Reader Weed Out Spin caught this moment of serendipity on the mobile (non-NBN-enabled) device.

Hey Slater and Gordon team, it's a great ad!   My brother in law's buying a house and he could definitely do with a bit of the ole Slater and Gordon magic with the legals.   He works for Telstra, he wants you to allocate the Slater and Gordon partner who'll set him up the Telstra Accounts Receivable Association Inc for him to bank a few lazy Telstra cheques into.   His plan is to get Slaters to accept a Telstra Accounts Receivable Association cheque to pay for about one third of his new house while recording the transaction in the books as if he paid himself!  He also wants the house in someone else's name, so can you knock up one of those flexi-date-flexi-purpose-flexi-Powers-0f-what-you-want-it-to-be for him?   He'll then use the Flexi-Power to sign up for the non-recourse loan-in-another-bloke's name from your firm to finance the purchase.  Not a problem?  You need to do all that without opening a file, without notifying Telstra about the cheque, without charging a cent for the mortgage, without charging a cent for the conveyance and if anyone comes sniffing around - just declare a conflict of interest, cease to act, say it's all privileged, case closed, sorry we lost the file, no one did anything wrong and we've answered all those questions on the record since this issue first arose.   Now, unless you can do all that -  he's going to Maurice Blackburn.

And while we're at it, I saw Slater and Gordon's Facebook page the other day, loved the ad Facebook put next to it - the Conservatives' Conservative Senator Corey Bernardi lending his sponsorship support to the Labor Law Firm.

Yesterday we posted new documents on the blog - copies of a letter from Slater and Gordon to the Industrial Relations Court and a letter from Ralph Blewitt to Slater and Gordon informing the firm that Ralph wished to "maintain privilege" over the conveyancing file.

http://www.michaelsmithnews.com/2013/05/why-hasnt-the-awu-taken-any-action-to-retrieve-the-redundancy-payments-owing-to-it.html

Also included in that post was a copy of the finding and Order of the AIRC as to the sham redundancy payments handed to Wilson and his team to leave the union.   No efforts have been made to get that money back.

Here now contributor StephenJ gives a response to the matters raised in that post.  I've read his piece so permit me a comment in advance.  It seems preposterous to me that the aggrieved party the AWU could bring proceedings in the Industrial Relations Court that relate to it finding out if, how, by whom and by how much it had been ripped off.   Slater and Gordon by August 1996 must have been fully acquainted with the role of the AWU-WRA and the purchase of the Fitzroy house.

I'm at a loss as to how Slater and Gordon could believe that the documents described in the subpoena could trigger a confidentiality obligation to Blewitt of such an 0ver whelming strength as to deny the Court and the AWU the truth as to that purchase.

1.Legal Professional Privilege

Legal Professional Privilege protects from disclosure confidential information passing between a client and their legal adviser if made solely for the purpose of

a) enabling the client to obtain legal advice or

b) with reference to litigation that is actually takingplace or was in the contemplation of the client.

Protected communications can be those made orally.

The relevant purpose is that for which documents are brought into existence not the purpose behind their delivery to the legal adviser.

The Privilege does not protect documents which constitute or evidence transactions such as contracts or conveyances which are not themselves the giving or receiving of advice or part of actual or anticipated litigation. Baker v Campbell (1983) 49 ALR 385.

From the information reproduced on this site on the conveyance file there is nothing that remotely satisfies the principles set out above.

Blewitt can only waive privilege if there is some communication to which it could attach and S&G knowing the contents of the file would not be expected to refer to a privilege which cannot exist.

There are apparently some good reasons, which have been discussed here, why S&G did not want the conveyance examined too closely.

Is this the explanation for Slater and Gordon first making the claim on Blewitts behalf, then producing a letter after contact with him?

2. Redundancies

Any attempt to examine this must be speculative as we are not in full possession of all etails.......however.

For the sake of the discussion I will assume that Ludwig is not the sort of person you would want to cross.  I will assume he is a person who has an appetite for the acquisition of power and its exercise.

Not the sort to let bygones be bygones.

I therefore assume the reason he didn’t enforce the judgement is not that he couldn’t be bothered.

2.1 Factual Context

a) Bob Smith came from the FIME side of the merger between  that union and the AWU.

Smith was on the AWU finance committee and in that function discovered the AWU Members' Welfare Association No 1 account.

He initially made comments that the account disclosed secret commissions and indicated that complaints would be made to Victoria Police.

In fact it was Ian Cambridge who later made complaints to the National Crime Authority which in turn passed the matter onto Victoria Police.

Smith delayed this process by preventing access by Cambridge to relevant information from the Bank after the payment of the redundancies.

b) Within a couple of weeks of the issue being raised Smith and Harrison have arranged for redundancy payments for Wilsons “crew”.

Harrison appears to have been a prime mover in this arrangement which also involved the repayment of approximately $160,000 to various employers who had contributed to the Welfare account over a short period in June /July 1995.

The net redundancy payments by a strange coincidence totalled approximately $160,000.

c) According to Cambridge the Companies that made the payments were largely mystified with their return.

One apparently stated that its payments related to membership contributions for a construction job in Victoria.

Chambers Consulting stated its payments related to the cost of AWU representation on the site of the National Rail Standardisation Project to ensure industrial peace.

In any event Ludwig took successful action to recover these monies.

d) The Victorian Police report stated that the relevant companies had accounted for their payments, that there was no evidence that the Welfare account had been used for private purposes and interpreted the return of money to the companies by order of Wilson/Smith as positive evidence of the absence of dishonesty or criminality.

It concluded that there was no evidence that the payments were of a corrupt nature.

d) Cambridge in a speech to the AWU Qld branch in January 96 recounted many of these events and disclosed that he had discovered an arrangement in which the administrator (PSI P/L) of an industry superannuation fund was making payments of 20% of the fees received from that fund (NSF) to the AWU.

The NSF had in the past been strongly supported by Harrison and the FIME.

The implication is that the “kickback” had been in place prior to the AWU/ FIME amalgamation.

2.2 Some Inferences

a) Smith went from wanting people charged in relation to Secret Commissions to along with Harrison exhibiting extreme haste in arranging bogus redundancies.

A cover up was put in place.

b) It is likely that the return of contributions was part of a pre emptive attempt to assert” no harm had been done” and it seems to have formed part of the subsequent Police position.

However why a robber should be able to avoid conviction by returning stolen funds is not clear.

c) It was incorrect of the Police to say no private use had been made of the funds.

The Town Mode payments at least came from the welfare account and Wilson had tried to empty the account by transferring $160,000 to the Construction Industry fund he and Blewitt controlled.

d) It was beside the point that the Companies had accounted for the payments.

That is exactly what they would be expected to do!

Theiss accounted for the payments on the Dawesville project as legitimate payments for the provision of Workplace Reform assistance which we know never occurred.

In this case we know the payments were justified in 2 cases as memberships and payments for industrial peace .

It is reasonable given the involvement of Wilson and the history of Dawesville to look for other motivating factors.

e) It is reasonable to infer that Wilson's “crew” received the money that would have flowed to them (effectively from the payments made to the Welfare account) in the form of redundancies.

This plus the probable undertaking of those behind the redundancies in the AWU not to press any charges was what Wilson received in return for resigning.

3.Motivations for Deal with Wilson et al

Again some logical conclusions can be drawn

a) Whatever motivated the deal is likely to have involved some factor affecting the FIME side of the organisation.

b) Smith thought Wilson actions involved secret commissions.

A complaint to Police along those lines may have led to an examination of AWU transactions to determine the extent that Wilson had been involved in these activities.

The “kickback” to the AWU of the NSF administration fees may have raised the question of whether these amounts were also secret commissions.

Cambridge despite being on the finance committee only discovered the existence of this arrangement after the redundancies had been paid. It was therefore probably not common knowledge amongst the AWU side of the union.

c)Wilson was involved in other matters that could have been expected to bring the AWU into disrepute ie the $25,000 he received from Theiss in June 1994 to allow asbestos contaminated waste on a Freeway construction (reported in newspapers in 9/95).

The possibility that some of the payments to the Welfare fund may have involved similar considerations must be discounted as a motive for the cover up as Ludwig obtained the refund of these sums.

Further he must have been unconcerned at the time as to secret commissions as the effect of the refunds was to put the Union effectively in the position of having received bribes to modify the performance of its functions.

d) Ludwig having commenced the action had to see it through to a result.

However by that time the following factors were probably in play.

i) The AWU had been the beneficiary of the NSF “kickback” or some time.

He can be expected to have become aware of it at the same tme Cambridge did.

If it involved a secret commission he was now caught up in it.

ii)The  net redundancies  had been paid for by the refunds from the companies.

The loss to the AWU was not as great as it might otherwise have seemed.

iii)Harrison was a person of some influence and political considerations may have precluded Ludwig from taking any action which would have placed him in an awkward situation.

4. Conclusions

That the redundancies were part of a cover up is undeniable.

That the issues involved in it impacted on Harrison and Smith is apparent from the course of conduct.

That Ludwig decided to accept this at some stage is also obvious.

This probably occurred through some entanglement of Ludwig in the considerations that drove the original deal and political machinations.

Something like the NSW ICAC is needed to provide the definitive answers.      Or a Commission of Enquiry as has been promised by an incoming Abbott Government.

Stu of NT, Jane Smith, the Men at Work (not Aust Workers' Union men who don't) and the estate of the late Kookaburra in the old gum tree have joined forces in this Eurovision-anthem-style piece of slush-funded cultural-policy-projecting nation-building multi-demarcation-crossing celebration of the joy of unbridled access to other people's money.   No school-aged child was harmed during the photographic shoot with the Prime Minister and the school community has been offered counselling. If you feel your rights are infringed by this production, call Sam Dastyari to see if you qualify for Sussex Street to pay the legal bills.

The asbestos study that never was is the epitome of bastardry.   According to this report no asbestos study was done - but Wilson had the work bans lifted.

Chambers Consulting state in this report that they paid money to buy industrial peace.  Only Wilson put the money in a slush fund.

And Joe Trio and Nick Jukes then of Thiess say they gave $380,000 of Thiess's money to Wilson and he put it in the AWU WRA account.   Wilson sent Thiess invoices for hours worked by a Workplace Reform Representative.   Only there never was such a worker.   Jukes and Trio however say they got what they paid for.

http://www.michaelsmithnews.com/2012/12/troubles-for-joe-trio-and-nick-jukes-formerly-of-thiess.html

http://www.michaelsmithnews.com/2012/12/the-competenece-diligence-or-honesty-of-nick-jukes-and-joe-trio-can-reasonably-be-brought-into-quest.html

http://www.michaelsmithnews.com/2013/04/some-difficult-statements-for-thiess-executives-to-substantiate-did-you-get-what-you-paid-for-or-did.html

Joe TRIO

Former AWU state secretary Tim Daly, who blew the whistle on the  fraud, claims the Thiess payments were designed to "buy industrial  peace" on a project at a time that construction companies in WA were  experiencing difficulties in dealings with unions.

He says the AWU provided nothing at the Dawesville Cut that the union would not have provided on a major construction project.

Mr Trio denies the deal was done to buy industrial peace. "This was  money paid to the AWU to have their co-operation in training," he says.  "In those days, unless you had the union behind everything that you did,  it was very, very difficult - strikes, intimidation, all of the  nonsense that went on in those days.

"I guess the guys over east thought 'Maybe if we get these (union) guys on side, our training program will run a lot smoother'." (MPS emphasis)

Nick JUKES

In an interview with The Weekend Australian, Mr Jukes says Thiess had  believed its payments were going directly to the AWU and the company  co-operated with the WA fraud squad investigation, handing over all  paperwork related to the 1992 agreement. "They said to us, 'You guys  need to press charges'," he says.

"We said that we hadn't been defrauded; we were given the service by  the AWU,and if this money has gone off to an account that isn't a  legitimate AWU account, this is an issue between the AWU and its  management, not an issue with Thiess.

"They intimated that if Thiess didn't press charges, it would be very hard for them to prosecute.

"We said we didn't understand the logic of pressing charges if we got the service we paid for."

TRIO SAYS HE HAD LITTLE TO DO WITH WILSON, PLENTY OF DEALINGS WITH BLEWITT

Mr Trio says he married Mr Wilson's sister while Mr Wilson was still  in high school. When Mr Trio returned to Perth from the US to work for  Thiess in the early 90s, he says he "discovered" that Mr Wilson had  become an official with the AWU.

He had "very little involvement" with Mr Wilson during the Dawesville  Cut project because the union boss was transferred to Melbourne with  the AWU.

But Mr Trio did have plenty of dealings with Mr Blewitt, Mr Wilson's key ally, who has since admitted his part in the fraud.

He believes Mr Blewitt and other "union thugs" are behind many of the allegations that have circulated against him.

Norm Gallagher was charged with 43 counts of receiving secret commissions totalling about $130,000 from building companies in Victoria in his role as state secretary of the BLF and Federal Secretary of the BLF.  

After successfully appealing his conviction upon his first trial, he was retried and convicted on 17 charges on 3 September, 1986.   He appealed the conviction and the appeal was dismissed by the Court of Criminal Appeal on 27 August, 1987.

The law he was found to have broken is still on the books in Victoria.   I have reprinted here excerpts from the first trial(s) which broadly sets out the facts before the jury and a little of the judgement of the Court of Criminal Appeal in dismissing Gallagher's final appeal against his conviction.

You can find the judgements in R v Gallagher [1986] VicRp 25; [1986] VR 219 (7 October 1985) here and the final judgement of the Court of Criminal Appeal in 1987  here.

R v GALLAGHER

SUPREME COURT OF VICTORIA FULL COURT

YOUNG CJ (1), KAYE (1) and GRAY (1) JJ

4-6, 9-11 September, 07 October 1985

The FULL COURT (Young CJ, Kaye and Gray JJ) delivered the following judgment: The applicant Norman Leslie Gallagher was charged in the County Court with 43 counts of receiving secret commissions contrary to s176(1)(b) of the Crimes Act. He was convicted on 20 counts and sentenced to a total effective sentence of four years and three months imprisonment. A minimum term of three years was fixed before he should be eligible to be released on parole. He now applies for leave to appeal against the convictions recorded against him and against the sentence imposed.

It will be as well at the outset to quote the relevant part of the section of the Crimes Act under which the charges were laid. S176(1)(b) reads:--

"Whosoever being an agent corruptly receives or solicits from any person for himself or for any other person any valuable consideration-- ...

 

(b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business; or

 

...

shall be guilty of an indictable offence."

Next it is useful to set out one of the counts charged. Count 8 may be taken as an example, it being the first count upon which the applicant was convicted. It reads:--

"8TH COUNT: AND The Director of Public Prosecutions further presents that the said NORMAN LESLIE GALLAGHER at Melbourne and divers other places in the said State between the 1st day of June, 1976 and the 30th day of September, 1976 being an agent of the members of the Australian Building Construction Employees and Builders Labourers' Federation corruptly received from FOREST HILL HEIGHTS PTY LTD and EROBIN NOMINEES PTY LTD for himself or another person a valuable consideration to wit the provision of bricks by BRICK AND PIPE INDUSTRIES PTY LTD to the approximate value of $905.52 at premises at Mcloughlin's Beach in the Shire of Alberton in the said State owned or partly owned by the said NORMAN LESLIE GALLAGHER the provision of the said bricks being authorised and paid for by the said FOREST HILL HEIGHTS PTY LTD and EROBIN NOMINEES PTY LTD the receipt or any expectation of which would in any way tend to influence him to show favour or to forbear to show disfavour to any person in relation to his principal's affairs or business."

The case made by the Crown was very broadly that at all relevant times the applicant was the secretary of the Builders Labourers' Federation (a body incorporated pursuant to the Commonwealth Conciliation and Arbitration Act and which we shall refer to as the "BLF") and, to quote the learned Crown prosecutor's opening to the jury, "thus he was an agent of its members". It was alleged that between the years 1975 and 1980 the applicant built two houses at McLoughlin's Beach, one for himself and one for his son. Wayne, and that the houses were substantially built with corrupt gifts of labour and materials from various big building companies. It was alleged that the total value of the gifts so received was over $130,000.

It was common ground that the applicant was at all material times the federal secretary and the Victorian State secretary of the BLF.

The rules of the BLF were in evidence. R11 sets out the duties of the general secretary which are largely of an administrative character, but it also confers upon him substantial authority to act on behalf of the BLF and in certain circumstances on behalf of the federal management committee. R19 is entitled "Industrial Agreements" and should be set out in full. It reads:--

 

"(a) Industrial Agreements may be made, entered into and executed, and may from time to time be altered, varied, modified or cancelled by or on behalf of the Federation by the General Secretary or, where such agreement operates in only State, by the Branch Secretary in that State. "Any Industrial Agreement within the meaning of Conciliation and Arbitration Acts, 1904-1974, or any statutory modification or amendment thereof made, entered into or executed, or any alteration, variation or cancellation thereof, shall be signed by the President and General Secretary.

"(9) Every member of the Federation shall be directly, jointly and severally bound by each and every Industrial Agreement, and every alteration, variation, modification or cancellation thereof made by them on behalf of the Federation, and all and every such members shall be deemed to be a party or parties thereto, as the case may be. Each member shall be supplied with a copy of such Industrial Agreement on application to the General Secretary."

There was evidence that early in 1978 a company named Montvale Developments Pty. Ltd. was engaged as project and site manager for a building at 180 Flinders Street, Melbourne. There was a strike at that site to secure better pay and conditions. One Lewis, who was Managing Director of Montvale, began negotiations with the applicant over the strike, but the negotiations were unsuccessful. They were taken over by one George Herscu who with one Maurice Alter had operated a development company named Hanover Holdings Pty. Ltd. The dispute was settled when Herscu agreed with the applicant to pay the members of the BLF a site allowance of $15 per week. That allowance was an over-award payment and replaced a collection of smaller allowances such as "dirt money" and "danger money" which had been paid in the past. According to Lewis, after Herscu had carried out the negotiations, he told Lewis that the site allowance was $15 and "that we were to arrange some plumbing work for N Gallagher". Further Lewis gave evidence that during the period 1977 to 1981 he was regularly involved in discussions with the applicant on industrial matters involving the members of the BLF.

Herscu gave evidence that he was a property developer and that he employed both Lewis and another witness named Grey. Herscu said that he had been introduced to the applicant by Lewis in about 1977 and that he had negotiated industrial matters with the applicant from that time onwards.

One Maurice Alter who was also a property developer gave evidence. He delegated a good deal of the day to day running of projects to Lewis. He said that he met the applicant in about 1978. He was introduced to the applicant by Lewis and knew that the applicant was secretary of the BLF. He agreed to provide gifts to the applicant as a matter of goodwill and thought it would probably be for the good of his companies if Lewis had a good relationship with the applicant.

There was evidence that in a newsletter issued in 1981 to the members of the BLF the applicant had told a branch meeting of the BLF that he had built the house at McLoughlin's Beach himself. There was also evidence that on a television broadcast over the ABC on 18 September 1981 the applicant had said about allegations that property developers had done work on his and his son's houses that that was a matter they would have to prove. He also said that he had had nothing but support from the whole membership of the BLF.

The applicant made an unsworn statement from the dock. In it he said that he would not have acted contrary to the interests of the members of the BLF in any way. He did not deny receiving the labour and materials alleged, but said that he had made some payments towards some of them and intended to pay for them all. They had all been received in the course of commercial transactions and they would all be paid for in due course. The principal issue for the determination of the jury was whether the Crown had established that the labour and materials had been received as corrupt gifts and not in the course of commercial transactions.

In his summing up to the jury the learned trial Judge said that the Crown had submitted that the jury should be satisfied that the applicant was an agent of the members of the BLF for the making of industrial agreements. The Crown also said that not only was the accused an agent of the members to make industrial agreements which bound the members, that is agreements which were recognized and approved by the Conciliation and Arbitration Commission, but also that the applicant's making of agreements for the benefit of some of the members of the BLF who were working on particular sites was evidence from which the jury might infer that the applicant was an agent of the members of the BLF. Further, counsel for the applicant at the trial, although contending that the Crown had not proved its case, did not really advance to the jury any argument against the proposition that the jury might infer that the applicant was an agent for the members of the BLF.

I'm sure you get the sense of the matters that brought Gallagher before a jury in the County Court.

The controversial matters argued at trial and appeal centred on Mr Gallagher's duty as agent of the members of the BLF - his duty was to them and their benefit, not to enriching himself.

There was considerable argument about the meaning of corruptly receiving the gifts or commissions. Ultimately if Gallagher believed that the gifts or commissions were secretly given to cause him to be favourably disposed towards the building companies - that was corrupt.

Finally on appeal much was made of publicity of the matters in the trials and that publicity affecting the jury's ability to ponder only the evidence it heard in court.   The court of appeal held that the jurors in the final trial were properly instructed, and were of sufficient intelligence to act only on the Judge's instructions.

Thanks Muso - when you look at it this way, there really has been quite a lot of them!

His Honour Justice Michael Kirby AC CMG delivered judgement in the matter of 

Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation [2008] HCA 21 (22 May 2008)

We owe a debt to Justice Kirby for the clarity and ease of understanding he brings to this real-life explanation about sham transactions.

While Justice Kirby canvasses many authorities in developing the meaning and application of "sham" for the purposes of Australian law, I found this definition put by LockhartJ to make a lot of sense:

"A 'sham' is ... for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive."

So having worked out that a transaction, or a contract - or indeed an incorporated legal entity is a "sham" - how does the law view transactions made under those "sham" arrangements?

If the documents evidencing a transaction are shown to be intentionally deceptive, false and misleading, they are "inherently worthless, and ... no enactment [is needed] to nullify [the transaction]"[158]. In other words, when the documents amount to a sham, they are ignored. They fail to achieve their purported objectives. The law then gives consequence to the true transactions, as revealed by the evidence

It is difficult to imagine what evidence could be led to support a contention that the Australian Workers' Union Workplace Reform Association was what it purported to be. I believe it was a sham entity - thus the true effect of the transactions it engaged in - and not a literal reading of the agreements, invoices and flow of money through the Association accounts - would be considered by our courts.  That is that Bruce Wilson received and took control of money unlawfully from Thiess as a secret commission.

The Stalking Of Julia Gillard: How The Media And Team Rudd Contrived To Bring Down The Prime Minister

by Kerry-Anne Walsh

SYNOPSIS

This is the story of one of the most extraordinary episodes in recent Australian political history, of how a powerful media pack, a vicious commentariat and some of those within her own party conspired to bring down Australia's first woman prime minister.

http://www.bookworld.com.au/book/the-stalking-of-julia-gillard-how-the-media-and-team-rudd-contrived-to-bring-down-the-prime-minister/40187246/