Hockings v Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers)
[2014] QIRC 37
•19 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Hockings v Queensland Retail Traders and | ||
| Shopkeepers Association (Industrial Organization of | |||
| Employers) [2014] QIRC 037 | |||
| PARTIES: | Hockings, John Norman | ||
| (Applicant) | |||
| v | |||
| Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) | |||
| (Respondent) | |||
| CASE NO: | B/2013/18 | ||
| PROCEEDING: | Application to re-open proceedings | ||
| DELIVERED ON: | 19 February 2014 | ||
| HEARING DATES: | 12 and 26 April 2013 | ||
| 30 May 2013 | |||
| MEMBER: | Deputy President Bloomfield | ||
| ORDERS : |
|
the Commission's own initiative.
2. Orders in Matter No. RIO/2012/155, issued on 10 September 2012 and formalised on 5 December 2012, be vacated.
3. Mr Scott and Mrs Emma Driscoll be
referred to the Queensland Police Service for
investigation.4. Mr Scott Driscoll be referred to the Speaker of Queensland Parliament for possibly misleading Parliament.
CATCHWORDS: | INDUSTRIAL LAW - APPLICATION TO RE-OPEN PROCEEDINGS - Proxies - No capacity to use proxies - Sham meetings - Unauthorised transfer of monies - Questionable behaviour and activities uncovered - Matters uncovered referred to Queensland Police Service - Possible misleading of Parliament - Matter referred to the Speaker of Queensland Parliament. |
| CASES: | Industrial Relations Act 1999, s 280, s 317, s 570 |
| Corporations Act 2001 (Cth), s 583 | |
| Associations Incorporation Act 1981 (Qld), s 90(1)(c) | |
| APPEARANCES: | Mr C. Dorber, of Employment Advocacy Solutions Pty Ltd, for Mr John Hockings, the Applicant. |
| Mr C. Coulsen of Counsel, instructed by Mr S. Barber of Ferguson Cannon Lawyers, for the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers), the Respondent (12 April 2013). | |
| Mr S. Barber, of Ferguson Cannon Lawyers, for the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers), the Respondent (26 April 2013). | |
| Mr S. Barber, of Ferguson Cannon Lawyers, for | |
| Mrs Emma Driscoll (30 May 2013). |
Committee Member - Judy Jiang
(the 'Interim Committee')
on 1 September 2012, be treated as having been validly made by the QRTSA:
(i) to make and file in the Registry this application for declaration and orders for invalidities;
(ii) to make and file in the Registry an application for a new set of rules;
(iii) to file prescribed information for the conduct of an election by the Electoral Commission Queensland;
(iv) to file financial reports of the QRTSA for the 2010 year and the 2010/2011 year.
b)
The Interim Executive Committee will hold office and manage the affairs of the QRTSA until the Electoral Commission Queensland conducts the elections for the Executive Committee and the newly elected officers take up office at the Annual General Meeting in March 2013."
Application to re-open proceedings
[4] Subsequently, on 9 April 2013, Mr John Hockings made application to the Queensland Industrial Relations Commission (the Commission/QIRC), pursuant to s 280 of the Act, to re-open the Invalidities proceeding for a variety of reasons including:
he was an executive member of QRTSA at the time the application in the
Invalidities proceeding was lodged; he had never been informed of any meetings of the executive or members
of QRTSA where that application was discussed; the Invalidities application was never authorised by the executive or
members of QRTSA; matters sworn by Mrs Emma Driscoll and Mr Bruce Mills in relation to
the Invalidities application were false and misleading; and neither Mrs Emma Driscoll or Mr Bruce Mills were eligible to hold
office in QRTSA.[5] When Mr Hockings' Application was listed for mention on 12 April 2013 Mr C. Coulsen of Counsel, who appeared for the Interim Executive Committee of QRTSA, indicated that the application would be opposed. After hearing argument from Mr Coulsen and Mr C. Dorber, who represented Mr Hockings, I issued certain directions and orders in relation to discovery and the like preparatory to listing Mr Hockings' application for determination.
Discovery of questionable activities
[6] However, on 18 April 2013 I became aware that Mrs Driscoll and Mr Mills had caused for an application to be filed in the Supreme Court of Queensland on 11 April 2013 which sought an order that the affairs of the incorporated association known as "Queensland Retail Traders and Shopkeepers Association" be wound-up pursuant to s 583 of the Corporations Act 2001 (Cth), and/or s 90(1)(c) of the
Associations Incorporation Act 1981 (Qld).
[7] An affidavit appended to the application, under the hand of Mrs Driscoll, recorded that as at 27 February 2013 QRTSA received a Notice of Default and Demand from the Bank of Queensland requiring repayment of $100,348 and that the financial position of QRTSA was such that it was unable to pay its debts, having assets of approximately $37,000 and liabilities of approximately $105,000.
[8] In light of this information and my knowledge of the fact that a Full Bench of the Commission had refused an application by Mrs Driscoll and Mr Mills to cancel the Registration of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) on 12 April 2013 I caused for searches to be undertaken of the ASIC database as well as the records of organisations registered in Queensland under the Associations Incorporation Act 1981.
[9] These searches revealed there was no similarly named organisation under the Queensland legislation but that there was a registration with ASIC of a company known as Queensland Retail Traders and Shopkeepers Association (ACN 009 660 495), an Australian Public Company Limited by Guarantee. Further searches of the ASIC database disclosed that the following persons were recorded as Directors and Secretary of the Company, together with their date of appointment to the respective positions, as follows:
Bruce Mills - appointed as Director 24 September 2012; Emma Driscoll - appointed as Director 24 September 2012; Scott Driscoll - appointed as Director 24 September 2012 (resigned
28 November 2012); Leesa Mills - appointed as Secretary 24 September 2012; and Nicholas Withycombe - appointed as Director 28 November 2012.
[10] A separate search of various Returns filed in the Office of the Industrial Registrar showed the following Office Bearers of QRTSA as well as their date of Election/Appointment to the role:
E. Driscoll - President - 18 April 2011; J. Edwards - Senior Vice President - 18 April 2011; N. Withycombe - Member - 18 April 2011; J. Jiang - Member - 18 April 2011; B. Mills - Secretary - 17 July 2011; and L. Mills - Treasurer - (no date of Appointment to any role recorded).
[11] Further searches of records held in the Office of the Industrial Registrar disclosed that financial statements for the year ending 30 June 2012, which included a record of changes in Office Bearers during the previous 12 months ended that same date, were filed on 12 March 2013. Accompanying that material was a Declaration (dated 6 March 2013), in a form required by the Act, which read as follows:
"We Emma Driscoll and Bruce Mills being two Members of the Executive Committee of Queensland Retail Traders & Shopkeepers Association (Industrial Organization of Employers) for the financial year ended 30 June 2012, do state on behalf of the Executive Committee (the Management Committee as determined by the Industrial Relations Act 1999) and in accordance with a resolution passed by the Executive Committee, that:
(i) In our opinion, the accounts show a true and fair view of the organisation's financial affairs at the end of the financial year to which the statements relate;
(ii) The Committee considers the organisation was solvent during the whole of the year and at the date of this statement, the Organization is able to pay its debts as and when they fall due;
(iii) In our opinion, during the financial period to which the statements relate,
the Committee's meetings were held in accordance with the
Organization's rules;
… (v) The Audit report and relevant accounts for the Organization's financial year immediately before the year the accounts are about have been -
(a) Presented to a Management Committee Meeting of the Organization in accordance with Section 565 of the Act; and (b) Given to the Members of the Organization in accordance with Section 565 of the Act." (my emphasis)
[12] By way of separate declaration Mr Bruce Mills swore, pursuant to the provisions of s 570 of the Act, that the original of the Auditors' Report and Accounts of the Organisation for the financial year ending 30 June 2012 had been presented to the Executive Committee of the Organisation. In an "Accounting Officer's Certificate" Mr Mills also certified that, as the officer responsible for keeping the accounting records of QRTSA, he was of the opinion, inter alia that:
"i) The financial statements show a true and fair view of the Organization's
financial statement at the end of the Organization's financial year;ii)
A record has been kept of all monies paid by, or collected from, members of the Organization and all monies so paid and collected have been credited to the bank account or accounts to which the monies are to be credited, in accordance with the Rules of the Organization;
iii)
Before any expenditure was incurred by the Organization, approval of the incurring of the expenditure was obtained in accordance with the rules of
the Organization; … v) Any loans or other financial benefits given to employees or officers of the Organization were allowed under the Organization's rules; … " (my emphasis)
[13] On the basis that the information contained in the declarations of Mrs Driscoll and Mr Mills, respectively, appeared to be totally at odds with information provided to the Supreme Court (see paragraph [7] above) and to myself during the Invalidities proceeding, I decided to relist Mr Hockings' Application for further mention on 26 April 2013. This was done to allow me to obtain further information about the affairs of QRTSA both prior to and subsequent to the proceedings before me in September 2012.
[14] Prior to the matter coming on for further mention I took the opportunity to look at the financial position of QRTSA as at 30 June 2012 in order to understand how it might have become insolvent by April 2013. In the course of examining the financial returns and the nature of the activities of the Company Limited by Guarantee I established that the Company did not trade and had nil assets and liabilities. Its sole role was to act "as Trustee for the property beneficially owned by the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers)". I also established that while members' equity in QRTSA as at 30 June 2011 was $560,896 it had significantly deteriorated to become a deficit of $3,639 by 30 June 2012, being a turnaround of $564,535 in just 12 months. This raised serious questions, in my mind, about the administration of the affairs of QRTSA over that 12 month period as well as in the period leading up to the Invalidities proceeding in September 2012 and subsequently. Put bluntly, the information caused me to doubt the appropriateness of the Orders I made in the Invalidities proceeding and to wonder whether those persons identified in paragraphs [3] and [10] had been asleep at the wheel in their apparent oversight of the affairs of QRTSA.
[15] Still further searches of the financial records of QRTSA disclosed the following Note to the 30 June 2012 financial statements:
"Note 10: Related Parties
Interest in Contracts
NORSEFIRE PTY LTD* was engaged to provide management and administration services to the Entity. The total paid to NORSEFIRE PTY LTD for the services rendered to 30 June 2012 was $334, 602 excluding GST."
(*Norsefire Pty Ltd is a company linked to Mrs Emma Driscoll and Mr Scott Driscoll who, the records revealed, was the "President" of QRTSA until he resigned in September 2012.)
[16] Including GST, the payment to Norsefire Pty Ltd was $368,062.20. This was in circumstances where membership income to QRTSA was only $341,718.
[17] In addition to this, Note 13: Related Parties to the 30 June 2011 financial statements recorded that Norsefire Pty Ltd was paid $159,209.99 excluding GST ($175,240.98 including GST) during the six month period 1 January 2011 to 30 June 2011, inclusive. This meant that Norsefire Pty Ltd was paid $543,303.18 over an 18 month period to 30 June 2012.
[18] Importantly, notwithstanding the considerable deterioration in the financial affairs of QRTSA in the 12 months to 30 June 2012, and receipt of a Notice of Demand from the Bank of Queensland on 27 February 2013, the financial reports of QRTSA, which were signed by Mrs Driscoll and Mr Mills on 6 March 2013 and lodged with the Registrar on 12 March 2013, also recorded: "Since the end of the financial year no matters of a material nature have occurred that have not been disclosed elsewhere in the financial statements."
[19] In addition, Mrs Driscoll and Mr Mills also certified in their "Statement by Members of the Committee", which was included in the financial reports they signed on 6 March 2013: "At the date of this statement, there are reasonable grounds to believe that the entity will be able to pay its debts as and when they fall due".
[20] In light of all of the above inconsistencies about the alleged conduct of meetings, alleged approvals of expenditure, payments of significant amounts of monies to related parties (in the form of Norsefire Pty Ltd), and the significant turnaround in the financial position of QRTSA, I issued a number of Orders and directions to each of the members of the Interim Executive Committee recorded at paragraph [3] above at the resumed proceedings on 26 April 2013.
[21] In that regard, each of the persons named in that paragraph was required to produce to me by 12 noon on Friday 3 May 2013 an affidavit which set out:
the dates of all meetings, whether they be annual, ordinary, special or extraordinary, of the Committee of Management (however described) of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) attended by them between 18 April 2011 and 24 April 2013;
copies of all meeting notices and accompanying papers provided to them prior to any meeting as well as any documents provided to them at any meeting or subsequently;
copies of all minutes of all meetings referred to above;
details of how they attended each and every meeting identified above (i.e. in person, by telephone, by videoconference or in some other manner (i.e. by proxy)) and whether they attended the meeting for the whole or only part of its duration;
details of the location at which each of the meetings referred to above
was conducted as well as the time at which it commenced and finished; details of any meetings they were aware of but which they did not
attend; and
details of their knowledge of the extent to which, and the manner by which, the Committee of Management ascertained the views of the members of QRTSA in relation to the decision said to have been taken on 12 December 2012 to deregister the Organization - including reference to and copies of any material circulated to members in relation to that issue and the method by which members were invited to record their "vote" in relation to that proposal.
[22] Ultimately, affidavits were received from Mrs Driscoll, Mr Withycombe, Mr Edwards and Ms Jiang. Mr and Mrs Mills did not provide an affidavit per se but participated (on oath), on my express authorisation, in a detailed "question and answer" session with the Industrial Registrar during which each of the matters identified in paragraph [21] was addressed.
[23] Mr Edwards (the husband of Ms Jiang) deposed that Mr Scott Driscoll asked he and his wife to join the "United Retail Federation"* in early 2011. Mr Driscoll explained to them that he needed them "to make up numbers and that they would have no function nor involvement" and that he would take care of the membership fee. He also asked them to sign some documents "so that we don't have to go to meetings". Mr Edwards also swore that he did not attend any meetings or receive any agenda papers or minutes of any meetings. (*"United Retail Federation" was a trading name which QRTSA apparently adopted at some point in time.)
[24] In January 2013 Mr Edwards found out, after being informed by his accountant, that he was the Senior Vice President of QRTSA and his wife was a committee member. He was not sure about how and when this happened and decided to resign. After speaking to the accountant he and his wife resigned, on 19 March 2013, from any role they had in QRTSA.
[25] Subsequently, on 3 April 2013, Mr Scott Driscoll came to see he and his wife and asked them to change the name on a document, dated sometime in September 2012, from "Scott Driscoll" to "Emma Driscoll" "because he said on that date he resigned and Emma Driscoll took over his place". Mr Edwards also said "because he keep chasing us and we afraid him because he is Politician, so we signed the paper, and we did not receive any copy of the document we have signed".
[26] Ms Jiang deposed that she and her husband (John Edwards) had never been to any meetings of QRTSA and did not know there had been any meetings. Ms Jiang said she knew Mr Driscoll because he was a regular client in her mother's shop and that at one point in time (while her husband was doing some computer work for Mr Driscoll) "Scott did ask us signed a paper he said was to help with his number's for his organization. He said their was no more involvement necessary by us. So we did not know about this organization or any meetings."
[27] In January 2013 she and her husband received information from their Accountant to the effect that her husband was the Senior Vice President of QRTSA and she was a committee member. Because they did not know what was going on, and did not like it, they decided to resign, which they did with the assistance of their accountant on 19 March 2013.
[28] Ms Jiang also said that on 3 April 2013 Mr Driscoll asked she and her husband to sign a piece of paper, the only detail about which she could remember was a reference to the year being 2012.
[29] In a subsequent affidavit, prepared at my request, Ms Jiang confirmed that a document purporting to be a "Standing Proxy Authority" appointing
Mr Scott Driscoll "… to cast my proxy vote as he sees fit at any meeting or motion to be considered by the organization…" had been signed by her on 17 April 2011
and that additional words on a copy of that "Proxy" had been dictated to her by
Mr Driscoll on 3 April 2013. These additional words were:"Please note that this Standing Proxy Authority transfers from Scott Driscoll to Emma Driscoll from the date she became President of the QRTSA, including the meeting establishing the QRTSA Interim Committee in Sept. 2012."
[30] In addition, Ms Jiang swore that she did not have a business called "Clean up Queen" (as recorded in the membership records of QRTSA). "I only did help Scott clean his house few weeks during 2011, and he paid me some cash for cleaning his house every time". She had also never paid any membership fees to QRTSA.
[31] Mr Withycombe deposed that he did not attend any meetings of QRTSA between 18 April 2011 and 24 April 2013 either in person, via telephone or via any other medium. He claimed to have provided a "Standing Proxy" to Scott Driscoll, via post and verbally, on or around 18 April 2011. He did not have a copy of the original Proxy, which "was an open proxy and did not have any limitations".
[32] He also stated that his "Standing Proxy" was transferred to Emma Driscoll from 1 September 2012 and that "I drafted this document on 23 April 2013".
[33] In response to additional questions I put to him via email, Mr Withycombe filed a further affidavit on 7 May 2013. In this affidavit he said that meeting notices, agendas and minutes attached to his earlier affidavit, dated 1 May 2013, in relation to the affairs of QRTSA were not in his possession as at 26 April 2013. They had been supplied to him by Mrs Driscoll on 27 April 2013. He also claimed that the documents he received after the hearing on 26 April 2013 "generally reflect my broad understanding of the matters outlined in the said documents". His "broad understanding" was said to have been obtained from informal discussions he had with fellow "voluntary executive committee members", including Scott Driscoll, Emma Driscoll and Bruce Mills.
[34] In addition, Mr Withycombe said that he did not recall any conversation in relation to the Invalidity application, although he participated in the email plebiscite in relation to the proposal to deregister QRTSA.
[35] Mrs Emma Driscoll provided an extensive (13 page) affidavit in response to the Order directed to her. In the course of her affidavit she said:
a Mr John Jowett had attended to many of the procedural, compliance, financial, and associated tasks and processes of QRTSA - including preparation of budgets, financial reports and minutes of meetings - until his sudden passing about a month following the 2011 AGM;
after that time she did her best to make appropriate notes on issues and motions discussed at Executive Committee meetings but, because of time constraints, was often unable to type up a final draft of minutes prior to the following meeting. As such, it became "accepted practice" that the minutes circulated and adopted at subsequent executive committee meetings were still in the form of her hand written notes;
the task of typing up minutes involved a review process between Bruce Mills and herself so as to ensure that the minutes accurately reflected the full and true events. When the Interim Executive Committee came to office from 1 September 2012 this process continued;
there was a marked decline in attendance at the Executive Committee meetings in the lead up to and following the 2011 AGM. The ongoing ability of the Committee to conduct its meetings relied on quorums being made up of from those physically in attendance as well as various "standing proxies" provided by executive committee members who had agreed to issue them to other existing committee members;
the QRTSA computer server system was replaced in the December 2012 - January 2013 period. Following the transition it became obvious to her there had been substantial and extensive data loss, including emails. The transition had been undertaken by Mr Mills, who had a professional background involving Information Technology, to what was described to her as a "cloud" based virtual system;
in mid to late February 2013 she ceased using that system because of security and other concerns. She removed the remaining relevant files and converted them to hard-copy. This was because she wanted to be sure that QRTSA files "were not able to be illegally corrupted, accessed by un-authorised persons, altered without authority or have versions or drafts of documents (genuine or otherwise) distributed without authority, and other like concerns";
Nick Withycombe, John Edwards and Judy Jiang expressed from the time of the April 2011 AGM "that they did not believe they would have the time to personally attend the QRTSA Executive Committee meetings physically, unless they advised otherwise in advance. As such, it was discussed and accepted, that unless any of them advised me in advance that they were expected to be able to attend an upcoming QRTSA Executive Committee meeting, they were to be taken as unavailable to physically attend per their advice and instead their "Standing Proxies" would be relied upon in lieu";
these "Standing Proxies" were provided on the basis and understanding
they were able to be used;
o to form a quorum; o to vote on any issue or motion requiring decision; o to be used during any form of meeting, including meetings by
way of a "flying minute"; oro to "Move" or "Second" a motion.
it had been the intention of the Committee to contact Mr Withycombe via phone on some occasions, which is why it was stated in some of the minutes that he attended by this method;
it was also understood that Nick Withycombe, John Edwards and Judy Jiang did not require formal meeting-related correspondence unless it was requested (and it was not requested);
in addition to attending the AGM on 18 April 2011 she attended other Executive Committee meetings on 20 July 2011, 19 October 2011, 16 January 2012, 19 June 2012 as well as a Special meeting on 20 July 2012. The (alleged) method of sending out notices of these meetings, the attendance, the location and time of commencement and cessation was referred to in the affidavit;
in addition to her (alleged) attendance at a Special meeting to establish the Interim Executive Committee on 1 September 2012, Mrs Driscoll claimed to have attended other meetings of the Interim Executive Committee as follows:
o 30 November 2012 - Interim Executive Committee meeting; o 30 November 2012 - Extra Ordinary Special meeting; o
12 December 2012 - Special meeting called by Bruce Mills to receive details on the ballot in relation to the deregistration of QRTSA as an Industrial Organisation;
o
19 January 2013 - "Management Committee Meeting" of the Interim Executive Committee, which was convened to discuss requested alterations to the form and content of the QRTSA financial accounts for the year ending 30 June 2012; and
o 24 February 2013 - Extra Ordinary Meeting.
In relation to the de-registration of QRTSA Mrs Driscoll said that an email was sent to all QRTSA financial members on 3 December 2012 to ascertain their views about de-registration of the organisation. Members who did not have a recorded email, or whose emails had "bounced", were telephoned by herself or Mr Mills so that the email could be sent to the correct email address. She did not have a copy of the email transmissions because a large amount of data was lost when the computer system was transferred to a cloud environment at the end of 2012; a copy of the motion sent to the financial members was attached to her
affidavit as Exhibit EJD15; and of the 192 financial members canvassed, 104 members voted, with 102
of those voting to deregister QRTSA.
[36] In the course of his question and answer session with the Industrial Registrar, Mr Mills said that he did not attend any meeting, either in person or by telephone, during which he was appointed to the Executive Committee of QRTSA. The first knowledge he had of any appointment was when Mr Scott Driscoll told him another person had resigned from the Board and he (Mills) had been nominated to take that person's place and "was now on the Board". Mr Driscoll actually joined him up to QRTSA and paid his membership subscription.
[37] Mr Mills said he had been shown a number of draft sets of minutes of meetings in late 2012 which were being assembled to provide to QRTSA's auditor. "So with Mr and Mrs Driscoll I tried to get everything right and everything submitted". The drafts were sent backwards and forwards and modified as necessary. His belief was that "what ended up being submitted was on the word of Mr and Mrs Driscoll of what had occurred".
[38] Mr Mills said he was not in attendance at a meeting allegedly held on 19 October 2011 and therefore did not propose a motion to the effect that Norsefire Pty Ltd be paid a lump sum of $60,000* as settlement to cover losses/damages as a result of some (alleged) decision to the effect there were to be no further annual increases in Norsefire Pty Ltd's management contract with QRTSA. (*It is not clear to me whether this amount is included in the quantum said to have been paid to Norsefire Pty Ltd in the Note to the 2012 financial statements mentioned in paragraph [15] above.)
[39] Mr Mills also said he was not present at a meeting allegedly held on 20 July 2012 when he was recorded as having moved a motion to the effect that the ownership of a Honda CRV be transferred to Norsefire Pty Ltd and be deemed to be part payment for secretariat/administrative fees. Nor did he suggest, at the same alleged meeting, that an amount of $110,000* be paid to Norsefire Pty Ltd to manage trading hours cases TH/2012/2 and TH/2012/3. "It was a past fact when I was informed about it". The meeting did not happen and "those minutes were made up after that date". (*Being paid after 30 June 2012, this amount is not included in the total payment to Norsefire Pty Ltd mentioned in the final sentence in paragraph [17] above.)
[40] According to Mr Mills, minutes of any meetings allegedly held during 2011 and 2012 were created in late 2012 when it became "a case of tidying up after the fact". It was a situation where Mr and Mrs Driscoll acted independently, saying later (in essence) "this is what we've done, we need minutes".
[41] Mr Mills said that at one point in time he agreed that QRTSA could use his business address as its registered office. However, there was no QRTSA equipment stored there and no meetings were ever held there, notwithstanding what was recorded in the minutes of meetings of the Executive Committee provided by Mrs Driscoll.
[42] Mr Mills also said that he heard about the Invalidities application sometime after it was lodged. Mr Driscoll told him that the Invalidities proceeding was a simple matter and it was required because the QRTSA Rules were out of kilter with the legislation. Mr Driscoll also told him that QRTSA needed an Interim Committee to be in place until an election could be held and "the QIRC had approved Leesa and I to be on that Interim Committee". Both Mr Mills and his wife, Leesa, said that neither of them had attended the meeting allegedly held on 1 September 2012 when they were (supposedly) appointed to the Interim Executive Committee.
[43] In relation to the Application to deregister QRTSA as an industrial organization of employers, Mr Mills said he asked Mrs Driscoll in late 2012 whether it was necessary to maintain QRTSA's registration, given the compliance issues involved, when anybody could represent an employer in a trading hours case. The matter was first discussed over dinner in late November 2012 (which was not a formal meeting) following which an email plebiscite was conducted soon thereafter of a list of members given to him by Mrs Driscoll.
[44] Under a covering letter from Mr Scott Driscoll*, as (supposed) President of the United Retail Federation, he emailed all QRTSA members on or around 3 December 2012 to establish their views about continuing QRTSA's registration with QIRC. Mrs Driscoll and (according to Mr Mills) a staff member from Mr Driscoll's electorate office telephoned all of the members to ask them to vote. He was ultimately informed of the outcome by Mrs Driscoll. (*The covering letter provided by Mr Mills was a full and complete copy, as opposed to the version provided by Mrs Driscoll from which all reference to Mr Scott Driscoll - as President of United Retail Federation - had been removed.)
[45] Both Mr and Mrs Mills categorically rejected the contents of minutes provided by Mrs Driscoll which showed they had attended meetings of the Interim Executive Committee said to have been held on Saturday 19 January 2013 and Sunday 24 February 2013. These minutes recorded a large number of matters said to have been discussed and agreed.
[46] In particular, they jointly refuted any suggestions they had been part of any decision to allow Norsefire Pty Ltd to continue to use a QRTSA owned Land Rover Discovery, mobile telephones and computer equipment. Equally, they rejected the contention they had agreed to transfer computer technology and telephones to Norsefire Pty Ltd at nil cost. Rather, they said that Mr Driscoll continued to use the QRTSA Land Rover Discovery, the QRTSA fuel card and a QRTSA mobile telephone well into 2013, notwithstanding his election to Parliament in March 2012.
[47] Finally, Mr Mills disputed Mrs Driscoll's assertion that any QRTSA data transferred to the cloud environment had been lost. He said the only issue raised with him by Mrs Driscoll was that she could not access some emails from a gmail account she sometimes utilised. In Mr Mills' opinion, anything which was "sent" to the cloud should still be stored in that virtual environment. However, because his access had been removed, he could no longer verify which records might remain.
Resumption of proceedings
[48] In light of the information contained in the affidavit's of Mr Edwards, Ms Jiang and Mr Withycombe I conducted an immediate examination of the Registered Rules of QRTSA as reflected in the files held by the Industrial Registrar. My examination of the Rules established there was no provision for proxies (except in one area not relevant for present purposes). I also searched common law authorities, and several journals, and established that proxies were only able to be used where the Rules of a body or organisation specifically provided for their use. As such, I reached the conclusion that any decision allegedly made at any meeting allegedly held since at least 18 April 2011 were null and void and that any payments made by QRTSA to any party - most especially Norsefire Pty Ltd - were made without authority.
[49] Given all of the above, I caused for Mr Hockings' Application for re-opening of the Invalidities proceeding to be re-listed for hearing on 30 May 2013. On that date I was informed by Mr Dorber, who continued to represent Mr Hockings, that a newly- appointed Interim Executive Committee of the QRTSA, formed at a meeting of interested QRTSA members several weeks beforehand, had reached an accommodation with Mrs Driscoll about the re-opening application.
[50] The agreement was that in return for Mrs Driscoll providing the newly formed Committee with all assets, records, property, materials and other physical and documentary materials belonging to QRTSA which she might have in her possession, Mr Hockings would withdraw his re-opening application. It was explained that Mr Hockings' decision was based on both financial grounds and his desire "to salvage the QRTSA and move it forward".
[51] Although agreeing to Mr Hocking's request that he be allowed to withdraw his application I decided, in the public interest, based upon the information which had come to my attention since the proceedings on 26 April 2013, to re-open the Invalidities proceeding in Matter No. RIO/2012/155 on my own initiative pursuant to s 317 of the Act.
[52] Having re-opened the Invalidities proceeding I proceeded to outline all of the information (above) which had come to my attention via the affidavits of Mr Edwards, Ms Jiang and Mr Withycombe, respectively and my examination of ASIC records and records held by the Industrial Registrar. In doing so, I was heavily critical of the actions of both Mr Driscoll and Mrs Driscoll, describing the meetings recorded in the minutes Mrs Driscoll had submitted as "fiction" and "a complete fabrication". I also drew attention to the purported use of proxies by Mr and Mrs Driscoll to convene meetings and to move and second motions to award Norsefire Pty Ltd, a company they controlled, very significant payments. A particular example was the (alleged) "meeting" at which a decision was supposedly reached to pay Norsefire Pty Ltd $60,000 as compensation for the loss of future annual increases in its contract with QRTSA. The "minutes" of this so-called meeting recorded that both Mr and Mrs Driscoll allegedly left the meeting room, because of a claimed conflict of interest, while the proxies remained in the room and voted on the motion previously "moved" and "seconded" by the proxy holder (Mr Driscoll). It was all a total sham. The reality was that QRTSA had become the milking cow of two opportunistic individuals.
[53] Given the totality of the information before me, I announced that I had decided:
to write to the Commissioner for Police asking him to investigate the activities of Mr Scott Driscoll and Mrs Emma Driscoll in relation to the way they conducted the affairs of QRTSA from (at least) 18 April 2011; to refer Mrs Driscoll to the Queensland Police Service for investigation as to whether she swore a false affidavit in response to my Order of 26 April 2013. In announcing such referral I expressed my belief that the contents of Mrs Driscoll's affidavit were false and were designed to mislead me and, arguably, others; and to write to the Speaker of the Queensland Parliament to inform her of my discovery of documents and other information which caused me to believe that Mr Driscoll had misled the Parliament when he informed it of the date of cessation of his involvement in the affairs of QRTSA.
[54] I also announced that having discovered there was no Interim Executive Committee of QRTSA elected on 1 September 2012, as had been put to me in earlier proceedings, I would vacate each and every Order I made during the earlier Invalidities proceeding - including those Orders recorded at paragraph [3] above. In vacating the earlier Orders I explained that I was not prepared to be party to a fabrication.
[55] Finally, in explaining my rationale for referring the matters which had come to my attention to the Speaker and to the Commissioner of Police, respectively, I stated my belief that I had a responsibility as a Judicial Officer to make known to the proper authorities anything which I discovered in the course of performing my duties which I believed constituted a breach of legislation, criminal activity, fraud, whatever it might be.
[56] For the foregoing reasons I made the directions and Orders recorded in the transcript of Matter Nos. B/2013/18 and RIO/2012/155 on 26 April 2013 and 30 May 2013.
[57] I determine and Order accordingly.
[1] On 26 April and 30 May 2013, respectively, I made a number of decisions, rulings and orders on the transcript in connection with several matters concerning the affairs of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA). However, since that time it has become apparent to me that those decisions, rulings and orders need to be committed to writing, together with accompanying reasons.
[2] In the circumstances, given that transcript fully records everything which transpired on the dates in question, I propose to record a broad summary of the issues involved as well as my decisions, rulings and orders and the reasons why they were issued.
Background to Mr Hockings' Application
[3] On 5 December 2012 I issued a Decision in relation to an application by Mrs Emma Driscoll and Mr Bruce Mills in Matter No. RIO/2013/155 (the Invalidities proceeding) made under s 613 (Orders about validity or its effects) of the Industrial Relations Act 1999 (the Act) which had been considered and dealt with by the Commission as presently constituted during proceedings on 10 September 2012. In the course of that decision I declared, pursuant to s 613(2) of the Act, that certain invalidities had happened in the management and administration of QRTSA since 4 August 1996. Having made that declaration, and having considered other provisions of the Act as set out in that decision, I made an Order that:
"a) the following decisions unanimously made by:
President - Emma Driscoll Senior Vice President - John Edwards Secretary - Bruce Mills Treasurer - Leesa Mills Committee Member - Nick Withycombe
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