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TOPIC: AWU Scandall File Download

AWU Scandall File Download 1 month 1 week ago #3436

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michaelsmithnews.typepad.com/files/wilso...ntral-letter-etc.pdf

Page 7 Handwritten note p1

B. Wilson 14.8.95

1.10pm

Attended w B.W. pastedGraphic.png

Advised unable to act on his behalf b/c not prepared to be party to misleading union re WR Assoc. monies.

Very worried. Thought this meant we wld tell.

Advise him that cld not tell anyone. Completely prohibited.

Legal Prof. Priv.

Different thing tho to sit idly by or co-operate with it including?? acting for him. pastedGraphic_1.png



Furthermore, he had lied to us about WR Assoc. He had instructed us to set it up.

SG.005.0136



Page 8 Handwritten note p2

, he had then received monies into it improperly.

Then he had spent the monies improperly.

Lied to us and involved us in criminal wrongdoing, re the house.

Partners very angry about that.

Cld not act for him. Wld give him a letter that day which set this out.

He concerned re letter being posted or even couriered.

I said I wld hand deliver it.

SG.005.0137



Page 9 Handwritten note p3

Suggested another solicitor.

Spec. in crim. law.

?? not apparently interested. pastedGraphic_2.png

SG.005.0138





Page 10 Letter from Bernard Murphy to BW

BM:IU

14 August 1995

Re: possible criminal prosecution

(Handwritten note) Original of this letter read by Paul Henderson 14/8/95 and hand delivered to Wilson at above address in Hendersons presence on 14-8-95. Signed ??


SG.005.0139

BM6.14B/6



Page 11 Handwritten note

14/8pastedGraphic_3.png

J.C. rang back. Concerned how our withdrawal was really b /c we were embarrassed about Wilson’s commitment to resignation/package and out of union.

Advised it was nothing to do with that & that I understood Wilson committed to leaving union with packages, with others.

Said I had spoken to Wilson about speaking to him directly

& he wld call him.

SG.005.0140



Page 12 Handwritten note

14.8

1.50

J.C.

Advised unable to continue to act.

Possible conflict – we act for union.

BW accused of misapp.

Did not feel comfortable.

Said had advised Wilson & he unhappy but wld prefer to deal with J.C. direct than Smith.

Did not currently intend to get another lawyer.

SG.005.0141



Page 13 Handwritten note

14/8

Peter McCarthy

Advised that developing view re conflict of interest. Wld not be attending at bank. Did he have bank statements? He will fax to J.C. and I said I wld get BW to pick up a set.

Indicated to him that my conflict was us acting for union and for him.

SG.005.0142



Page 14 Telephone message (Incoming)

14/8

BM

Caller: Peter McCarthy

Phone: 675 6293 Time 11.40

Message:

RYC

Spoke to John Cain. Hopes to have the ?? this afternoon

Details of the audits to a/c

Will fax bank statements to us.

30-6-95 Welfare??

– to union

– Re Election Fund

8-2-95 to now

pastedGraphic_4.png

SG.005.0143



Page 15 Telephone message (Incoming)

10/8

BM

Caller: Peter McCarthy From: Commonwealth Bank

Phone 675 6293 Time 2.20

RE: Matter name:- AWU

Message: T/O McCarthy 14/8

* Getting withdrawals & deposits is not a simple task

* B/W 27 June & 10/

- Leave him ?? 1pastedGraphic_5.png

T/O McCarthy 14/8



SG.005.0144



Page 16 Telephone message (Incoming)

14/8

BM

Caller: Peter McCarthy From: CBA

Phone 675 6293 Time 10.55

MESSAGE: T/O left message

SG.005.0145



Page 17 Telephone message (Incoming)

10/8

BM

Caller: Peter McCarthy From: CBA

Phone 675 6293 Time 4.00

RE: Matter name:- AWU

MESSAGE: Please call b4 4.20pm

SG.005.0146



Page 18 Handwritten note

John Cain 10/8/95


Hasn’t spoken to Harrison.

Smith has.

Getting messages very strongly to that effect
Try and make it as simple as possible
Agreement b/w Wilson and union

- ??AllegationspastedGraphic_6.png

- Decided to resign

- Resc termpastedGraphic_7.png



SG.005.0147



Page 19 Handwritten note

Ralph Blewitt

Jim Collins

Mark Barnes

Bill the Greek Telikostoglou

Marie Murray Glen Cleghorn – Canberra

___

Sam Wood – org Melb

? Helmut Gries – org Melb

Steven Booth – Ind ORF – NSW

Lauren Godfrey – Org NSW

Tom Blacker – org NSW

Michael Barwick - Ind ORF Melb

Craig Wute - Ind ORF pastedGraphic_8.png

Miles Rix – org Melb

Mick Young – org Melb

Phil Tuck – org Melb

Wayne Hem – office person

___

Christine Campbell – office person WA

Lindsay Harris – org

Mike Weller – org

None elected

SG.005.0148



Page 20 Handwritten note p1

10/8

Meeting John Cain (??) 9.00 pastedGraphic_9.png

Discussed problem. J.C. indicated money for employees was arguably secret commissions
Said his client’s requirement was that Wilson resign office, m’ship in union. If not he would be charged internally, there wld also be press & matter likely to find its way to police. (Careful not to specifically threaten police charges)
Indicated after taking instruction that Wilson wld resign but wanted the standard AWU package.



Wilson concerned about press & possible police charges even if he left. J.C. felt this was unlikely

SG.005.0149



Page 21 Handwritten note p2

We to speak to Harrison and Smith. pastedGraphic_10.png

Indicated possibility of others going if Wilson went. In fact, Wilson had said he would not resign unless those who supported him also left given standard packages.

SG.005.0150



Page 22 Handwritten note

(missing line)

Ludwig may at BW and my request.

He had been in meeting at Mt Isa all day.

Advised that BW wanted to resign and take standard package.

Wanted Ludwig’s assistance in this.

Ludwig not interested in assisting.

Not interested in being involved in negotiations. Had spoken to Cambridge and told him to brief R Kenzie to have a go at Harrison & Smith

Same view as earlier re nothing wrong with political donations. Told him highly likely Wilson wld resign following day

SG.005.0151



Page 23 File note p1

File note 9/8/95

In conference with Hinkley

Wilson told me for first time of the Workplace Reform Association account in WA.

Said that the monies from the account had been misspent on a no. of things he did not want to tell us about.

Indicated that if ?? a/c ever investigated he wld go to jail & so would other officials. pastedGraphic_11.png

No further discussion re this in conf with Hinkley except agreed with Hinkley that I wld contact John Cain from MB

SG.005.0152



Page 24 File note p2

on behalf of Wilson to negotiate a redundancy package + resignation for Wilson in the hope that if he left there wld be no further investigation.

---

Had a coffee at ?? with Wilson immediately after conf. He told me then that S&G had set up the W.R. Association on his instructions as an election fund. & Also said that WR Assoc monies misspent by he and Blewitt on purchase of 1/85 Kerr St. pastedGraphic_12.png

Very concerned. Told him that glad he had made his decision to resign already b/c this issue wld affect my ?? pastedGraphic_13.png

SG.005.0153



Page 25 Handwritten note

Woodside

Managements commenced in early 94
Mike Forshaw, Chris Hayes and myself
A lot of payments made
NCB – real q’s of survival

- moneys of NCB being banked by other branches. People

- Ralph B asks “what to do with cheque in Feb 95”. I told Ralph to leave it in safe, & worry about it later.

- (same with January payment from John Holland for $3000)

Feb-Mar 95 wld NCB survive

can’t challenge

April 95 – Elections

SG.005.0154



Page 26 Handwritten note p1



Branch has no money at all.

Th



Financial Dissarray – Auditors report pastedGraphic_14.png

– NCB being ripped off by other branches

– Our super not being paid

– Hosp. benefits not being paid

– Peoples monthly letters

– No Bills being paid. Creditors demanding money

– Nat. Office delayed paying people

SG.005.0155



Page 27 Handwritten note p2

– Nat Office Building not sold. Had been told that if not sold by August then Bank wld foreclose.

We discussed what we might do if the whole union went “into liquidation”.



Why don’t we open a new account on 13 June ’95?

Had old Vic AWU Account (General A/C) still in existence. Employers putting monies in & NCB operating it.

However knew it would not be operating



From 6 March, thru April 1995 I was asking for cheques & deposit books. I did not get them until early May 95. Hitchesen played “ducks + drakes” with us. pastedGraphic_15.png

In period from 6 March to early May 1995 I did not bank these monies in that account. because union was broke.

SG.005.0156



Page 28 Handwritten note p3

raised it, it would have gone instantly.

In this period 6 withdrawals from ?? AWU working Account – Biggest one $7000 to finish the renovations. pastedGraphic_16.png

In early May 95 finally got cheques & deposit books for NCB. I drew only emergencies from this. That is all I could have got anyway. Things like Telecom when phones were being cut off.

By mid May clear central funding is all over, with people just drawing cheques out of central fund with no a insufficient ?? pastedGraphic_17.png

8 June 1995 – Finance Ctee where each Branch stands on its own 2 feet. Each Branch runs own A/C. Suggestions of wrongdoing building. Huge argument. I speak

SG.005.0157



Page 29 Handwritten note p4

(missing line)

I think to myself that I will start to have to use their monies. pastedGraphic_18.png

I had been having discussions with the C/W bank to try & get $200,000 overdraft & working account transferred to us. Bank said we couldn’t have a/c transferred to us. Said needed new A/C, & if got $200,000 overdraft it wld have to be authorised by Nat. Officials & they would have to tell them Bank what “security” wld be.

I couldn’t put it into old Vic account until this fixed up.

When I couldn’t organise this I went

SG.005.0158



Page 30 Handwritten note p5

(missing line)

1995. Started trading on it then we used that for membership dues.

B/W 8 June 1995 +

Letter from Cambridge saying those Branches having C/W Branches cld continue to use them provided they had a “Negative transaction” agreement with Bank of NSW to remit the 23% to the National Offices.

The account opened on

On 3 July 1995 the National Office opened the new decentralised accounts for each Branch from A Bank of NSW A/C for our use. 1. No good to us b/c throughout ?? can’t bank into it. 2. Still ?? the 23% problem pastedGraphic_19.png

SG.005.0159



Page 31 Handwritten note p6

(missing line)

the earlier deposits made + banked again in the election account. I did not think about it. Everything was a schemozzle.

Still hadn’t finished negotiations with the C/W Bank re use of old Vic AWU account. Not until 8/8/95 did it become clear that we wld have to give the C/W Bank away.

What was your plan with this money?

Once I had established the NCB & it was clear that would happen, then we would transfer the Union monies into it.

At Finance Ctee on 19/6/95 (I think, there was discussn about setting up separate a/cs

SG.005.0160



Page 32 Handwritten note p7

(missing line)

WA $300,000 from Thiess

an incorporated association

The $20,160 cheque from Thiess was made out to this association.

However, it could lead back into these other drama’s.

There would be a problem re “secret commissions” with this. Money spent on all sorts of things

The “AWU Workplace Reform Assoc” account closed in April ’95. It operated out of

SG.005.0161



Page 33 Telephone Message (incoming)

9/8

Caller: Bruce

Phone: 9639 1655 Time: 2.00

MESSAGE: See fax – please call

Ian Cambridge – 018 647 597

SG.005.0162



Page 34 Facsimile Message

Bernard Murphy

Date: 9 August 1995

To: Bob Smith

Bruce Wilson

From: Ian Cambridge

SG.005.0163



Page 35 AWU-FIME Letter

Letter to Peter McCarthy from Ian Cambridge

SG.005.0164



Page 36 AWU-FIME Letter p1

Letter to Bruce Wilson from Ian Cambridge and Steve Harrison

SG.005.0165



Page 37 AWU-FIME Letter p2

Letter to Bruce Wilson from Ian Cambridge and Steve Harrison

SG.005.0166
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AWU Scandall File Download 1 week 5 days ago #3458

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Slater and Gordon's confidential legal advice from Geoff Masel of Philips Fox on $67,000 cheque from slush fund
Saturday, 14 October 2017

Slater and Gordon - you missed one, you'll find it published here in Part Two of this post.

First the background and context.

11 October 2012 - Ralph Blewitt, publicly disclosed serious indictable offence re power of attorney - transcript here

12 October 2012 - PM Gillard asked for her side of the story, she did not respond.

17 October 2012 - Formal crime report to the Chief Commissioner of Police in Victoria, the report was actioned that day and and action confirmed in writing.

Over the next few months extensive discussions with police and potential witnesses.

23 November 2012 - Ralph Blewitt made 3 statements to Victoria Police under the penalties of perjury and without any immunity from prosecution.

16 January 2013 - Victoria Police detective attended at Kawana Waters police station in Queensland and interviewed Olivia Palmer (nee Brosnahan, the paralegal executive from Slater and Gordon)

January 2013 Victoria Police command approved Operation Tendement and allocated about 8 detectives to it. Detective Sergeant Ross Mitchell was appointed to head the team and to investigate the offences disclosed in the AWU Scandal.

May 2013 Ross and his team had tracked down most of the witnesses, taken dozens of new statements and collected a heap of evidence.

15 May 2013 Magistrate Martin directed police pursuant to this warrant:

Screen Shot 2015-11-20 at 4.46.30 am



5 Jun 2013 police were satisfied that Slater and Gordon had complied to the extent possible with the terms of the warrant.



Screen Shot 2015-11-20 at 4.47.23 am

This is the Result of Search report for return to the Magistrate who issued the warrant.

Screen Shot 2015-11-20 at 4.46.43 am

5 June 2013, the Wilson box and the Slater and Gordon envelope were sitting in the Magistrates' Court chambers pending resolution of the claim of client legal privilege.

19 June 2013 Ralph Blewitt formally waived any privilege he may have been able to claim.

Screen Shot 2015-11-20 at 4.56.21 am

July 2013 Bruce Wilson engaged the Public Interest Legal Clearing House to fund expensive legal representation for himself.

July 2013 the PILCH referred and funded Wilson to engage the firm of Lewenberg and Lewenberg to pursue a claim of privilege for Wilson as Slater and Gordon's client.

www.michaelsmithnews.com/2013/09/bruce-w...eductible-gifts.html

www.michaelsmithnews.com/2013/09/wonder-...-pilch-together.html

6 August 2013 Slater and Gordon served a Writ in the Supreme Court seeking orders for the return of all the Slater and Gordon documents over which it had made a claim of client (itself, the partnership) legal professional privilege.

On 26 August 2013 the Supreme Court heard Slater and Gordon's application. It was not contested by police. Here are the orders.



Screen Shot 2015-11-20 at 5.08.11 amScreen Shot 2015-11-20 at 5.08.18 amScreen Shot 2015-11-20 at 5.08.27 am

28 August 2013 Ross Mitchell applied to the Melbourne Magistrates' Court for this order in relation to the Wilson material:

Screen Shot 2015-11-20 at 5.11.49 am



September 2013 Federal Labor Attorney General Mark Dreyfus QC announced $4M in extra funding for the PILCH.

www.michaelsmithnews.com/2013/09/smack-b...with-some-money.html

9 December 2013 Chief Magistrate Peter Lauritsen handed down this written judgement:

resources.news.com.au/files/2013/12/09/1...-aus-file-wilson.pdf

He said any claim of privilege over any of the hundreds of documents in the Wilson file was extinguished

Screen Shot 2015-11-20 at 5.18.08 am

Ross Mitchell should have been quicker off the mark. He had the right to take the box then and there, but he's a lovely bloke and a gentleman.

19 December 2013 Wilson and his legal team lodged an appeal in the Supreme Court using other people's money.

Screen Shot 2015-11-20 at 5.20.42 amScreen Shot 2015-11-20 at 5.20.53 amScreen Shot 2015-11-20 at 5.21.31 am

On 13 June 2014 the Supreme Court heard Wilson's appeal.

On 14 June 2014 that same day the Supreme Court ruled against Wilson in relation to the suppression of Mitchell and others affidavits.

resources.news.com.au/files/500/537/184192-aus-file-awu-1.pdf
Police affidavits build fraud, conspiracy case against Bruce Wilson et alRoyal Commission

VICTORIAN detectives believe former AWU boss Bruce Wilson was involved in fraud and conspiracy when he created a secret slush fund with legal assistance provided by his then girlfriend, Julia Gillard.



On 8 July 2014 Wilson got up on his appeal. The matter was sent back to the Magistrate to be re-heard.
Wilson v Mitchell (No 2) [2014] VSC 332 (8 July 2014)

Last Updated: 14 July 2014

IN THE SUPREME COURT OF VICTORIA
Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 6594 of 2013
BRUCE WILSON
Appellant

v

DETECTIVE SERGEANT ROSS MITCHELL
Respondent

---
JUDGE: T. FORREST J
WHERE HELD: Melbourne
DATE OF HEARING: 13 June 2014
DATE OF RULING: 8 July 2014
CASE MAY BE CITED AS: Wilson v Mitchell (No 2)
MEDIUM NEUTRAL CITATION: [2014] VSC 332

---

EVIDENCE – Appeal from Magistrates’ Court decision to release documents – Client legal privilege – Exceptions for documents produced in the furtherance of a fraud – Hearsay – Whether open to conclude that it would result in undue expense or delay to call author of hearsay evidence on bar table assertion that author lived in Malaysia – Admissions - Evidence Act 2008 ss, 64, 75, 118 and 125.

---
APPEARANCES: Counsel Solicitors
For the Appellant Mr D. Aghion with

Ms A. Haban-Beer
Lewenberg & Lewenberg

For the Respondent Mr R. Gipp Victorian Government Solicitor’s Office



HIS HONOUR:

Introduction

1 In May 2013, a search warrant was issued by a Magistrate[1] which authorised police to search and obtain documents at the offices of Slater & Gordon solicitors (‘S & G’). A file known as the Bruce Wilson file was produced under the warrant, sealed and placed in the custody of the Court Registrar.

2 Detective Sergeant Mitchell, the respondent to this appeal, applied to the Magistrates’ Court for the file to be released to police investigators. Mr Wilson, a client of S & G, maintained a claim of client legal privilege over the file. The Magistrate hearing the matter determined that, to the extent that the contents of the file were properly the subject of client legal privilege, the privilege was lost because the relevant documents had been prepared in furtherance of the commission of a fraud.[2] His Honour ordered that the file be provided to police. Mr Wilson seeks to appeal that order under s 109 of the Magistrates’ Court Act 1989.

3 Section 109 provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court on a question of law if the order appealed from is a ‘final order in that proceeding.’ The appeal is not a rehearing – it is a stricto sensu appeal.[3] For the appeal to succeed, it will be necessary for the appellant ‘to identify a relevant error of law made by the Magistrate before he is entitled to relief from this Court.’[4] The appeal must be determined on the basis of the materials before the Magistrate and the law as it existed at the time when the original order was made.[5]

4 It is not disputed that the original hearing was a ‘civil proceeding’ within the meaning of s 109. It is also clear that the Magistrate’s order is a final order within the meaning of that section.[6]

This Appeal

5 The appellant raises two questions of law:

(1) Whether the learned Magistrate erred in law by admitting into evidence three hearsay statements of Ralph Blewitt made 23 November 2012 (‘the Blewitt statements’). There are three bases upon which error under this head is said to be made out –

(a) Failure to serve a hearsay notice under s 67 of the Evidence Act 2008 (‘The Act’);

(b) Failure to comply with s 64(2) of the Act. It was not open to his Honour to conclude that calling Mr Blewitt would cause undue expense, delay or be reasonably impracticable; and

(c) Failure to exclude the Blewitt statements under s 135 of the Act.

(2) Whether the learned Magistrate erred in law by admitting into evidence, or if not admitted, by relying upon in his reasons, transcript of an interview between the appellant and an ABC news reporter.

6 I shall set out a brief factual background to this appeal. In 1991, Bruce Wilson was the Secretary of the Western Australian branch of the Australian Workers Union (‘AWU’). Ralph Blewitt was his assistant secretary. The police allege that Blewitt and Wilson engaged in a fraud practised upon the AWU and Thiess Contractors Pty Ltd (‘Thiess’), a large engineering contractor. In short compass, it is alleged that Wilson and Blewitt, ostensibly acting on behalf of the AWU, negotiated a site agreement with Thiess over the life of the very large Dawesville Construction Project. Thiess agreed to pay and did pay for a ‘Workplace Reform’ adviser. This person was to be an AWU member paid $35.00 per hour for a maximum of 56 hours per week. Thiess also agreed to pay an additional $2.00 per hour to AWU workers in return for a ‘no extra claims’ agreement from the Union.

7 The allegation is that monies paid by Thiess for these purposes were appropriated by Wilson and Blewitt. It is alleged that a body known as the Australian Workers Union – Workplace Reform Association Inc (AWUWRA) was established by Wilson for the purpose of receiving the Thiess payments. The payments were kept secret from the AWU and the funds were ultimately appropriated by Wilson and, to a lesser extent, Blewitt.

8 The substance of these allegations was put before the Magistrate at the initial hearing of this application in September 2013. At that hearing, Mr Wilson maintained his claim of client legal privilege over the file. The applicant sought to prove that the relevant documents had been prepared in furtherance of the fraud by filing an affidavit sworn by Detective Sergeant Mitchell in which he outlined the progress of the investigation including representations said to have been made by various witnesses. This material was clearly hearsay, objected to by Mr Wilson, and ultimately not acted upon by his Honour.

9 The matter was adjourned to enable the applicant to assemble admissible evidence in support of its fraud allegation. On 2 December 2013, the hearing resumed. The applicant tendered affidavits from the following witnesses:

(a) Detective Sergeant James McDonald which exhibited three statements made by Ralph Blewitt on 23 November 2012;

(b) Detective Sergeant Mitchell exhibiting a transcript of an interview between Bruce Wilson and a reporter from the 7.30 Report;

(c) Mr Nicholas Jukes;

(d) Mr Joseph Trio;

(e) Mr Ian Cambridge; and

(f) Mr Michael Smith, which exhibited a USB memory stick on which was a recording of a conversation between Ralph Blewitt and Mr Smith.

The exhibits to (a) and (b) above are the subject of the appeal grounds.

10 Counsel for Mr Wilson objected to reception of the Smith, McDonald and further Mitchell affidavits on the basis that the representations contained within the exhibits to those affidavits were hearsay. Counsel for the police, Mr Gipp, did not dispute that the representations were hearsay, but contended that hearsay was permissible in this type of proceeding or that exceptions to the hearsay rule permitted the Court to receive the evidence.

Appeal Ground 1 - Did his Honour err in admitting into evidence the three statements of Ralph Blewitt?

11 Client legal privilege is a fundamental principle of the common law. It enhances the administration of justice by facilitating the representation of clients by their legal advisors.[7] Clients can only consult their lawyers with ‘freedom and candour’ within the protection afforded by the privilege.[8] The privilege ought not readily be set aside, and if it is to be set aside, then only on the basis of admissible evidence.[9]

12 If the Blewitt statements were properly admitted into evidence on the application, then on their face they prove the fraud and thus client legal privilege attaching to the relevant documents will be lost. Mr Gipp argued to his Honour that these hearsay statements were admissible in this type of proceeding and any weight to be given them was a matter for his Honour. No authority was advanced for this proposition and, in my view, his Honour correctly rejected it. The proceedings were not interlocutory in nature and s 75 of the Act was not engaged. As I have said, the removal of client legal privilege is a final determination of a fundamental legal right.

13 Mr Gipp’s fall-back position was ultimately accepted by his Honour. He submitted that the Blewitt statements, whilst hearsay, were admissible under s 64(2) of the Act, that there were reasonable grounds for finding that a fraud had taken place, the relevant privileged documents were prepared in furtherance of that fraud and thus client legal privilege attaching to those documents had been lost.

14 His Honour reasoned as follows:

(a) some of the documents within the file were properly the subject of client legal privilege;[10]

(b) the Blewitt statements were hearsay but admitted through the s 64(2) exception to the hearsay rule;

(c) there were reasonable grounds for finding that a fraud had taken place;

(d) the relevant documents were prepared in furtherance of the commission of that fraud; and

(e) any client legal privilege attaching to those documents is lost and the whole file should be released.

15 His Honour’s reasons demonstrate that he relied heavily on the Blewitt statements in proof of the fraud. The statements proved the background to the fraud, the setting up of the AWUWRA its ostensible objects and its true purpose, Thiess payments to the AWUWRA and the appropriation of those funds by Wilson and Blewitt. His Honour concluded:

(t)he evidence of Blewitt establishes that Thiess was deceived. It believed it was paying for a particular service. The Association provided no such service. Wilson bought a home with some of the Thiess[11] payments. Only he knows what happened to the rest.

16 As I have said, his Honour admitted the three hearsay Blewitt statements through the evidentiary gateway of s 64(2) of the Act. It is common ground that the three statements contained previous representations about asserted facts made by Ralph Blewitt, who was available to give evidence about those facts.[12] Section 64(2) provides:

The hearsay rule does not apply to:

(a) ...

(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not reasonably be practicable, to call the person who made the representation to give evidence. It ought be noted that the party seeking to adduce the hearsay evidence is required to give notice to other parties in accordance with s 67 of the Act.

17 The only evidence about Mr Blewitt’s availability and whereabouts came from the first Mitchell affidavit:

Blewitt, who resides in Malaysia, wished to come forward and make a ‘full and frank’ statement ...[13]

Mr Gipp at both the Magistrates Court hearing and on this appeal contended that this was sufficient to engage s 64(2) of the Act. His Honour agreed with this submission and ruled as follows:

...it would seem to me to involve undue delay if such a (notice) requirement was made and secondly undue expense in the context of what we are dealing with.

His Honour ruled that he would admit the statements ‘in the absence of the maker ... [and in] ... the absence of notice under s 67.’

18 Mr Aghion who appeared with Ms Haban-Beer for Mr Wilson submitted to this court that it was not open to his Honour to make these findings.

19 Any consideration of whether expense or delay is undue requires consideration of the significance of the impugned asserted facts said to be proved by the representations and the nature of the proceedings.[14] In Caterpillar Inc v John Deere Ltd (No 2), Heerey J, while considering ‘undue expense’, considered these matters relevant:

the actual cost of securing the attendance of the witness;
a comparison of that cost to the value of what is at stake in the litigation; and
an assessment of the importance of the evidence the witness might give.

Whether a delay is undue will depend not just on the delay itself but also upon what is at stake in the litigation.

20 In my view on the material before him, it was not open to his Honour to conclude that to call Blewitt as a witness would involve undue cost, delay or be reasonably impracticable. The issue at stake was far from trivial and the Blewitt evidence was central to the application. I consider that the mere assertion by a party that a witness resided in Malaysia is insufficient to establish this exception. Audio-visual links are a fact of modern litigation.[15] Had the police served a s 67 notice of its intention to rely on s 64(2), it may well have been a simple matter to secure Mr Blewitt’s attendance for cross-examination via an audio-visual link.

21 It follows that I consider that s 64(2) was not engaged as an exception to the hearsay rule and thus the Blewitt statements, on the material before the Magistrates’ Court, ought not to have been admitted into evidence on the application.

22 It is unnecessary to consider the failure to serve a s 67 notice as a separate ground. It is also unnecessary to determine the s 135 discretionary argument mounted by the appellant. It was not argued at all in the Magistrates’ Court and pursued with little enthusiasm before me.

Appeal Ground 2 – Was the transcript of an interview between the appellant and an ABC news reporter wrongly admitted?

23 The short answer to this question is no. The appellant gave an interview to the ABC’s 7.30 Report on 27 November 2012. It is clear that his Honour relied on certain aspects of this interview as providing admissions against the appellant’s interests:

Then there is the remarkable interview ... (given) ... to the 7.30 Report. There Wilson admits the Association’s purpose was to fund election campaigns. There is no mention of “Workplace reform”. He even ponders whether he used the expression “slush fund” when speaking to solicitors. He then admits using its moneys to buy the property, justifying its use by saying it was not union money.

24 The term ‘admission’ is defined in the dictionary to the Act. Relevantly, an admission is a representation made by a party to the proceedings and adverse to the maker’s interest in the outcome of the proceedings. Although his Honour did not explain the basis upon which he admitted the transcript of the interview, it is abundantly clear that it was admitted pursuant to s 81 of the Act. The hearsay rule does not apply to evidence of an admission. It did not apply to the transcript which was correctly admitted as an admission and thus as an exception to the general hearsay rule.

Conclusion

25 In discussion Mr Gipp urged upon me that even if I were to find the Blewitt statements ought not to have been admitted on the application, the balance of admissible evidence including the ABC interview was sufficient for a finding of fraud in the terms of s 125 of the Act.

26 Whilst there is a pragmatic attraction to this course, as I have observed earlier in these reasons, this is an appeal stricto sensu and not a rehearing. The Blewitt statements were inadmissible and I am unable to say whether, but for those statements, his Honour would have been satisfied as to the existence of the fraud.

27 In my view it is appropriate to remit the matter to the Magistrates Court for rehearing on the evidence that was properly before the Court on 2 December 2013. It is also appropriate that the matter be heard by the Magistrate who determined the matter originally as his Honour is well acquainted with the material and arguments. I can see nothing in either the transcripts of the hearing or in his reasons that ought preclude his Honour from rehearing the matter in this way.

28 I will hear the parties as to the proposed form of orders.

ENDS

By this time all concerned were thoroughly pissed off with the whole process.

On 23 September 2014 Chief Magistrate Lauritsen reheard Mitchell's application

www.michaelsmithnews.com/2014/09/wilsong...is-thread-today.html

By consent, the police and Wilson's representatives agreed that orders should be entered so that 290 documents would be handed to police.

72 documents, which related to the interactions between Wilson and Slater and Gordon once he got sprung with his hand in the till in Jun/July 1995 were allowed to be marked as privileged and were given back to Slater and Gordon.

www.michaelsmithnews.com/2014/09/290-doc...ivilege-hearing.html

So now you know.

www.michaelsmithnews.com/2014/09/290-doc...ivilege-hearing.html



I have spent the past couple of days making diligent and I believe complete enquiries about the law in this matter.

In Part Two of this post I'll publish the document Slater and Gordon missed.

Posted at 04:34 PM | Permalink | Comments (12)

Comments
hillbilly33 said...

Hi Michael. IMHO, it's important to establish in what capacity Geoff Masel's advice was being sought by Slater & Gordon. As I understand it, Philips Fox were the solicitors for the insurers of the Solicitors Guarantee Fund in the matter of Professional Indemnity. Basically, if my recollections are correct, an Insurance Company also goes Guarantor for the Solicitors Bond paid out in event of a successful claim.

The claims record of lawyers was so horrific in many jurisdictions round Australia it was becoming increasingly difficult and very expensive to get Insurance Cover.
From my own research around that era, I know the Victorian Law Institute had brought in a requirement that Firms facing possible claims were required to contact solicitors for the Insurance Company Guarantors as soon as possible with a view to try and minimise or avoid any possible claim.

One would have to know the full circumstances as to whether it was a complication or a conflict of interest that Philips Fox also acted for Woodside, who made quarterly payments of $19,500 to the AWU re Wilson, which he appeared to be able to control and bank where he liked.

Where a firm is at fault in a successful claim, the insurers have a right and indeed, a duty to their own shareholders to sue the firm for recovery of any moneys paid out.
Reply Saturday, 14 October 2017 at 06:40 PM
Tom said in reply to hillbilly33...

I can remember when the Gosfordvzlegues Club was doing extensive building work Gosford City Council did not inform its insurer Statewide Mutul Insurance in writing. About certain details. There was a problem getting compliance on the built in fire protection. When council asked for their insurer to cover the claim from the Leagues club. State Wide Mutual demured. So the council / ratepayers had to pay the reported $400.000.00 Councilors dont understand they can be liable when they do not do their jobs properly. I understand councilors have the same exposure as company directors. Far too often when they stuff up..rstepayers are given the bill. One dsy some ratepayer will say stuff itvI am not paying for councilors common mistakes. Let them pay. That will liven some of the lazy shonky bastards up! Edward James the Dolls House
Reply Monday, 16 October 2017 at 12:31 AM
kurt said...

And despite all of that time, the Victorian police didn't charge anyone over the AWU fraud. Unbelievable isn't it?.
Reply Saturday, 14 October 2017 at 07:21 PM
Dennis Thompson said in reply to kurt...

The Untouchables.
Reply Saturday, 14 October 2017 at 08:48 PM
Shillo said in reply to kurt...

No !
Reply Sunday, 15 October 2017 at 10:40 AM
Tom said in reply to kurt...

It is offencive because our taxes are still being sucked up by these lazy inept public servants.we are not yetvangry enough to become the change we want. Have a good look at your local politicians are they aware of the crime and cover up? If yes why are they not getting up in Parliament and calling for action? And if they claim they don't understand then dump them next chance you get. Why put up with lazy shonks and cheats telling us lies every time there is an election just because they are political team players? Those sorts of politicians are not representing us thats for sure! Edward James the Dolls House
Reply Monday, 16 October 2017 at 07:16 PM
Tom said...

Surley it must stand alone as irrefutable evidence of the fraud, if not also the conspiracy. If you accept THIESS accepted the return of their money. Which was paid to Wilson through the legal device of the AWU/WRA Inc? Because THIESS claimes they were deceived. Deceived or not there is evidence enough and it is certainly not hersay. Edward James the Dolls House
Reply Saturday, 14 October 2017 at 07:51 PM
seeker of truth said...

When I see the list of documents in that Annexure "A" on which privilege is claimed, I am at a loss as to why S&G did not include a copy of the trust account receipt for the $67thousand plus payment.

These receipts at the time were obtained from a receipt book, and a carbon copy of the handwritten receipt was retained in that receipt book. Under trust account laws, the receipt book was required to be retained for a number of years (7 years I believe). Therefore when this controversy arose, and it was necessary to seek outside legal advice, S&G didn't bother to obtain a copy of this important carbon copy of the receipt in the trust account receipt book but went for the trust account ledger to provide evidence as to record of payment.

It seems to be to be a deliberate act of omission to influence an outcome that they were seeking that would be favourable to the firm.

It was obvious that it was not the policy of the firm to forward these original trust receipts (or other receipts) to the client. Though Ralph made payments, and receipts were issued (as confirmed in Annexure A), there is no mention in correspondence from S&G to Blewitt enclosing those receipts. Ralph's cheques came in the mail directly from Ralph so you would expect a receipt to be forwarded to Ralph in WA and not handed to Wilson. Anyway, Olive Palmer's diary notes make no mention of any hand over.

The conveyancing file also contained the original receipt from GA Thomson & Co, issued in the name of Ralph Blewitt for the deposit money paid for the purchase of Kerr Street. S&G held the trust account receipt dated 15 March 1993 issued to RE & JA Blewitt for the payment of valuation fee, and the trust account receipt dated 12 May 1993 issued to RE & JA Blewitt for the payment of disbursements.

So what happened to the trust account receipt for the $67 thousand plus that the firm was required under the law to issue and to retain a copy for inspection in a Law Society audit and for other purposes? It disappeared off the face of the earth. Why?
Reply Sunday, 15 October 2017 at 12:29 PM
seeker of truth said...

As far as S&G were concerned, Ralph Blewitt was purchasing 1/85 Kerr Street, Fitzroy as Ralph Blewitt private citizen. It was not a union house purchase; it did not require contact with the AWU as an industrial entity. Blewitt might have been a union official, as was his Victorian agent Wilson, but this purchase had nothing to do with the industrial entity the AWU. That is obvious from the file. Yet S&G receives a fax from Sciaccas who were the AWU's solicitors for the National President Bill Ludwig and his Qld branch, on 18 March 1993 that had something to do with the $67 thousand (as per Annexure "A" document). Why? That question still remains unanswered for us but S&G know the answer because they have that Sciaccas' fax, and the firm had to seek advice from Geoff Masel due to this $67 thousand it had received in its trust account and this fax.
Reply Sunday, 15 October 2017 at 05:21 PM
JamesD said...

People I speak to of all political persuasions are appalled at the scale of cover-up that goes to the heart of confidence in the justice system. The TURC failed. Why does not Tony Abbott focus on how he was conned by Heydon and Stoljar?Is not Turnbull interested in seeing Shorten being brought to account over his actions as head of the AWU post Gillard’s scam?

I suppose it is all about who’s got what on whom.

A federal non politicised ICAC seems the only answer. Aus law enforcement at the top is shot when it comes to crimes of the powerful.

Magnificently done by you but depressing
Reply Sunday, 15 October 2017 at 05:32 PM
Tom said in reply to JamesD...

Those with experience amongst political activist are more than a little weary of entities like ICAC, Royal Commissions and Government inquiries. Because they for the most part seem to white wash most of what they get their hands on. More importantly because they can use duress to get answers, those answers are then useless as evidence when it comes to prosecuting those who spilled their guts. We are then confronted with public prosecutors telling us there is not enough evidence to get convictions. Often resulting in an enormous waste of our time and money. As some others have pointed out what has been revealed could be played around with by several lawyers for several years then be forgotten about because so many expected to give evidence are dead and can't be examined. The silence of our elected reps should result in them loosing voter support. That could have been occurring for five years now. Edward James The Dolls House.
Reply Monday, 16 October 2017 at 10:59 AM
Trevor said...

Dang!

www.news.com.au/national/queensland/vale...dd2884cc66b1f4e385b4

A good man, - gone.
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