex Tieri Red Bull Sugrfree 250ML ($4.10); Z-Mars Maltesers Bag 155 ($5.50) $9.60
74.	30/05/2016 Tieri Hotel Motel Not itemised (marked “dinner” - other illegible notations) $17.20
75.	31/05/2016 Oasis Fuel Mackay CCA Mt Franklin 600ml ($3.50); V Energy Drink S/F GLS 350ML ($4.45) $7.95
76.	04/06/2016 Gloria Jeans Mt Pleasant 1 Lge Cup Skim Milk ($5.30) Banana bread ($4.75) $10.05
77.	04/06/2016 Coles Express Blackwater Mt Franklin 600ml ($2.00); Wrigleys Extra Bottle ($4.70 less $0.70 promotion) $6.00
78.	17/06/2016 Caltex WOW Mackay Mt Franklin Stillwtr $5.95
79.	19/06/2016 Caltex Middlemount (Middlemount Roadhouse) Coke Diet 600ML ($5.50); Sandwiches Assorted ($6.99) $12.49