Dadour v University of Western Australia [2016] FWC 2969 (1 June 2016) [2016] FWC 2969 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Ian Dadour v University of Western Australia (U2015/4653) COMMISSIONER WILLIAMS PERTH, 1 JUNE 2016 Termination of employment. [1] This decision concerns an application for an unfair dismissal remedy made by Professor Ian Dadour (Professor Dadour or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent is the University of Western Australia (UWA, the University or the respondent). [2] Professor Dadour was terminated by a letter dated 3 April 2015 from Vice Chancellor Professor Paul Johnson on the grounds of serious misconduct. This followed the recommendation of Professor Alexander Cameron, Deputy Vice Chancellor (Education), dated 19 February 2015, acting in the capacity of the Senior Management Representative (SMR) appointed under clause 3.2 of Schedule D−Misconduct of the University of Western Australia Academic Staff Agreement 2014 [AE409546] (the Agreement). [3] Schedule D−Misconduct of the Agreement, as appended to this decision, provides a comprehensive scheme for the reporting and investigation of alleged misconduct, the preparation of reports and making of recommendations, the review of such recommendations by a committee and the imposition of disciplinary action including termination of employment where the conduct of the employee amounts to serious misconduct. [4] Relevantly that recommendation of the SMR included that: “ 2.2 In respect to the Allegations relating to W/Professor Dadour’s interest in Insect-Tec and the procurement of goods and/or services from Insect-Tec, I accept the findings of the Report in part and consider that: (a) W/Professor Dadour was granted approval to hold an interest in Insect-Tec by the then Deputy Vice Chancellor, Professor Alan Robson, to enable him to perform external private consultancy work; (b) W/Professor Dadour's interest in Insect-Tec constituted a conflict of interest which he was required to disclose to UWA; (c) W/Professor Dadour did not disclose this conflict of interest at any time other than when he completed his 2013 Annual Declaration of Interest; (d) W/Professor Dadour was required to, but did not, apply for approval to undertake consultancy work on an annual basis; (e) being given approval to hold an interest in Insect-Tec and approval to provide consultancy services through Insect-Tec does not constitute authorisation to issue invoices to, and receive payment from, UWA for consultancy work performed for the WA Police on a pro bono basis; (f) W/Professor Dadour failed to disclose his interest in Insect-Tec on 4 separate occasions before rendering an invoice to UWA, and receiving payment from UWA totalling $38,500, in respect of consultancy work he had performed for the WA Police on a pro bono basis; (g) W/Professor Dadour failed to seek or obtain approval to render an invoice to, and receive payment from, UWA in the name of Insect-Tec on 4 separate occasions, in respect of consultancy work he had performed for the WA Police on a pro bono basis; (h) during the period March 2009 — July 2013 Insect-Tec invoiced UWA for a total of $38,500 for ‘Entomological Consultancy’ work done for the WA Police and during this same period UWA invoiced the WA Police $8,250 for such services; (i) the above conduct constitutes a breach of UWA’s Conflicts of Interest Policy (refer clauses 2.4, 3.3, 3.3, 3.4.2 and 3,5.1), Professional and Consultative Work Policy (refer clauses 4, 7.2, 7.3 and 9.3), Code of Ethics and Code of Conduct (refer clauses 3.1 and 3.11), and W/Professor Dadour’s implied duty to comply with the lawful and reasonable directions of UWA and his implied duty of good faith; (j) the above conduct and breaches constitute serious misconduct within the meaning of Schedule D; and (k) disciplinary action should be imposed on W/Professor Dadour .” [5] The appropriate disciplinary action recommended by the SMR given the nature of the serious misconduct was to terminate Professor Dadour’s employment. The evidence [6] I will now consider the witness evidence in this matter and make a number of factual findings. I note the parties have respectively raised a number of objections concerning parts of the evidence of some of the witnesses and I have had regard for these objections where relevant. [7] Professor Dadour has been employed at UWA since 1996. He was the Director of the Centre for Forensic Science (the Centre) from December 2002 and prior to that was the Director of Studies for the Forensic Science Unit at UWA. He was awarded the title of Professor and life tenure at UWA in 2008. [8] Professor Dadour holds a Bachelor of Science (Zoology) and a PhD in Zoology. He is a Registered Forensic Practitioner and the State of Western Australia’s Honorary Forensic Entomologist. He is called on by the State as an expert witness in the Science of Entomology, and has appeared in courts in Western Australia, Northern Territory, Queensland and New South Wales. [9] Professor Dadour conducts forensic Entomology workshops for law enforcement agencies in Australia (Queensland, Northern Territory and Tasmania) and the United States of America. [10] The Centre for Forensic Science has had up to 9 academic staff, 5 research staff and 21 adjunct positions, as well as some 80 students each year (including 16 internationals and 8 police) enrolled in the various courses. [11] Professor Dadour’s evidence is that clause 3.2 of the UWA “Professional and Consultative Work” policy 1 (the PCW Policy) allowed him to spend 20% of his working week engaging in pro bono work, directorships, contract consulting or contract teaching, provided formal approval had been given. This is not disputed by UWA. [12] Relevantly the PCW Policy provides: “ Under specified conditions, employees may engage in a variety of consultancy activities that bring additional funds to UWA, to them as individuals or other parties. The time allowance for such activities for academic staff is up to 20% of a working year averaged at one day of a five day working week. These activities include: 3.2.1 consultancy work including company directorships, contract consulting and contract teaching ” [13] Subclause 1.5 of the PCW Policy Professor Dadour has referred to in his evidence says one of the objectives of the policy is to: “ 1.5 provide guidance for University employees to pursue private consultancy to ensure there is a clear distinction between work performed in a private capacity and as a university employee .” [14] Clause 2−Definitions of the PCW Policy Professor Dadour refers to includes definitions of “Consultancy Work”, “Private Consultancy’, “University Consultancy” and “University contract” as set out below. “ 2 Definitions Consultancy Work is a comprehensive term that refers to the full range of services that may be provided by employees of UWA to commercial, government or other clients in the broader community. These are outlined in section 3.2. To fall under this policy, such work: is be conducted within the time allocation allowed by UWA for this purpose; or utilises University resources and/or facilities; or has been obtained as a consequence of the reputation of UWA and the individual's affiliation with and skills/knowledge demonstrated at UWA. (For example, an archiTect engaged In the design of home renovations (for which he or she Is paid) is likely to be covered by this policy as the work is directly related to the skills for which he or she Is employed at UWA. An historian doing the same thing would not.) (sic) … Time Allocation refers to the standard entitlement for an employee to engage In professional end consultancy work. This can be up to 20% of the working year (that is, not more than 48 days per annum allowing for annual leave). See 7.1. Private Consultancy is a form of consultancy work conducted and contracted by an employee of UWA within the agreed time allocation for such work. Payment is made direct to that individual, or to a trust, private company, or registered business. Employees receiving payment for private benefit must consider the money as private Income on which income tax is payable. University means UWA of Western Australia including all Its Faculties, Departments, Centres, Services, Institutes, Units, Schools and Colleges. University Consultancy is a form of consultancy work, conducted under a University contract, within the agreed time allocation for such work. Note that the existence of a University Consultancy means that by definition, a University Contract has been made. University contract is a contract for consultancy work agreed between UWA and a commercial, government, or other legal entity. Contracts within this category are recognised by the requirement for University signatory to the contract to be a member of the University’s Executive. Signing authority may be delegated to Heads of School in some instances. The University Delegations can be found at University Delegations .” (sic) [15] The PCW Policy includes clause “4 Key Principles” one of which is: “ Principle 3: Accountability: Consultancy work will occur within an accountable framework with clear requirements for approvals, recording and reporting of these activities on behalf of UWA. Failure to comply with these accountability requirements will be considered as misconduct and may result in disciplinary action .” [16] The PCW Policy expands on this at clause 7 Principle 3: Accountability Framework. This includes 7.2−Approvals (Application to Undertake Consultancy Work) which details the requirement that an employee shall, for each instance of consultancy work, obtain written approval from the Head of School providing details of the proposed activity on the appropriate form prior to undertaking the work. It provides that in the case of on-going work for a single organisation approval is only required annually. The approval process must specify whether the work will be undertaken as a University Consultancy or a Private Consultancy. The clause states an employee engaged in a private consultancy is responsible for obtaining their own professional indemnity, workers compensation and public liability insurance. Heads of School wishing to undertake consultancy work must obtain approval from the Dean and Deans wanting to undertake consultancy work must seek approval from the Senior Deputy Vice Chancellor. [17] The PCW Policy also states towards the end of 7.2: “ If an employee accepts consultancy work without approval, this will be deemed to be misconduct and may be subject to disciplinary action .” [18] Under the PCW Policy Heads of Schools are required to provide annual activity returns regarding consultancy work of all staff. [19] Under cross-examination Professor Dadour agreed he was aware of the existence of the PCW Policy over the course of his employment and that it changed over time and that he was aware of it at the time he prepared quotations for the Water Corporation. His evidence was he understands the PCW Policy distinguishes between a “University Consultancy” and a “Private Consultancy”. 2 [20] Professor Dadour’s evidence was his duties included putting the Centre for Forensic Science on the global map as a major forensic centre via publications, attending conferences, attracting international students to UWA, and the procurement of research grants, including providing quotes to external customers to undertake research work. [21] Professor Dadour’s evidence was that notwithstanding he is a qualified Entomologist, his role at UWA from 1999 was not as an Entomologist. His title and role at UWA was Director of the Centre for Forensic Science. [22] His evidence was that he did not have a position description and was not given any induction or direction in relation to the scope and limitations of his duties including the day-to-day requirements of his position, accountabilities, reporting arrangements and what policies if any apply to his employment. Evidence from other witness, which is detailed later in this decision, contradicts Professor Dadour’s evidence that he was not give direction as to what policies applied to his employment. [23] Under cross-examination Professor Dadour agreed part of his duties involved pitching for UWA to conduct projects on behalf of government and private organisations in order to obtain funding from those bodies to carry out the work of the Centre. When he was undertaking these tasks he was doing so as an employee of UWA. [24] The Centre offered services to other academic institutions, national and federal police forces and law enforcement agencies, industry organisations and the general public both locally and internationally. The type of work to be done may be as a project grant or as a consultancy or as funded research. As part of his work he would seek to procure research grants and prepare submissions for grants. [25] Professor Dadour agrees that beyond seeking to attract research funding his role also involved seeking out arrangements to perform commercial work for government or private organisations. These fee paying services are known as “University Projects” and “University Consultancies”. [26] Professor Dadour’s evidence was that in 1997, he established a business called “Insect-Tec” which provided Entomological consultancy to clients, such as the WA Police and others in the mining, horticultural and food industry. Initially registered as a partnership in June 2004 Insect-Tec (ABN 78 394 889 610) was re-registered as a sole trader. [27] Around 1999, he was informed by the Faculty of Life and Physical Science that he was required to disclose to the Vice Chancellor his interest in Insect-Tec. He then immediately attended a meeting with the Professor Robson where he declared his interest in Insect-Tec and made a verbal application to hold an interest in Insect-Tec. Professor Robson then verbally authorised him to hold an interest in Insect-Tec to undertake private consultancy work. [28] Following that meeting, he says he was not informed, either verbally or in writing, that this approval by Professor Robson had been revoked, nor of any requirement to apply for approval to undertake consultancy work on an annual basis; or complete and submit an Annual Activity Return at the conclusion of each calendar year in respect of consultancy work undertaken during the year. This evidence however ignores the fact that the PCW Policy on which Professor Dadour relies regarding his right to undertake consultancy work expressly requires staff gain prior written approval for each instance of consultancy work and complete an activity report annually detailing such work and are required to complete a “Nil” return in years they have not done such work. [29] In the early part of his career at UWA Professor Dadour was employed to perform research which involved him working as an Entomologist for all or part of his time. 3 [30] Professor Dadour’s evidence was that in around 2002 he was advised by the Vice Chancellor Professor Alan Robson and Professor Stewart that he was required to break his work week up into proportions of approximately 40% research, 40% teaching and 20% service on various University committees and University sponsored activities. [31] Under cross-examination Professor Dadour said that the 40% research was to conduct research in forensic science which he accepted included him performing research as an Entomologist, although he said this was very little. 4 He also explained that in preparing quotes to external customers on behalf of UWA this would usually be for forensic science research but sometimes, although he would say rarely, this did involve Entomology work. 5 [32] During the course of the investigations into these matters when Professor Dadour was asked to explain the Insect-Tec invoices he did not initially adopt the position that Entomology work was outside his role as the Director of the Centre for Forensic Science. Professor Dadour agreed that the first time he claimed this to be the case was in a letter written on his behalf to UWA on 9 February 2015. 6 [33] Mr Logan gave evidence as to the application of the PCW Policy to Professor Dadour’s interactions with UWA as Insect-Tec. Mr Logan was not cross-examined and I accept his evidence that Professor Dadour’s actions involved multiple failures to comply with this policy. [34] Professor Dadour’s evidence in chief was that that pursuant to UWA’s Financial Services Quotation Thresholds policy 7 (the FSQT Policy) a written quote is not required for strategic or preferred suppliers. He says he understood that Insect-Tec was a strategic or preferred supplier of UWA on the basis that he was providing Entomological services (through Insect-Tec), which were specialist services not otherwise offered by UWA, for the ultimate benefit of UWA. [35] The FSQT Policy document explains the nature of the policy as follows: “ This defines the quotation threshold rules and processes to ensure compliance with legislation, audit and financial management requirements for expenditure of University funds .” [36] The FSQT Policy as Professor Dadour points out does state when specifying the different types of quotation required for different estimated values of goods and services to be purchased that there is an exception “ ... for strategic or preferred suppliers... ”. The FSQT Policy document includes hyperlinks to “ Preferred Supplier Agreements ” and “ Strategic Procurement ”. [37] Under the heading, “ Guidance ” the FSQT Policy document also states “ Written quotation and tenders are not required where a preferred or strategic supplier agreement is in place (strategic suppliers are those mandated for use by policy) .” [38] The FSQT Policy also states “ 1. Staff should familiarise themselves with the UWA Preferred Supplier Agreements and the Facilities Management Consultants and Contractors Panel as these suppliers have been assessed under a UWA tender process and complied with UWA’s requirements .” [39] Professor Dadour’s evidence that he understood Insect-Tec was a strategic or preferred supplier is not supported by any evidence that there was a preferred or strategic supplier agreement in place between Insect-Tec and UWA. Absent such an agreement the quotation requirements set out in the FSQT Policy would have been applicable had UWA at any point sought to use the services of Insect-Tec. In any event the evidence is that at no time did UWA seek to procure services from Insect-Tec. [40] Professor Dadour gave evidence about the Strategic Partnerships with Industry - Research and Training Australian Research Council Grant (SPIRT Grant) which was initially awarded for a three year period. His evidence was that it was intended that the particular research would be long-term. Accordingly, the research continued with regular additional funding from the Water Corporation until the period of 2011/2012. In total the Water Corporation deposited approximately $1,000,000 into two UWA project/grant accounts. These accounts were identified as firstly the “Water Corp Dadour Biosolids” (Account number 47003200) and secondly the “Dadour Consultancy Account” (Account number 6300 1020). [41] With respect to this second account the applicant’s evidence was that the account was first established in 1996 when he transferred to UWA from the Department of Agriculture. His evidence was that the department then transferred approximately $200,000 of research and consultancy monies to UWA which became a project/grant account identified as the “Dadour Consultancy Account”. [42] Of the monies paid by the Water Corporation, Professor Dadour’s evidence was that approximately $74,550 was allocated as remuneration for Entomological consultancy, being his fees for completing research projects and reports. [43] Professor Dadour’s evidence was also that beginning in 1997, he provided a significant amount of pro bono consultancy case work for the WA Police. He explained he had attempted to negotiate with the WA Police to utilise his services on a retainer basis but this failed and by approximately 2003 he says he was completing an average of $105,000 worth of work for the WA Police per annum on a pro bono basis. [44] As a consequence around this time he had a meeting with Professor Stewart where he told Professor Stewart he was providing a large amount of pro bono consultancy case work to the WA Police. His evidence in chief was that Professor Stewart said that while he could not invoice UWA for pro bono consultancy case work, he could provide consultancy services through Insect-Tec and issue invoices to UWA for professional fees. 8 [45] As a result of this meeting with Professor Stewart, Professor Dadour says at no time has he issued invoices to UWA or received payment from UWA for any consultancy case work provided to the WA Police through Insect-Tec. I accept this statement is correct. [46] His evidence was that while he was entitled to initially claim his consultancies in 1999 at the commencement of the SPIRT Grant, it was not until 2009 when he issued his first invoice to UWA from Insect-Tec. [47] Professor Dadour’s evidence in chief was that the only four invoices that have been issued by Insect-Tec to UWA for payment are related to consultancy for the Water Corporation. [48] The Centre for Forensic Science employed administrative assistants and as Director of the Centre Professor Dadour did not have signatory rights with respect to financial or high-level administrative matters such as human resource management matters. Accordingly Professor Dadour was required to obtain authorisation for all financial and administrative matters from various other more senior academics or the applicable Faculty Manager. [49] He says because he was required to seek authorisation from the Faculty Office with respect to all financial matters, he handed each of these four invoices to his administrative assistant. Following that, he is aware the process is that following checks against the approved UWA vendors, the Faculty’s Business Unit must first approve the Invoice Authorisation Form. Once approved, the Faculty Manager or the Dean may then authorise the invoice for payment and the invoice is then sent to Financial Services for final authorisation. [50] The four invoices of concern in this matter issued by Insect-Tec to UWA, totalled $38,500. The detail of how each was processed is as follows: Insect-Tec No. 107 dated 10 March 2009 for the amount of $10,000 ($11,000 including GST). A UWA Invoice Authorisation Form was completed. The next day Professor Dadour gave “Business Unit Authorisation” by signing this authorisation form, whereby he certified the services had been performed for UWA. One day later Ms Gamble, the Faculty Manager, also signed the base of this form. Insect-Tec No. 117 dated 4 May 2010 for the amount of $10,000 ($11,000 including GST). A UWA Invoice Authorisation Form was completed. “Business Unit Authorisation” was given by Dr Daniel Franklin Director of Studies signing this form on 5 May 2010, whereby he certified the services have been performed for UWA. Dr Franklin is a subordinate of Professor Dadour. The form had been completed for Professor Dadour to provide this authorisation but his details were crossed out. Mr David Faithfull, Faculty Manager, then also signed the base of this form on 10 May 2010. Insect-Tec No. 123 dated 25 January 2011 for the amount of $10,000 ($11,000 including GST). A UWA Invoice Authorisation Form was completed. “Business Unit Authorisation” was given by Dr Daniel Franklin Director of Studies signing this form on 25 January 2011, whereby he certified the services have been performed for UWA. The form had been completed for Professor Dadour to provide this authorisation but his details were crossed out. Ms Gamble, Faculty Manager, then also signed the base of this form on 27 January 2011. Insect-Tec No. 132 dated 13 May 2013 for the amount of $5,000 ($5,500 including GST). There is no evidence as to the authorisation process of this invoice. [51] Professor Dadour’s evidence was that after being paid the above invoiced amounts approximately $21,000 remained after tax. He says that this $21,000 was subsequently transferred in irregular amounts by him to a research collaborator in Italy, Dr Paola Magni, between 2009 and 2013 for her to fund research, equipment and attendance at conferences and workshops. [52] Dr Magni was called to give evidence by Professor Dadour. Dr Magni has known Professor Dadour since 2002. She says that from January 2009 to March 2013 she was studying her PhD at the University of Turin in Italy. Italy did not have the required facilities for her to complete her research so she spent January 2010 to July 2010 researching at UWA. Professor Dadour became her PhD supervisor in 2009. [53] Her evidence was that without Professor Dadour’s financial support she would not have been able to complete her PhD or resettle in Australia. [54] Both Professor Dadour and Dr Magni acknowledge that they had a close personal friendship. They had half shares in a property and the associated mortgage. [55] Professor Dadour’s evidence in chief was that he did not know that the funds for Dr Magni could have been provided through the usual UWA financial process as he did not know what funds could be used for stipends, equipment and travel, however he decided sending her money the way that he did was more flexible and easier to administer. 9 [56] At odds with this evidence under cross-examination Professor Dadour identified a series of entries in the UWA account identified as “Dadour Consultancy”, which is a 63 account, that are expenditure items involving payment of monies with respect to expenditure incurred by Dr Magni for research, travel expenses, visa nomination, tertiary travel, hotel accommodation and attendance at an Excel training course. These payments from this UWA account occurred in 2009, 2010 and 2014. [57] As explained at paragraph [22] above, Professor Dadour’s evidence was that he has no knowledge or records of a current employment contract. He says there was no formal induction process at the commencement of his employment and at no time since has he been provided with or been informed of UWA’s policies relevant to his employment, nor has he been educated by UWA concerning such policies. [58] However Professor Dadour says he was aware that prior to 2013, it was a requirement that the “ Financial Reporting Responsibilities & Requirements Checklists ” (the Checklist) be submitted for approval. Consequently, the Centre for Forensic Science administrator completed the Checklist for the years 2009 to 2013. 10 [59] Pursuant to section 2 of the Checklist “ Additional Disclosure Issues ” – “ related party transactions ”, the Checklist states “ Any related party transactions or transactions that potentially give rise to a conflict of interest have been disclosed to the Executive Director, Finance & Resources .” His evidence was that he was of the view at the time of submitting the Checklist that he had provided sufficient disclosure of interests in Insect-Tec to both Professor Robson and Professor Stewart in 1999 with respect to the consultancy services provided to the Water Corporation. Furthermore, as he had previously disclosed to Professor Robson and Professor Stewart the long-term nature of the SPIRT Grant being continued as Water Corporation consultancies, he did not realise that it was necessary to disclose such business interests on an annual basis. [60] Professor Dadour says that about April 2012, the “ Annual Declaration of Interest ” Form (Annual Declaration) was implemented by the Vice-Chancellor of UWA. 11 [61] On 12 March 2013, he submitted the Annual Declaration declaring his interest in Insect-Tec in accordance with UWA’s P2P procurement process. He says it was not brought to his attention that he was also required to submit an Annual Activity Return, in addition to the Annual Declaration. He says that year he had undertaken only one consultancy job and subsequently had only issued one Insect-Tec invoice of $5,000, which was paid by UWA on 13 May 2013. [62] His evidence was that during his 18 years at UWA, it was never once brought to his attention by the Faculty Office that he was required to declare any potential business interests on an annual basis. [63] UWA’s witnesses dealt comprehensively with the issue of Professor Dadour’s employment contracts and the UWA policies which they say Professor Dadour was bound to observe. [64] Importantly none of UWA’s witnesses were cross-examined. I accept their evidence in full on these issues. Their evidence directly contradicts Professor Dadour’s evidence as to his lack of knowledge of his contact and UWA’s policies. [65] The unchallenged evidence is that Professor Dadour accepted various offers of employment from UWA respectively dated 18 July 1996, 13 November 1998, 19 November 1999, 9 February 2001 and 16 February 2005. Indeed the evidence is that Professor Dadour signed in acceptance of each of these offers of employment. [66] Each of these offers of employment state that his appointment will be subject to the provisions of the UWA Act and the Statutes and regulations of UWA and to any general directions issued by the Senate to the staff. Under cross-examination Professor Dadour agreed that he knew that at all times during his employment he was bound by the provisions of the UWA Act and any bylaws promulgated by UWA. [67] Professor Dadour accepts that as a Professor from 2008 and then a Winthrop Professor from 2010 these two positions were the most senior positions in UWA outside of the executive management. These were positions of leadership which required the utmost probity from those holding the positions. [68] The evidence is that in 1999 the UWA Senate resolved to adopt the Code of Ethics and Code of Conduct, which collectively are referred to as the Codes. [69] The Codes offer guidance and direction to staff members on a range of ethical issues. The Code of Conduct does not reproduce all UWA policies in full but acts as a roadmap providing references to the applicable UWA policies and links to the website on which those policies can be found. Employees can access the Code of Conduct when they confront an ethical issue for high-level guidance and they will then be directed to the relevant UWA policy which will provide detailed guidance. [70] The Code of Conduct states a failure to act in accordance with its obligations can be a cause for investigations under the provisions of the Agreement. [71] There have been a number of amendments to the Codes including the introduction in 2006 of a new section titled “ Personal and professional responsibility ” which incorporated the existing sub section titled “ Conflicts of interest ”. Also in 2007 under the heading 3.5 Conflicts of Interest “ Outside employment and private practice ” was inserted and a new subsection under the section titled “ Personal and professional responsibility ” which is entitled “ Fraud and corruption ” was introduced. [72] The evidence is that hard copies of the Codes have been mailed to all staff at UWA mailbox addresses in July 1999, July 2006, February 2010, February 2012 and February 2014. On each of these occasions the Codes were accompanied by a covering letter from the Vice Chancellor emphasising the importance of the Codes as part of UWA’s accountability framework and specifically stating that if staff members are uncertain how to proceed they should always seek advice and including a list of contact persons and telephone numbers for specific issues covered in the Codes. Those letters also highlighted any recent changes to the Codes included in the most recent version. [73] There is specific evidence, which I accept, that confirms Professor Dadour received a copy of the Codes accompanied by the above-mentioned covering letter from the Vice Chancellor in 2010, 2012 and 2014. 12 [74] In addition the evidence is that there have been various communications to UWA staff reminding them of the existence and the importance of the Codes including an all staff email in November 2009, a memorandum to senior staff, which would have included Professor Dadour, in March 2010 reminding them to familiarise themselves with the latest version of the Codes and understand their responsibilities to ensure that their staff comply with the rules, processes and expectations therein. Another similar memorandum to senior staff in April 2011 came from the Senior Deputy Vice Chancellor. [75] The requirements to declare and disclose conflicts of interest is contained in the Codes and a number of UWA policies. In July 2012 UWA created a standalone policy on conflicts of interest. This policy provides a framework to identify and manage possible conflicts, introduces a requirement for senior staff to complete an annual declaration of interests and sets out guidelines for managing disclosures of actual or perceived conflicts of interest. [76] Separately the PCW Policy which Professor Dadour has referred to in his evidence in chief has been in existence since at least 1999. The PCW Policy provides a framework which includes the requirement to obtain approval before undertaking any consultancy work whether as a University consultancy or a private consultancy. It includes UWA’s management and quality control expectations including risk management and accountability and specifies how consultancy funds received by UWA may be spent. Finally the PCW Policy requires UWA staff to complete and submit an annual activity return setting out any consultancy work carried out in the previous year or if there was none to submit a “Nil” return. [77] On 30 June 2010 a memorandum from the Senior Deputy Vice Chancellor was sent to senior staff and an email was sent to all UWA staff both of which advise the recipients of the amendments to the PCW Policy. I accept the evidence that as the Director of the Centre for Forensic Science Professor Dadour was what is referred to as “senior staff” and he did have a responsibility to familiarise himself with all of UWA’s relevant policies and also to ensure that his staff were aware of their obligations under those policies and to ensure they complied with those policies. [78] The evidence is that private consultancy is a privilege that is widely utilised by academic staff and the associated accountability requirements mentioned above should be well known to those who perform consultancy work. [79] I accept that Professor Dadour, having set up a private business Insect-Tec with the intention that it would be a vehicle for him to undertake private consultancy work, did have various obligations under the Codes and relevant policies particularly the Conflicts of Interest and PCW Policies. UWA had provided these policies to Professor Dadour and repeatedly emphasised there importance to him and to the extent he was not familiar with them this was his failure alone. [80] Professor Dadour’s evidence is that on 17 October 2014 he attended a meeting with the Senior Deputy Vice Chancellor. At this meeting he was told UWA had received allegations of serious misconduct against him but the allegations had not been determined and that Professor Cameron was appointed as the SMR 13 who would determine any allegations and whether an investigation was warranted, that he would be provided with the details of the allegations once they were available and that there would be further meetings. Professor Dadour was advised that he was suspended. [81] Schedule D–Misconduct clause 5−Suspension provides for suspension if an allegation of serious misconduct is such that it would be unreasonable for the University to continue the employment of the employee. [82] Professor Dadour engaged lawyers who on his behalf disputed his suspension. On 24 October 2014 he attended a meeting at UWA supported by Mr Ritter QC. Professor Freshwater heard the objection to his suspension. Ultimately UWA decided that his suspension would stand. [83] Various correspondence then went back and forth between Professor Dadour’s lawyers and UWA’s lawyers. [84] Schedule D–Misconduct as appended to this decision includes definitions of misconduct and serious misconduct and includes a process for investigating allegations of misconduct or serious misconduct and reporting the outcomes of those investigations, the making of recommendations regarding disciplinary action by UWA’s senior management representative having considered the report and the right of an employee to apply for a review of the senior management representative’s recommendation by a Review Committee. Clause 46−Review and Dispute Committees details how a Review Committee is to be established, how it will operate and how the Review Committee will report. [85] On 5 November 2014 Deloitte wrote to Professor Dadour’s lawyers advising they had been engaged to conduct an investigation into certain allegations against him. The letter explained they first will obtain and analyse evidence relevant to those allegations then would conduct a formal interview with Professor Dadour during which they would present the evidence obtained relating to each of the allegations and seek his response. The letter explained that if Professor Dadour required some time to review or obtain relevant material they will agree for an appropriate date for the provision of any further response by Professor Dadour in writing and once he has had an opportunity to provide all responses they will complete their report which will be provided to the SMR of UWA. [86] On 26 November 2014 Professor Dadour attended an interview at Deloitte’s office with his legal representative Mr Wilde and his support person Associate Professor Richard Adams. [87] During the interview Professor Dadour provided two letters one from Professor Robson, which states he recalled Professor Dadour had sought approval to establish Insect-Tec to manage his consultancy work and that Professor Robson verbally approved this, and one from Professor Stewart which states he recalled Professor Dadour had approval from Professor Robson to set up Insect-Tec to manage his consultancy work which was to enable him to collect the consultancy fees and to have access to funds that would support the work undertaken. That letter stated that Professor Stewart would then have approved claims made against such consultancies for Professor Dadour’s professional fees. [88] A further letter was provided which in effect confirms a conversation between Professor Stewart and Mr Wilde which in addition states that Professor Stewart did not consider the consultancy arrangement would give rise to a conflict of interest and was pretty standard practice in line with UWA policy which allows staff to spend up to 20% of their working time as a consultant in their own business. Professor Stewart had told Mr Wilde that if Professor Dadour was simply recouping his professional consultancy fees from monies specifically set aside for consultancy work on a project grant account with UWA he could not see any conflict of interest. Professor Stewart also told Mr Wilde that he understood that the usual practices was for an invoice to be issued for private consultancy services directly to an external customer for payment or alternatively, an invoice may be issued to UWA for private consultancy services and UWA pays the invoice drawing upon consultancy funds in a project grant. 14 [89] Professor Dadour in his examination in chief said that during the interview with Deloitte he was questioned about the four invoices that were issued to UWA through his business Insect-Tec and he made a number of points including that: He was providing a large amount of pro bono work to the WA police, mining, horticultural and food industries. He had previously attempted to negotiate for the WA police to pay him a retainer however this failed. He was doing an average of over $100,000 worth of work for WA police per annum on a pro bono basis. He met with Professor Stewart in 2003 and told him he was providing a large amount of pro bono consultancy work to the WA police. Professor Stewart said that while Professor Dadour could not bill UWA for the pro bono consultancy work, he could provide consultancy services through Insect-Tec and issue invoices to UWA for professional fees against his consultancy accounts. He explained at no time had he issued any invoices to UWA or received payment from UWA for any consultancy work provided to the WA police through Insect-Tec. [90] A copy of the transcribed record of interview dealing with Professor Dadour’s response to Deloitte’s question about the four invoices was provided to the Commission. 15 [91] On 23 January 2015 the Deloitte’s report was published. The Deloitte’s report considered he had a case to answer in respect of a number of allegations. [92] On 9 February 2015 Professor Dadour’s lawyers responded denying the serious misconduct allegations in the Deloitte’s report and providing further information. [93] On 19 February 2015 Professor Cameron’s correspondence as the SMR was provided to Professor Dadour which stated that he had been cleared of some of the allegations but not of others and was found guilty of serious misconduct. The correspondence advised that the recommendation was Professor Dadour’s employment be terminated for serious misconduct [94] On 27 February 2015 Professor Dadour’s lawyers wrote to UWA detailing grounds for a review of the SMR’s recommendation by a Review Committee. [95] On 12 March 2015 Professor Dadour was provided details of the review venue and the names of the Review Committee members. On 20 March 2015 UWA’s lawyers wrote to Professor Dadour’s lawyers attaching UWA’s submissions for the review hearing. The review hearing proceeded on 27 March 2015 with both parties putting submissions to the Review Committee. Closing submissions in writing were provided on 31 March 2015 to the Review Committee. [96] The Review Committee’s decision was provided the same day and concluded there was sufficient evidence to uphold the recommendation of the SMR and that the Review Committee believed the relevant procedures have been followed. [97] On 3 April 2015 Professor Dadour says he received by email a letter from the Vice Chancellor Professor Paul Johnson confirming the termination of his employment. [98] Turning now to consider the evidence concerning the four invoices in question, Professor Dadour was required to produce all invoices issued by Insect-Tec from 2009 to 2015. 16 There were 38 such invoices which include the four invoices sent to UWA from Insect-Tec. [99] Under cross-examination Professor Dadour explained that he personally prepared each of these Insect-Tec invoices. He said he had a template of the invoice on his computer and entered the necessary details for each new invoice. Most of the invoices he had sent out to various organisations related to consultancy services in connection with food and a few others related to services provided to the Queensland Police Service. [100] Towards the bottom of nearly every invoice appears the following salutation and sign off: “ Yours sincerely Dr Ian Dadour Forensic Entomologist ” [101] Of the 38 Insect-Tec invoices sent out by Professor Dadour from 2009 to 2015 only four do not include this salutation and sign off. These four invoices are the only invoices Professor Dadour/Insect-Tec sent to UWA’s Centre for Forensic Science. [102] Professor Dadour deliberately removed these words from the bottom of each invoice he sent to UWA, first in 2009 and again in 2010, in 2011 and in 2013. [103] Professor Dadour’s explanation as to why he removed this salutation and his sign off is contained in the following extracts of transcript. “ THE COMMISSIONER: I have the documents that were produced, Mr Shariff. MR SHARIFF: Yes, thank you. The first document is invoice number 99?---That's correct. And that suggests that there were 98 invoices issued before this; correct?---I guess so, yes. All right. And this is an invoice issued to the Compass Group?---That's correct. And you did some work for them identifying an Insect?---In food. Yes. Food. And you charged a rate of $300?---Yes. Is that hourly? You did one hour work or was that a daily rate or - - -?---Just what we decided on. Just an arrangement. "I'll do this work. I'll charge you $300."?---No, we had a discussion and they said, "Just charge us $300 per Insect identification." And it's signed off: Yours sincerely, Dr Ian Dadour, Forensic Entomologist. ?---Yes. You see that?---Yes. The next one is to HSEC Department, ESS Ravensthorpe. That's some kind of mine?---Yes. And you were doing some work for them identifying an Insect?---In food. In food. Again, signed off by you. Again, $300?---Yes. Two thousand and eight, you perform some services for the Queensland Police Service?---Yes. Signed off by you again?---Yes. And, again, for an entomology report, $800. How was that arrived at?---Just an arrangement when I ring up the police. It's not a specific hourly rate. Not a specific daily rate?---No. I see. The next one is to Sodexho, identification of Insect. That's also food?---Food. Just going back to the last one. The last one, invoice number 101, that wasn't food, was it?---No, that was a post mortem interval report. Right. So Forensic ?---Forensic. Yes. All right. So, again, invoice number 102 signed off by you; correct?---Yes. Next one, Marillana Village, ESS Gumala?---Food. Food. Signed off by you. And again the rate is the $300 rate?---Food. Correct?---Yes. The next one the same, 104?---Yes, food. Hundred and five the same?---Food. Hundred and six?---Food. Hundred and seven?---Hang on, 107? No, that was for the services I did for the Water Corp. Right?---And I put in my entomology consultancy identification of Insects and survey of sites invoice to the university. So you went in to this document. You added in the words: Attention Professor Ian Dadour, Professor Forensic Science. ?---Yes. Well, that's who it was to be billed to. This was how I was instructed to do it. Yes. You put all those words in?---Yes. Right. You put in: Entomological consultancy identification of Insects and survey of sites. ?---That's correct. Yes. You charged a rate of $1000; correct?---I charged 10,000. Ten thousand, I'm sorry?---Ten thousand dollars. Yes. And then you made the deliberate decision to take your sign off out?---Yes, I don't know why the sign off is not there. But you made a – see, all the invoices up until then – let's just go back to them. Ninety-nine to 106 all have your sign off?---Yes, they do. All right. You were the author of these documents you said?---Well, billed to Professor Ian Dadour. It's on the invoice I guess. That's what I thought, so that's what - - - No, no, just focus on my questions, please?---Okay. All the invoices up until then had your sign off on them; correct?---Yes. That's correct, yes. You've admitted you were the author of these invoices; correct?---Yes. Now, put 107 to one side. Have a look at 108, 109, 110, 111, 112, 113, 114, 115, 116, 17A, 118, 119, 120 all have your sign offs on them; correct?---Yes. We then get to 123?---Yes. That's addressed to the University of Western Australia?---That's correct. You've taken your sign off out again?---Because I had billed to Professor Ian Dadour on it. You made a deliberate, conscious decision to take your sign off out of that invoice; correct?---No, I just didn't think about it. Just let's take it a step back. You're the author of these invoices?---Not denying that. All right. So when you're typing them up, you're the person amending them; correct?---Sure. Right. So when you got to invoice 107 - - -?---Yes. - - -and you got to invoice 123 it's you making a deliberate decision to take your sign off out of those invoices; correct?---No, it's not a deliberate decision. It just happened that way. Well, it has to be deliberate because you go in to the document and you delete your name from it, doesn't it?---Well, it's not a perfect template, no. You made the conscious decision to go in to the document to remove your sign off; correct?---That's your opinion. No. Well, who else did it?---Well, yes, I took it off myself, I guess. Yes. So you accept you made a deliberate decision to go in to the document to remove your sign off; correct?---I just – I didn't think it was necessary because I had my name on the invoice. Right. So you turned your mind to it, did you?---No, not really. Well, you see, just please have a look at the bundle of invoices that have been produced. There's one missing which is the one that you issued for the university in 2010, but other than that, just go through these invoices I provided to you and identify those invoices where your name doesn't appear. Just identify them for us?---It's the ones to the university. I agree. Right?---But my name appears. Your name appears as being the recipient of the invoice?---It's billed to. Right. All the other invoices tell the recipient who it's coming from; correct?---Yes. Now - - -?---These were submitted with a university invoice to faculty. My name is on those invoices. I'll come to that?---Okay then. You made, can I suggest to you, a deliberate and conscious decision to remove your name as being the sender of the invoices that were issued to the university; correct?---I can't remember, but, yes, I suppose I did. You see, in the whole of the period from 1999 to 2015, when your employment was terminated, you issued four invoices to the university; correct?---That's correct. Only four?---Yes. And you've issued something like 137 invoices overall via Insect-Tec?---That's correct. And only on four of those invoices, can I suggest to you, that you've removed your name?---On those four, yes. I removed my name. Thank you?---Because it was already on the invoice .” [104] The relevant details of the addressee for each invoice is set out below: Invoices #107 in 2009 and #117 in 2010 is addressed: “ Bill To: Attn Professor Ian Dadour Centre for Forensic Science University of Western Australia ” Invoice #123 in 2011 is addressed: “ Bill To: Professor Ian Dadour Centre for Forensic Science UWA ” Invoice #132 apparently received 25 June 2013 peculiarly is addressed to: “ Bill To: Professor Ian Dadour Insect-Tec ” but a later duplicate invoice #132 17 received 5 July 2013 is addressed: “ Bill To: Centre for Forensic Science University of Western Australia ” [105] As the transcript shows above under cross-examination Professor Dadour initially said he did not know why the sign off was not there but then he said it was because the invoices were addressed to him. He denied he deliberately or consciously removed the sign off and said he didn’t think about it; it just happened that way. He then said he removed the sign off because he didn’t think it was necessary because his name was on the invoice as the addressee. [106] I have had the benefit of observing Professor Dadour give this evidence. I did not find Professor Dadour’s evidence credible when explaining why he removed his sign off, which would otherwise have identified him as the sender, only from the four invoices he sent to UWA out of all the invoices he had prepared. On the one hand he said the sign off was not needed because his name was on the invoices as the person they were addressed to. Ignoring whether this explanation makes sense, it was a positive explanation he gave as to why he had chosen to remove the sign off. At the same time however he says it was not a deliberate or conscious act to remove the sign off, he didn’t think about it; it just happened. These explanations are inconsistent. [107] To remove this information only on the four occasions he prepared a UWA invoice, out of all the many invoices he prepared was a deliberate act. The fact he deleted this when preparing each of these invoices to UWA over a period of five years reinforces the deliberate nature of his actions. There was no necessity to go to this effort for any of these invoices let alone to choose to do so four times over five years. His explanation that the invoices were addressed to him and this made the removal of the sign off necessary makes little sense. [108] The effect of removing the information that identified the invoices as being sent from him was that UWA staff approving and processing the invoices on each occasion were unaware the invoice had been sent by him and he would receive the monies paid by UWA. Ms Gamble who was involved in processing a number of the invoices said she was not aware that the invoices came from Professor Dadour nor that Insect-Tec was his business. [109] There is nothing on any of these four invoices that identifies Professor Dadour as the supplier of the invoiced services or as the Principal of Insect-Tec. [110] Professor Dadour agrees that he was issuing these invoices to himself 18 however he would not accept this involves a conflict of interest. 19 [111] Each invoice includes a description of service. The invoices from 2009 and 2010 read as follows: “ Entomological consultancy Identification of Insects and survey of sites ” [112] Whilst the invoices from 2011 and 2013 read as follows: “ Entomological consultancy Identification of Insects and ecological surveys ” [113] The services provided on each invoice were not services provided to UWA. [114] Explaining the basis for the invoices Professor Dadour gave evidence that the four invoices issued to UWA by him enabled him to draw on monies received by UWA for a private consultancy he had with the Water Corporation. [115] It is common ground that between September 2002 and November 2009 Professor Dadour wrote nine letters to the Water Corporation which were quotes. 20 Each of these quotes was on a University of Western Australia/Centre for Forensic Science letterhead. [116] Eight of these quotes were headed “ Re: Quote for Biosolid Monitoring... ” One quote in July 2008 was headed “ Re: Quote for Monitoring Flies in Fly Proof Enclosures containing Biosolid Cake... ” [117] The eight quotes for Biosolid Monitoring are virtually identical. Each has a two paragraph description of the project followed by a list of items and their associated costs. These include costs for a research assistant, consumables, travel, a report and in some instances storage sheds. [118] On each of these eight quotes the first line item is as follows (with some variation of the number of days and the daily rate): “ Entomologist (4 days@ $650/day) ” [119] The single quote for Monitoring Flies in Fly Proof Enclosures includes a similar list of items with associated costs. The first line item on this quote is as follows: “ Entomologist (2 days/month at $850/day) ” [120] Underneath the list of items there is a subtotal calculated by adding up the values of each of the line items. [121] Immediately below this is a line item identified as: “ (University overheads at 15%) ” [122] This additional 15% is applied to the subtotal to give the grand total of the quote. [123] For clarity sake the subtotal includes the “ Entomologist ” line item. UWA overheads of 15% has been applied to this amount along with all other line items in the quote. [124] If the Entomologist work identified in each of the Water Corporation quotes was as Professor Dadour says part of a private consultancy agreed between Insect-Tec and the Water Corporation then he was not entitled to use UWA resources whilst delivering those services to Water Corporation. In fact he was prohibited from doing so by the terms of the UWA PCW Policy which says in clause 8 Principle 4 that in the ordinary circumstances those engaged in a private consultancy may not use any university facilities including power, space, laboratories, equipment including computers, letterhead or consumables. The exception within Principal 4 is “ Where such use has been agreed… ” There is no evidence that Professor Dadour had any agreement with UWA for him to use University facilities for this private consultancy he says was struck between Insect-Tec and the Water Corporation. [125] The eight quotes for Biosolid Monitoring are addressed to three different individuals at the Water Corporation respectively: to Ms Penney in September 2002, September 2003, September 2004, to Mr Hegney in June 2005, to Ms Penney in July 2007, to Mr Toleman in July 2008, November 2008 and November 2009. [126] The single quote for Monitoring Fies In Fly Proof Enclosures was addressed to Ms Penney on July 2008. [127] Professor Dadour’s evidence under cross-examination was that the line items in each of the Water Corporation quotes mentioned above that refers to “ Entomologist ” reflects a verbal understanding or arrangement he had with Ms Penney from the Water Corporation for him to provide these services to the Water Corporation as a private consultancy. Professor Dadour explained it this way: “ You never provided services through Insect-Tec to Water Corporation?---Of course I did. Well, if you had done that, there would be a contract between you and Water Corporation, wouldn't there?---There was a contract between UWA and the Water Corporation. There is no contract between you and the Water Corporation for the provision of consultancy services. You agree, don't you?---For consultancy service there was no contractual arrangement, no. However, there was a consultancy component within that, which you seem to fail – to overlook. Sir, do you accept, please, that there was no contract between you and the Water Corporation?---There was a contract between me and the Water Corporation. Between me and Nancy Penney, who was the person I dealt with at the Water Corporation. So you're now claiming, are you, that there was a contract between you and the Water Corporation?---No. It was a verbal understanding. Is it a verbal understanding or a contract, please?---It's a verbal understanding. A verbal understanding between you and Ms Penney?---Yes. Right. That is the first time you mention that in any of the responses or submissions or evidence you've given so far, isn't it?---It's the first time I've been asked the question. Seriously, Professor Dadour?---Yes. What have we been doing since 3 November 2014? You've been asked to justify your position in relation to these four invoices?---Yes, but I have to dredge the available information to me to find these things out and to sort these things out. You didn't need to dredge through any information to recall over the course of the last 12 months that apparently you had had a discussion with Ms Penney and you had some kind of verbal understanding with her. That didn't require you to dredge information, did it?---Well, it's only just – I have just thought about it now. You've just thought about it now. Another recent invention on your part?---Apparently. Correct?---No. It's not an invention. Do you know what the definition of invention is? ” [128] As to the nature of the work that was involved in this private consultancy he says was agreed with Ms Penney Professor Dadour explained: “ All right. Now, your position, as we've heard it now, is that you had a private consultancy with the Water Corporation based on what you now say was a verbal understanding between you and Ms Penney. Is that right?---That's how we had it, yes. And what you say is the work you did for Water Corporation was on your time and a direct engagement of you and not UWA. Is that what you're saying?---That's correct. And you've claimed in your statement – though I think you've accepted otherwise – that your job at UWA was not as an entomologist?---Not really, no. Even though you accepted earlier today that 40 per cent of your time was to conduct research, including research as an entomologist?---But you didn't listen to what I said which is I said that most of my research is to do with obtaining grants - - - Can I - - -?--- - - - which is in Forensic Science , which covers some entomology but also anthropology. The Water Corporation project was an entomology project. Correct?---Yes, it was. And it was being performed by UWA?---That's correct. And it was being performed by the Centre for Forensic Science?---That's correct. Right. The Centre for which you are a Director?---That's correct. And the Centre for which you were partly responsible for conducting 40 per cent of your time on research?---That's correct. So this was Water Corporation – the Water Corporation work was being performed within your Centre. Correct?---Yes. As a consultancy. Of the University. Correct?---Correct .” [129] There is no evidence that the other two employees of Water Corporation to whom he had sent four of the nine quotes, Mr Hegney and Mr Toleman were aware of a private consultancy arrangement Professor Dadour says Ms Penney verbally entered into with him on behalf of the Water Corporation. [130] There is no documentation of any private consultancy arrangement between the Water Corporation and Insect-Tec. [131] In November 2008 Professor Dadour wrote a letter to UWA’s research grants office regarding a research grant and the Water Corporation. The research grant was to be entitled “ Fly Monitoring in Biosolids ”. Professor Dadour had completed the paperwork attached to this letter which indicated that the project involved was a new research contract/tender. The type of research activity was identified as applied research. Professor Dadour signed off as certifying all the responses on the attached paperwork were correct. Attached was a Water Corporation contract establishment request which specified that the contract cost estimate was $240,500 which was signed as submitted by Ms Penney in September 2008. [132] None of these documents provided to the UWA research grants office by Professor Dadour indicated in any way that there was a private consultancy between Professor Dadour/Insect-Tec and the Water Corporation or that such an arrangement was any part of the work to be done for the Water Corporation. [133] Professor Dadour did not in any other way make it known to UWA that there was a private consultancy he had with the Water Corporation. [134] Whilst Professor Dadour’s evidence was that the work for the Water Corporation was a University consultancy he said it had a private consultancy component in. However his evidence was that he did not privately have workers compensation or professional indemnity insurance and did not provide any other resources for the consultancy. [135] Throughout the period when the Insect-Tec invoices were being drawn up by Professor Dadour and sent to UWA for payment, 2009 through to 2013, Professor Dadour as the Director of the Centre for Forensic Science was required to complete and lodge the Checklist referred to in paragraph [58] above. The Checklist has sections with questions concerning respectively risk management, financial reporting, financial management and additional disclosure. In the additional disclosure section there is as follows: “ 5. Related party transactions Any related party transaction or transactions that potentially give rise to a conflict of interest have been disclosed to the Executive Director, Finance & Resources .” [136] In none of the Checklists for the Centre for Forensic Science for the calendar years ending December 2009, 2010, 2011, 2012 or 2013 was there any related party transaction entered. Professor Dadour had signed three of these Checklists being those for the calendar years ending December 2010, 2012 and 2013 confirming that along with the other signatories that he had made appropriate enquiries and was satisfied the appropriate internal processes and procedures had been maintained and that to the best of his knowledge the areas detailed had been reviewed and actioned as necessary for the stated reporting period and appropriate information forwarded to the Faculty and financial services. [137] In March 2013 Professor Dadour completed an Annual Declaration of Interest Form. 21 The header of the document states that the person signing it has set out their interests in accordance with the UWA Conflicts of Interest Policy. On the form Professor Dadour declared he had current employment external to UWA as follows: “ I have a WA registered business name (Insect-Tec) through which I do consultancies on food, which is not directly my area of expertise at UWA .” [138] The work for the Water Corporation detailed in the quotes was not a consultancy on food. [139] Professor Dadour did not disclose to UWA in any of the multiple Checklists that were lodged for the Centre for Forensic Science of which he was the Director, nor on his personal Annual Declaration of Interest Form for any year, that he had any arrangement for a private consultancy with the Water Corporation. [140] His explanation for his failure to declare his conflict of interest and his failure to declare the related party transactions was that he viewed a conflict of interest, where it existed, as ceasing to be a conflict of interest after it is declared and that he had previously declared it to Professor Robson and to Professor Stewart. 22 [141] On a number of occasions through his evidence Professor Dadour also stated that he completed forms and documentation relying upon advice from administrators within the Centre for Forensic Science. [142] It is for the Commission to determine based on the evidence whether Professor Dadour did have a verbal understanding with Ms Penney on behalf of the Water Corporation that Professor Dadour through his business Insect-Tec would do the Entomologist work mentioned in the various quotes as a private consultancy, as he has stated was the case in his evidence. [143] The relevant evidence includes that Professor Dadour had a long-term involvement with the Water Corporation dating back to 1999 including an Australian Research Council Grant. A series of quotations were drawn up by Professor Dadour on behalf of UWA for services to be provided to the Water Corporation each of which included a line item for work to be done by an Entomologist. It is generally accepted that Professor Dadour was the only person within Western Australia qualified to carry out this Entomology work. Given this fact and given the work he had done with the Water Corporation since 1999 it is likely the Water Corporation assumed he would do the Entomologist work. 23 [144] In his evidence however Professor Dadour says that whilst he is a qualified Entomologist from 1999 his role at UWA was not as an Entomologist. 24 This evidence appears to support a conclusion that the Entomology work mentioned in the Water Corporation quotes would not be done by him as an employee of UWA but rather could only be done by him in a private capacity as a private consultancy between him and the Water Corporation. Further his evidence is that he had no position description which is accepted by UWA. This of course means there was no prescription as to what his duties as an employee of UWA were or weren’t that in any way prevented him from doing some Entomology work if required. Indeed the Agreement which applied to his employment as an academic at UWA, at clause 33−Performance of Duties, allows him to be directed “ ... to carry out such duties as are reasonable and within the limits of the employees skill, competence and training. ” In any event under cross-examination Professor Dadour conceded that whilst doing research as the Director of the Centre he did at times do some amount of Entomology work. 25 Just because Professor Dadour’s was not a fulltime Entomologist is no reason he should not have undertaken the Entomology work mentioned in the Water Corporation quotes as part of his employment at UWA contrary to what is submitted by his representative. [145] There was no business necessity for the Water Corporation or Ms Penney to enter into a private consultancy with Professor Dadour or Insect-Tec because the Water Corporation contract with UWA could have been completed with Professor Dadour doing the quoted Entomology work in his capacity as an employee of UWA. [146] The amount for the Entomology work in each quotation was expressly subject to a 15% loading for University overheads. UWA policies require express consent for a staff member to utilise any UWA facilities or resources to undertake a private consultancy. No consent had been given by UWA for Insect-Tec to do this work for the Water Corporation using UWA resources and facilities. [147] The relevant contract establishment request from the Water Corporation does not mention an agreement for Professor Dadour or Insect-Tec to undertake a private consultancy for the Water Corporation. [148] Professor Dadour has not at any time declared to UWA the existence of a private consultancy arrangement between himself or Insect-Tec and the Water Corporation. [149] None of the invoices sent from Insect-Tec to UWA by Professor Dadour mentioned the Water Corporation. [150] During the interview with Deloitte where he was asked about the invoices sent from Insect-Tec to UWA Professor Dadour did not mention a private consultancy between himself or Insect-Tec and the Water Corporation. 26 [151] The evidence is that by the time he sent the first Insect-Tec invoice for $11,000 to UWA in 2009 he had been sending out these quotes for seven years. Eight of these quotes had been sent to the Water Corporation between 2002 and 2009 which together involved more than $60,000 of Entomological work. For a business to only invoice someone seven years after having completed the work as Professor Dadour says Insect-Tec did is unusual and to then to only invoice them for a fraction of the value of the work completed many years ago is even more unusual. [152] There is no written contract for a private consultancy between Professor Dadour or Insect-Tec and the Water Corporation. [153] Professor Dadour says Ms Penney from the Water Corporation agreed to Professor Dadour providing the Entomology services he included in each quote as a private consultant. [154] Professor Dadour in his evidence having referred to Ms Penney did not mention the other two Water Corporation employees to whom some of the relevant quotations were sent as having similarly agreed to a private consultancy with him. [155] Neither Ms Penney nor any other person from the Water Corporation was called to give evidence in support of Professor Dadour’s position regarding the private consultancy arrangement. [156] It would be highly unorthodox for an employee of a business enterprise owned by the WA Government such as the Water Corporation, to commit the organisation to a consulting arrangement with another business which was not documented in any way. [157] If the Water Corporation had entered into a private consultancy with Professor Dadour or Insect-Tec then invoices for that work in the normal course would have been sent to the Water Corporation for payment not to UWA. [158] Considering all this evidence on the balance of probabilities I find that Ms Penney, on behalf of the Water Corporation, did not have a verbal understanding with Professor Dadour that he would undertake the Entomologist work identified on the quotes as a private consultancy. I do not accept Professor Dadour’s evidence that this is what occurred; there was no such verbal understanding. [159] Continuing on to the other evidence, Ms Jennifer Gamble was called to give evidence by Professor Dadour. [160] Ms Gamble has been employed at UWA since 1986. She has been employed in various Faculty offices as the Faculty Manager. During the period 2009 to 2011 she reported to the then Dean of the Faculty of Life and Physical Sciences Professor George Stewart. Since then she has been the Business Operations Manager of the School of Psychology. [161] Ms Gamble commenced working with Professor Dadour in approximately 2000 around the time Professor Stewart and Professor Dadour discussed the development of a postgraduate degree for Forensic Science and following that the establishment of the Centre for Forensic Science. Her evidence was that around 2011 there was an amalgamation of two faculties to form the Faculty of Sciences. The Faculty of Sciences comprised nine Schools, several institutes and a number of research centres including the Centre for Forensic Science. [162] Ms Gamble explained that UWA research centres operate within the mandate of a Faculty School and accordingly the research centres director is responsible for their own centres governance and management but with oversight from the relevant School or Faculty. With respect to the administrative history of the Centre for Forensic Science in 1998 then Dr Dadour headed up the stand-alone Forensic Science Unit which reported directly to the Dean. In 2002 this unit became the Centre for Forensic Science and was given autonomy to manage its affairs under the direction of the Dean. This continued until 2007 and Professor Dadour then had the authority to authorise some administrative matters. Between 2005 and 2007 the Centre for Forensic Science existed within the mandate of the School of Anatomy, Psychological and Human Biology, led by the then head of School Professor Brendan Waddell. [163] Since 2011 the Centre for Forensic Science came within the Faculty of Sciences. Accordingly since that time the Centre for Forensic Science reported directly to the Dean of the Faculty of Sciences. [164] The general administrative procedure was that paperwork would be handed to lower-level administration staff members within the Centre for Forensic Science and then passed on to an administrator at the Faculty of Sciences who made the necessary checks. [165] With respect to payments once these were processed, the payment of invoices was authorised by either the Dean or Ms Gamble herself. Ms Gamble says that there are a large number of policies and procedures implemented at UWA and she does not know the details of all of these but she would expect staff members of the Faculty to have an overview of the types of policies or procedures within UWA. She would not expect them to be familiar with the exact content of each policy but would expect them to seek assistance if required. [166] With respect to non-compliance with policies Ms Gamble said she was aware that some of the human resource policies were not strictly adhered to within the Schools and Centres. [167] Under cross-examination Ms Gamble confirmed that she was Faculty Manager in the Faculty of Life and Physical Sciences from 1999 to 2003 and that during that time she did not know that Professor Dadour held an interest in Insect-Tec. [168] Ms Gamble has no recollection of the four invoices that Insect-Tec sent to UWA. In general terms she recalls that at the time the invoices were sent to UWA she would have had finance staff who would have gone through the invoices and checked them before forwarding them to her for signature. [169] She confirmed that the invoices would have come to her with an authorisation from the Centre. She explained the Finance Team would process the payment of the invoices after they have received it with the signed authorisation. One of the checks that the administrators would do is to ensure there were sufficient funds in the relevant account. It would then be sent up to financial services for the payment to be issued. [170] Evidence was also given by Professor Stewart. Professor Stewart is the former Dean of the Faculty of Life and Physical Sciences at UWA. He was first employed at UWA in 1997. Professor Stewart was the Dean of this Faculty from 2002 until he retired at the end of 2010. [171] Professor Stewart was Professor Dadour’s superior for the majority of his employment at UWA. Professor Dadour would either report to him or report to the Faculty Head of School who would then report to Professor Stewart. [172] Professor Stewart’s evidence was that it was a common arrangement that Faculty members would seek approval from their superiors to do consultancy work on their own time. Consultancy fees would often be paid to UWA and then be put on account for the Faculty member to use as needed and these were not required to be withdrawn the day they were received. [173] Professor Stewart was in charge of managing and approving invoices that were provided to the Faculty of Science by Faculty members for consultancy work. The procedure for approving payment of invoices for consultancy work was that the invoice would come to the Faculty Office then be checked by the Finance department and once cleared would come to him or Ms Gamble to sign off on it. If there was sufficient consultancy money in the account that could be drawn on he would approve an invoice. [174] Professor Stewart says he was aware that Professor Dadour had spoken to Professor Alan Robson the then Vice Chancellor and of his approval to set up Insect-Tec to allow Professor Dadour to do consultancy work. He says they would then have had an instruction to the effect that the arrangement had been approved by his superior. Professor Stewart’s evidence is he does not really understand where the conflict of interest arises. [175] His evidence was Professor Dadour did not discuss any particular consulting invoice with him. [176] He says he was aware and it was widely known that Professor Dadour had a consultancy arrangement with the Water Corporation. He does not remember any involvement of the Western Australian Police in private consulting work although Professor Dadour did do pro bono work for them. [177] Professor Stewart’s evidence is that it is irrelevant that Professor Dadour did not withdraw the consultancy fees from his consultancy work with the Water Corporation immediately. The consultancy account was there to withdraw from when needed. [178] With regard to the four invoices in question Professor Stewart’s evidence in chief was: “ I do not remember the two specific invoices of Professor Dadour that were approved during my tenure but the procedure would have been as normal. Professor Dadour would have provided invoices to the Faculty Office by his administrator; the invoices would have been checked by the finance department and then approved by myself or Ms Gamble. In considering Professor Dadour’s claim I would have looked at his consultancy account to ensure there were sufficient funds to meet the claim and if so approved it. Professor Dadour would have gone through the usual process of filling out vendor forms as there was no other way to withdraw the money. In checking the vendor forms it would have been clear to the Faculty Office that the invoices were those of Professor Dadour. There was no subterfuge by Professor Dadour and going through this process. I presume that the other two invoices which were approved after I retired would have been approved through the same process .” [179] What is notable about this evidence is that he states he does not remember the two invoices approved during his tenure. His evidence from there is nothing more than his assumption as to what would have occurred, or a statement of general practice. [180] Professor Stewart’s evidence that the Faculty Office would have been clear that the invoices came from Professor Dadour is directly contradicted by the evidence of Ms Gamble and the fact the invoices themselves do not identify Professor Dadour as the supplier of the services. Professor Stewart’s evidence that going through this process by Professor Dadour involved no subterfuge is an expression of opinion. He was unaware of Professor Dadour’s own evidence that he removed his signature from these four invoices sent to UWA and this was the only time he ever did this of all the invoices he sent to clients from Insect-Tec. [181] Professor Stewart’s evidence regarding the latter two invoices, which were actually approved after he had retired, to the effect that he presumed they would have been approved through the same process is again an assumption he makes about matters he has no direct knowledge of. [182] Professor Stewart’s evidence in chief was that: “ If Professor Dadour had consultancy money in his consultancy account and puts in a claim for it we would have approved it .” [183] Professor Stewart’s evidence was that he would communicate with Professor Dadour at least every month and they had a good relationship. He never had any question about Professor Dadour’s honesty and integrity. [184] At the hearing Professor Stewart in his oral evidence in chief was asked about the quotation dated September 2002 27 , which had been prepared by Professor Dadour and sent to the Water Corporation and specifically the following line items: “ Entomologist (4 days at $650/day) $2,600 ” “ Research Assistant (x2) (40 days @ $220/day) $17,600 ” “ (University overheads at 15%) ” [185] His evidence was that the 15% loading for University overheads would be UWA’s payment for the facilities that would be used to carry out the consultancy. [186] Professor Stewart’s evidence was that he was aware Professor Dadour was claiming that the first line item which refers to “ Entomologist… ” is a reference to himself. Professor Stewart’s evidence was that he would expect there to have been a component for Professor Dadour’s professional services. 28 [187] With respect to the line item that refers to “ Research Assistant… ” Professor Stewart’s evidence was that he understood this to be payment for the work that a Research Assistant will carry out on this consultancy and that that payment would be made to the Research Assistant. 29 [188] When asked in cross-examination about this evidence he confirmed it was his understanding from this quotation that the Research Assistant would be entitled to the payment of the funds in that line item and that would go to the Research Assistant. 30 [189] In his oral evidence in chief he confirmed his view that the payment arrangement for the Water Corporation contract was consistent with an approach where consultancy fees will be often paid to UWA and be put on an account for a Faculty member to use as needed. These he said are not required to be withdrawn when they are received it. His evidence was that this would be very standard for people to put their consultancy funds into an account administered by UWA. They could then access it for research purposes, travel or attending conferences. 31 [190] Under cross-examination Professor Stewart confirmed that Professor Dadour was required to undertake a mixture of teaching and research, to pitch for research grants and to seek out research funding from government bodies and private organisations. [191] Professor Stewart did not readily accept that UWA entered into consulting arrangements. Nor did he accept that UWA entered into contracts with private bodies to perform research or that it entered into transactions with commercial enterprises. 32 [192] Professor Stewart accepted that it was part of Professor Dadour’s role as Director of the Centre for Forensic Science to prepare the quotes for the Water Corporation. [193] Professor Stewart accepted that the contract he had signed off on was a contract between the Centre for Forensic Science to supply services to the Water Corporation. 33 Professor Stewart’s evidence was that the contract had an item called specialist services. 34 This however is not correct. [194] Professor Stewart’s evidence was that the verbal arrangement Professor Dadour said he had with Ms Penney from the Water Corporation was part and parcel of the contract with the Water Corporation. His evidence was that there was a fee for professional services. He said it is not unusual for an academic to get a considerable part of their income from consultancies. And they would have to put into any contract they made with an organisation a quote that specified their professional fee. 35 [195] Professor Stewart did not view the documenting of a separate side consultancy as necessary. [196] Professor Stewart again confirmed what he said in his examination in chief that he does not recall the four invoices in question. [197] He confirmed he did have a discussion with Professor Dadour in 2003 about setting up Insect-Tec so that he could perform private consultancy services. [198] Professor Stewart a number of times through his evidence appeared to be confused about the propositions that were being put to him or resistant to accepting straightforward propositions. For example he would not readily accept that Professor Dadour, as an employee of UWA, when he was providing a quote from the Centre for Forensic Science was engaging with the Water Corporation on behalf of UWA. 36 [199] Whilst Professor Stewart’s evidence was that he was aware of various UWA policies that were in place during his time as Dean including specifically the PCW Policy it is apparent from his evidence that he does not now recognise the distinction made in that policy between a University consultancy and a private consultancy and is confused about these very different forms of consulting. 37 Whether this confusion is due to the fact he left UWA five years ago is uncertain. It is not clear whether Professor Stewart did understand the difference between a University consultancy and a private consultancy at the time Professor Dadour sent the Insect-Tec invoices to UWA for payment. [200] Professor Stewart’s lack of understanding of these central UWA principles in the PCW Policy concerning consultancy undermines the credibility of his evidence that the quotes to the Water Corporation and the Insect-Tec invoices should be viewed as quite normal practice and that there was nothing untoward involved. In addition Professor Stewart’s evidence as to what is normal practice is in conflict with the evidence of both Mr Logan and Dr Tay as to the operation of “63” accounts such as the “Dadour Consulting Account”. [201] Professor Stewart’s general explanation of how consultancies work and how academics can access consultancy monies appears to be totally inconsistent with the terms of UWA policies. Professor Stewart’s evidence was that consultancy fees will be often paid to UWA and be put on an account “ for a faculty team member to use as needed ” and these are not required to be withdrawn when they are received and it was standard for people “ to put their consultancy funds into an account administered by UWA ” and they could then access it for research purposes, travel or attending conferences. [202] This apparent inconsistency however may well be an example of what Mr Logan explained in his evidence as the practice of employees doing a University consultancy (as an employee of UWA) in conversation to refer to the consulting income and the UWA consultancy account as if they were their own. Mr Logan gave evidence of the operational practice where the staff member who undertakes a University consultancy is responsible for managing the funds held in that particular University consultancy “63” account. Mr Logan explained staff may refer to such funds as ‘their funds’ or as ‘belonging’ to them because they undertook the consulting work as an employee of UWA however the funds in these accounts are not the property of that employee but belong to the University. Such employees cannot access funds in ‘their’ 63 account for personal expenses. However staff may receive approval to use the funds held in the 63 account for expenses related to the University including purchasing equipment, attending conferences, hiring research assistants and assisting PhD students to meet expenses associated with their research. 38 [203] Professor Stewart’s evidence about the meaning of the line items in the quotes referring to ‘Entomologist’ was nothing more than his opinion. He was not party to the preparation of the quotes. He had no direct knowledge of the supposed verbal understanding Professor Dadour says he had with Ms Penney but notwithstanding this willingly gave evidence about it. 39 [204] Professor Stewart’s evidence that the line items in the quotes for ‘Entomologist’ and for ‘Research Assistants’ were of the same character, such that the Research Assistant and the Entomologist were each to be directly paid the amounts quoted, if accepted, requires there to have been some agreement with the Water Corporation that both the unnamed Research Assistants on the September 2002 quote were undertaking a private consultancy in the same way Professor Stewart says Professor Dadour was. 40 There is no evidence that this was the case. Professor Stewart’s evidence about what the line items for ‘Research Assistants’ means is not believable and undermines the credibility of his evidence that the line items for ‘Entomologist’ indicates there was a private consultancy arrangement between Professor Dadour and the Water Corporation which was “ part and parcel ” as he put it of the contract between the Centre for Forensic Science and the Water Corporation. [205] Professor Stewart clearly has a high regard for Professor Dadour and his approach to the matters put to him in evidence was to assume that Professor Dadour had done nothing wrong notwithstanding he did not know the detail of any arrangements Professor Dadour said explained the invoices. [206] Professor Stewart’s evidence does little to support the explanation Professor Dadour gave at the hearing of this matter at to what he says was the legitimate basis for him sending the Insect-Tec invoices to UWA. Professor Stewart did not have direct knowledge of any arrangement between Ms Penney and Professor Dadour. [207] The applicant also called Dr Guan Tay to give evidence in support of Professor Dadour’s application. Dr Tay has been employed as a part-time Senior Lecturer at UWA since 2012. He has known Professor Dadour since 1997. He initially joined UWA’s Centre for Forensic Science as an Adjunct in around 2003 and in 2012 agreed to fill a vacancy in the role of a Forensic DNA Lecturer at the Centre for Forensic Science. [208] Dr Tay in his statement gave evidence about consultancy accounts he operates within UWA. He also gave evidence as to Professor Dadour’s good character and dedication. [209] Dr Tay also gave some evidence as to some conflict within UWA concerning a review of the Centre for Forensic Science. [210] Under cross-examination Dr Tay confirmed that he has two UWA accounts one identified as “ Tay ad hoc ” the other as “ Tay consultancy ”. Both are 63 accounts. [211] Dr Tay also has a business AB Health Pty Ltd. [212] Dr Tay identified a series of contracts between UWA and various third parties in relation to project work or consultancy work that UWA was to perform through employees of UWA under his supervision. The funds from each of these contracts were going into one of the UWA 63 accounts mentioned above. [213] His evidence was that he would be able to access funds from the 63 account to undertake the research, purchase necessary equipment or undertake necessary travel but that this was subject to the guidelines and schedule of activities prescribed by the particular third party client. [214] His evidence was that in no case was there any allocation for him to be personally remunerated even though it was accepted in each contract that he would be the person performing the supervision of the work. Dr Tay’s evidence under cross-examination consistent with the evidence in his statement was that he never claimed personal remuneration from the monies held within the 63 accounts. [215] Mr Logan the UWA Director of Financial Services gave evidence for UWA. Mr Logan has worked on various financial and accounting roles within UWA since 2001. [216] Professor Dadour’s Counsel objected to much of Mr Logan’s evidence on the grounds that it was opinion evidence based on speculation. Section 591 of the Act however says that the Commission is not bound by the rules of evidence. Given that and noting Mr Logan’s position and long experience at UWA and that he was not cross-examined I do accept his evidence in full. [217] Dr Tay’s evidence above as to the operations of 63 accounts was consistent with the evidence of Mr Logan as to the operation of these accounts and the limited circumstances in which a University employee could be directly paid monies from a UWA 63 account. 41 [218] Mr Logan’s evidence for UWA is that having viewed the quotations given to the Water Corporation by Professor Dadour, each of which has a line item for an ‘Entomologist’, in his view this work was part of a UWA consultancy with the Water Corporation and is not a private consultancy. This means that the fees paid in respect of the consultancy are paid to and are the property of UWA. 42 I however do not accept Mr Logan’s view in isolation as being conclusive on this point – it is just his opinion and does not take into account Professor Dadour’s evidence of a verbal arrangement with Ms Penney. [219] Mr Logan also gave evidence as to the manner in which University accounts operate. He gave evidence about what are referred to as “63” accounts. 63 accounts are a group of accounts used for local level generated unrestricted activities primarily for consultancies. Staff members who undertake a University consultancy are often responsible for managing the funds held in a particular 63 account, that is for the revenue received from and the expenditure for the consultancy activity. Mr Logan’s evidence was that staff may refer to such funds as ‘their’ funds or as ‘belonging’ to a particular university employee however all such funds in these 63 accounts are not the property of that employee they belong to UWA. This is clearly set out in the policies. [220] Employees cannot access funds in a 63 account for personal expenses. An academic may receive approval to use the funds held in the 63 account for expenses including purchasing equipment attending conferences, hiring research assistants and assisting PhD students who are at UWA to meet the expenses associated with their research. [221] I note again that this evidence about the use of University 63 accounts very much aligns with the evidence that Professor Stewart gave 43 about how academics access monies in University accounts that are from University consultancies. However as noted above Professor Stewart in his evidence did not accept or understand the difference between a University consultancy and a private consultancy. [222] Mr Logan’s evidence was that Professor Dadour had a 63 account set up so that he could manage University related expenses. Records from that account show that various amounts were paid into the account which are attributable to consultancy work carried out for the Water Corporation by UWA. Mr Logan’s evidence was that if Professor Dadour wanted to access that these funds for legitimate University related purposes, such as to support a student such as Dr Margi, it would be open to him to do so. [223] Mr Logan also gave evidence regarding the approvals required to undertake consultancy work. His evidence was that even if Professor Dadour was given approval by Professor Alan Robson in 1999 to establish Insect-Tec and also as he said by Professor Stewart in 2003 to use Insect-Tec to undertake consulting these approvals cannot operate as a blanket approval to undertake future consultancy work. [224] The approval to establish a private consulting business entity such as Insect-Tec is separate from the approval to undertake particular consultancy work. [225] Mr Logan’s evidence was that under the policies Professor Dadour was still required to obtain prior approval before undertaking consultancy work and any such work he undertook through Insect-Tec he was required to have approved and to declare. [226] Under the policies staff are obliged to commit to on-going disclosure of conflicts of interest and related party transactions. Mr Logan’s evidence is that in addition on each occasion Professor Dadour issued an Insect-Tec invoice to UWA he should have openly and transparently declared to the person approving the invoice that it was an invoice from his own business. [227] Mr Logan’s evidence was that UWA policy prohibits staff approving their own payments. I note the evidence is that Professor Dadour contrary to this signed the Authorisation Form as the initial step in approving payment of Insect-Tec invoice 107. [228] A number of the recommendations of the SMR that were accepted by UWA as warranting Professor Dadour’s dismissal referred to him having rendered invoices in respect of consultancy work he performed for the WA police on a pro bono basis. This conclusion was unsurprising and was consistent with the particular explanation Professor Dadour had given at the time in regard to Insect-Tec and the four invoices when interviewed by Deloitte. 44 His explanation at the time in summary was: Insect-Tec was developed to do consultancy work. The invoices were for Entomology consultancy fees. He did a lot of work for the police, the horticultural industry and the food industry. The sort of consultancy work he did was pro bono for the police. The pro bono work he was doing added up to $105,000 per annum. He had requested the police come to an arrangement with him for a retainer of $50,000 each year but they had rejected that. He says he went to his Dean and Professor Stewart said bill it back to the University and that’s what he did. He said the University only paid him for 37.5 hours per week but he probably spends 80 or 90 hours a week doing his job. He bought in $7.8 million into the University in the last four years. Every now and then he put in an invoice to pay himself for the consultancy work that he did and he had permission to do that. [229] Considering all of the evidence before the Commission, much of which was not available to the SMR originally, I accept that the invoices from Insect-Tec to UWA were not for work Professor Dadour had performed for the WA police on a pro bono basis. This conclusion whilst reasonably drawn at the time the SMR’s recommendations were prepared is not supported by the current evidence. [230] UWA called a number of other witnesses who gave statements. None of these witnesses were cross-examined. Professor Dadour’s Counsel objected to some aspects of each of these witnesses on various grounds. As mentioned earlier section 591 of the Act says the Commission is not bound by the rules of evidence. I have where necessary considered these objections. [231] The following witnesses gave evidence for the respondent. [232] Ms Zoe Weir a Workplace Consultant and Director of the HR Consulting Business, Leading People and Performance. [233] Mr Gert Beukes who is a Partner with Deloitte Touche Tohmatsu whom undertook the investigation into the allegations against Professor Dadour and conducted the interview with him. [234] Professor Alexander Cameron the current Deputy Vice Chancellor of UWA of Western Australia. Professor Cameron was the SMR appointed to progress the investigation into the allegations made against Professor Dadour. His view was that Professor Dadour’s conduct represented a considered and constructed arrangement which he put in place in order to derive a personal benefit to which he was not entitled. He considered Professor Dadour’s conduct warranted the termination of his employment and this is what he recommended. [235] With regard to the mitigating factors raised by Professor Dadour in his response to this recommendation, which included his status as a Winthrop Professor and as the Director of the Centre for Forensic Science and his role in establishing the Centre, his contributions to the fields of forensic science and his financial contributions to the University Professor Cameron’s view was that these did not persuade him that termination was inappropriate. I accept the evidence of Professor Cameron. [236] Professor Paul Johnson currently the Vice Chancellor of UWA gave evidence that Professor Dadour had exercised his right for a review of the SMR, Professor Cameron’s, recommendation that his employment be terminated and this was undertaken by a Review Committee. Professor Johnson received the Review Committee’s report which upheld that recommendation. Professor Johnson also had copies of Professor Dadour’s request for the review of the recommendation, the closing submissions to the review made on his behalf, UWA’s outline of submissions to the review and their closing submissions and the individual investigation report and Professor Dadour’s response to the investigation report. He was also provided with a copy of the transcript of the Review Committee proceedings. [237] Between approximately 5.00 p.m. and 11.00 p.m. on 2 April 2015 he read those documents and at 11.04 p.m. sent an email to Professor Freshwater stating that having reviewed the documents and the transcript he was minded to accept the recommendation of the Review Committee that the appropriate action would be the termination of Professor Dadour’s employment. [238] Professor Johnson’s evidence was that he had formed the view that Professor Dadour through his business Insect-Tec had delivered invoices to the University for work which had not been done. Professor Dadour’s different and conflicting explanations for issuing the Insect-Tec invoices given at the original investigation and then the Review Committee process caused him to question Professor Dadour’s credibility and form the view that his explanations were untrue because they could not all be correct. His evidence was it was clear that Professor Dadour had consciously and deliberately attempted to and did indeed extract funds from the University in a manner which was in contravention of University policy and in a manner which was intentionally fraudulent. [239] It is incumbent on the University and all of its employees to adhere to best practice and manage public funds according to the high standards of propriety and this is particularly so for senior staff members such as Professor Dadour. [240] Professor Johnson did not consider any of the mitigating factors raised by Professor Dadour justified a lesser penalty than termination of employment given the seriousness of his misconduct. The decision to terminate Professor Dadour’s employment was his and his alone. [241] I accept the evidence of Professor Johnson. The applicant’s submissions [242] For Professor Dadour it is submitted that indisputably, he was entitled, as part of his terms of employment with UWA, to perform consultancy work for not more than 20% of his time (i.e. the equivalent of 1 day per week), and was entitled to receive fees for that consultancy work. [243] The series of quotes which Professor Dadour sent to Water Corporation all show a charge for “ Entomologist ”, at rates per day which increased over time (the time span being 2002–2009). Professor Dadour’s evidence is that those charges for “ Entomologist ” were for his services as a consultant, and that the fees for those services, separately shown in the quote, were consultancy fees to which he was entitled. It is important to note that he was not employed by UWA as an Entomologist or to provide Entomological services on UWA’s behalf. His title and his role was Director of Centre for Forensic Science. [244] He did not seek to draw those fees immediately, but would draw on the account into which the fees were paid from time to time, leaving the balance in the account. [245] As and when he drew on the account, he would issue an Insect-Tec invoice to UWA. The relevant invoices total $38,500. As Professor Dadour has said those four invoices did not cover the total of the consultancy fees to which he was entitled, and there remains (or should remain) an amount in credit in the account held by UWA. [246] Professor Dadour’s evidence, which is not disputed, is that the name “ Insect-Tec ” on the invoices was a name which he had registered with UWA, and it therefore knew (or ought reasonably to know) that he was the proprietor of that business name. [247] His prime consulting engagement was with the Western Australian Water Corporation. In 1999, Professor Dadour, with the full knowledge of the then Dean, Professor Stewart was part of the team that was awarded a SPIRT Grant for the value of $445,467.00. [248] The initial SPIRT Grant was from 1999 to 2001. However, what it did was commence long term research with the Water Corporation into stable flies and human waste. [249] Being long term research, the activities continued with regular additional consulting funding from the Water Corporation until 2011/2012. The total funding was approximately $1,000,000.00. Of these monies, there was approximately $74,500.00 identified in the quotations as allocated for an “ Entomologist ”. 45 [250] These quotations were on UWA letterhead and included all services to be provided to the Water Corporation. An identifiable component of each quotation was for a consultant Entomologist. [251] This Entomology consultancy work was required to enable the wider Water Corporation research work to proceed. Professor Dadour is the only Entomologist in Australia who is competent to do this work. [252] The Entomology work was outside his role as the Director of the Centre for Forensic Science. He was not engaged to do entomology consultancy on UWA’s behalf. [253] Professor Dadour did not have a separate contractual arrangement with Water Corporation, but the person with whom he dealt at the Water Corporation, Ms Penney, knew that he was the Entomologist providing his consultancy services. There was nothing unusual or remarkable in having one quotation which included the fee for his Entomological consultancy services. And dealing with it in that way meant that UWA got a benefit; its 15% mark up. [254] Professor Dadour took advice from the Faculty Accountant as to the most appropriate accounts into which funds for research and consultancies should flow. [255] Professor Dadour was advised by the Faculty Accountant that large payments should go into accounts numbered 42 or 47 as UWA receives a research quotient for those funds. The smaller amounts, although there were many more of them, should be deposited into what is termed the 63 account. [256] As a result, funds that were received went into the 42, 47 and 63 accounts. Given he has had no access to the UWA system it is impossible to determine the exact breakdown, however in the order of 70% of the funds were in the 63 account. [257] When advised to do so, in 1999, he met Deputy Vice Chancellor Professor Robson, declared his interest in Insect-Tec and was given approval to hold an interest in Insect-Tec to undertake private consultancy work. Professor Dadour met all requirements to have Insect-Tec registered with UWA. [258] The vendor registration forms make it clear that Ian Dadour is “Insect-Tec”. [259] Professor Dadour and Professor Franklin completed the Intent to Purchase forms and attached an Insect-Tec invoice on each occasion; there is only one where Professor Franklin countersigned the invoice. The others were countersigned by Ms Gamble. The Intent to Purchase Form was an initiative of Professor Dadour. [260] The final approval to pay sat with the Dean, or his delegate, the Faculty Manager. [261] The assertion that Professor Dadour removed his signature from the invoices in order to conceal his interest and achieve a dishonest purpose is not correct. His signature was not required as the invoice was attached to a UWA Intent to Purchase form, and in any event his involvement with Insect-Tec was known to UWA, and obvious. [262] Professor Dadour was never requested to complete an annual Request to Consult form, nor the annual Declaration form, which he completed in 2013 when first requested. [263] UWA has put emphasis on there being an annual requirement to complete these forms. However, the applicant submits other than creating a policy stating this requirement there was no training or advice to staff affected and who were subsequently expected to comply with these requirements. [264] Professor Dadour says that requirements to complete a form to consult annually and an annual activity form, were not implemented, and that he was not aware of any requirement to seek permission to consult, on an annual basis. Furthermore, his consulting for the Water Corporation and other businesses was known and sanctioned by Professor Stewart. [265] The acceptance by UWA of the process Professor Dadour adopted with respect to his consultancy fees is confirmed, the applicant submits, by the evidence of Professor Stewart who was Dean of the Faculty of Life and Physical Sciences from 2002 until his retirement at the end of 2010. His evidence is of particular importance. He is the only witness, apart from Professor Dadour, able to speak directly to the matters in issue. He says that for the majority of his employment at UWA he was Professor Dadour’s superior, and that Professor Dadour would either report to him or to a Faculty Head of School who would then report to him. [266] Professor Stewart explained that it was a common arrangement that Faculty members would seek approval from their superiors to do consultancy work in their own time. His evidence totally refutes the allegation that the procedure adopted by Professor Dadour was improper or fraudulent. [267] It is submitted the Commission should emphatically refuse Counsel’s invitation to reject the evidence of Professor Stewart. The reasons suggested for doing so are specious. The Commission should accept his evidence, as someone independent, able to give direct evidence of relevant events, and in particular the procedures which in practice were adopted by academics charging consultancy fees, and the propriety of Professor Dadour charging a fee for his consultancy services, shown in the quote to Water Corporation. [268] UWA failed to educate, advise, guide and direct staff in the Centre for Forensic Science on the required systems, particularly where they changed over time. [269] UWA asserts that Professor Dadour was at fault by not completing an annual Declaration of Interest form. Professor Dadour did complete such a return in 2013 when told it was required. He did not complete any returns previously as he was not aware of the requirement to do so. [270] Given the standing and reputation of Professor Dadour, the decision to terminate his appointment was made with inexplicable and extraordinary haste. [271] Professor Dadour was stood down, and investigated by Deloitte who framed the allegations and then conducted the investigation. The initial allegations were in relation to: (a) Procurement of goods and/or services from: (1) DKSH Australia Pty Ltd (DKSH); (2) BurgTec Australasia Pty Ltd (burgTec); (3) Primo Analytical Pty Ltd (Primo Analytical). (b) Professor Dadour’s financial interest in Insect-Tec and procurement of goods and/or services from Insect-Tec; (c) Appointment of non-university staff members to the Centre for Forensic Science; (d) Storage, possession and/or use of firearms and/or ammunition. [272] All but one (the Insect-Tec allegation) of these allegations were ultimately accepted to be baseless. [273] Professor Dadour’s name was not on the Insect-Tec invoices because his entity was registered as a preferred supplier with UWA. In addition, the invoices were covered by the required Centre for Forensic Science Intent to Purchase Form. These documents have never been recovered by Professor Dadour because since his suspension UWA has refused him access to his computer files. [274] It is submitted that the allegations are improbable and that Professor Dadour would not have risked ruining his reputation and career unless he believed he was entitled to the Insect-Tec payments. [275] It is also submitted that there is no motive for Professor Dadour to have misappropriated the $38,500. There is no evidence he was driven to do so because of his financial circumstances. It is submitted that the amount allegedly misappropriated was comparatively small. [276] It is submitted that the relevance of the evidence as to how he spent these monies, that is giving much of the $38,500 to Dr Magni, is that it illustrates that Professor Dadour did not need nor use the money for himself and was a generous man, making it even more unlikely that he would defraud UWA. Procedural Failings [277] Counsel for Professor Dadour also made extensive submissions regarding a range of procedural fairness concerns. [278] It is submitted UWA breached S6.1 of Schedule D of the Agreement which requires that a report be produced to the Vice Chancellor or Senior Deputy Vice Chancellor, where there may be misconduct or serious misconduct. [279] The report is to provide information on the nature and details of the misconduct and the steps taken to resolve it. [280] No such report was produced. The series of emails on which UWA seeks to rely do not meet this requirement. There were no clear allegations in the emails, certainly nothing to warrant a finding of misconduct or serious misconduct. [281] It is also submitted UWA also breached S2.1 of Schedule D of the Agreement which gave Professor Dadour the right to discuss any issues of concern with his supervisor and together seek to resolve any issues. [282] Professor Dadour complains that he was invited to a meeting ostensibly about organisational change only to be told without any prior warning that he was being suspended. [283] Complaints are made about the Deloitte investigation process and the recommendation contained in its final report. [284] Following the recommendation by Professor Cameron which was provided to Professor Dadour in writing which was that he accepted the findings of the Deloitte’s report Professor Dadour sought a review of that recommendation. [285] Complaints are made on Professor Dadour’s behalf about the forming of the Review Committee, and also about the conduct of the Review Committee. [286] Complaints are also made about UWA’s closing submissions to the Review Committee. [287] Notwithstanding the Review Committee process on behalf of Professor Dadour it is submitted that notwithstanding Professor Johnson as the Vice Chancellor is empowered under the Agreement to receive the Report from the Review Committee and make a determination he should have separately enquired into the fairness of the process on the accuracy of the information before taking any decision. [288] Ultimately it is submitted there is no valid reason for Professor Dadour to have been dismissed and in the alternative the procedural failings of UWA make the dismissal harsh, unjust or unreasonable. [289] It is submitted that Professor Dadour has had his reputation damaged irreparably and in order to restore that and his career an order that he be reinstated is the appropriate remedy. The respondent’s submissions [290] The respondent submits the central issue in this case is whether there was a valid reason for the termination of Professor Dadour’s employment. [291] The facts are: (a) Professor Dadour claimed and received payments totalling $38,500 from UWA. (b) Professor Dadour had no contractual or other entitlement to receive these funds. (c) In order to claim and receive these funds, Professor Dadour issued four invoices from his private business, trading under the name Insect-Tec, to himself as the Director of the Centre for Forensic Science. (d) Unlike every other invoice issued by Insect-Tec over the relevant period (from 2009 to 2013), Professor Dadour made a conscious and deliberate decision to remove his name and sign off from the relevant invoices. (He never provided a satisfactory explanation as to why he made this deliberate decision and it is submitted adverse inferences should be drawn from such conscious conduct on his part.) (e) These were the only four invoices that Professor Dadour ever issued to UWA. [292] There was an obvious conflict of interest in issuing invoices from himself to himself. [293] When first asked to justify the invoices, Professor Dadour provided an elaborate answer to the investigator, from Deloitte, to the effect that he had spent an inordinate amount of time performing pro bono work for the WA Police with no compensation and that Professor Stewart had authorised him to “ bill back ” those monies to UWA. [294] Ever since that time, Professor Dadour has changed his explanation of the invoices. He has ultimately landed upon the justification that he had a private consultancy with the Water Corporation within or alongside a University consultancy, and the invoices were issued to draw down on monies paid to UWA by the Water Corporation for this alleged private consultancy. [295] That explanation was never proffered to Deloitte. Further, Professor Dadour is unable to point to any contract between himself and UWA or between himself and the Water Corporation to corroborate his claim. [296] During his cross-examination Professor Dadour claimed for the first time in a period of 12 months during which he had been on notice of the allegations against him there was an understanding or arrangement with Ms Penney at the Water Corporation under which he was engaged as a private consultant. Professor Dadour now claims that, whilst preparing quotes for and on behalf of UWA and discharging his duties in furtherance of UWA’s interest, he was privately negotiating a side deal, which was not documented, for his own personal benefit. He conceded that he failed to disclose this side arrangement to UWA. [297] That in itself, the respondent submits, is a fundamental conflict of interest which amounts to serious misconduct and provides a valid reason for termination. [298] Professor Dadour’s current justification is also inconsistent with the various certifications and declarations he completed during his employment with UWA in which he was required to disclose conflicts of interest. On one occasion in 2013, he disclosed that he held an interest in Insect-Tec but was performing consultancies relating to “ food ”. He otherwise did not disclose any related party transactions. If, as he now contends, he held a private consultancy with the Water Corporation, simultaneously with the UWA consultancy with the Water Corporation, it would follow that each of the declarations and certifications provided by Professor Dadour to UWA were false. That too in itself is a fundamental breach of his obligations and would provide a valid reason for termination. [299] Professor Dadour’s many and varied explanations and justifications are inconsistent and implausible; they render his evidence highly questionable and as ultimately self-serving. [300] These varied explanations were all post-fact reconstructions seeking to retrospectively justify his improper conduct. It is submitted none of them should be accepted by the Commission and, taken together, they provide a legitimate and compelling reason for the Commission to reject Professor Dadour’s story. [301] Professor Dadour’s conduct amounted to serious misconduct as defined in clause 1.3 of Schedule D of the Agreement. It was serious misbehaviour and a dereliction of his fundamental duties in a way that was repugnant to, and incompatible with, his senior leadership position at UWA. [302] His conduct breaches many of UWA’s most important policies and amounts to a misappropriation of funds to which he was not entitled. [303] If it is accepted there was a valid reason for the termination of Professor Dadour’s employment, it necessarily follows in this case that the termination was not harsh, unjust or unreasonable. This is because, the gravity of Professor Dadour’s misconduct outweighs any alleged procedural flaw or other mitigating factor. [304] In any event, Professor Dadour availed himself of every possible and extensive opportunity to be heard over a period of five and a half months. This, together with his unwillingness to accept any wrongdoing on his part and the nature of Professor Dadour’s dishonesty, mean that the only reasonable conclusion open to the Commission is to dismiss Professor Dadour’s application. Valid reason [305] Professor Dadour claimed and received monies from UWA to which he was not entitled. This fell within the meaning of serious misconduct under the Agreement. [306] For Professor Dadour to issue invoices from himself to himself was a conflict of interest. This conflict was compounded by then approving the payment himself as he did in relation to one of the invoices. [307] Professor Dadour removed his name and sign off from each of the four invoices thus concealing he was the Principal of Insect-Tec. [308] The invoices were a fiction because no consultancy work had been provided to UWA by Insect-Tec. [309] By this process, Professor Dadour was paid monies from UWA’s accounts to which he was not entitled on four occasions. Why the applicant’s current explanation must be rejected [310] Professor Dadour has sought to explain his conduct under cross-examination by pointing to the existence of a private consultancy or “arrangement” with Ms Penney of the Water Corporation. [311] This current explanation is inconsistent with the explanation he provided to Deloitte. He had been given fair warning prior to the interview that the four invoices were to be discussed. However he made no mention of the Water Corporation consultancy, or quotations let alone any arrangement with Ms Penney. [312] The current explanation is also inconsistent with the evidence he gave to Deloitte that the quantum of each invoice was selected from different “things” and at “random”. [313] None of the invoices refer to the Water Corporation. None of the invoices mention drawing down on funds paid by the Water Corporation to UWA. [314] All of this is consistent with the Water Corporation construction being a self-serving post fact reconstruction. [315] There was no contract between the Water Corporation and Insect-Tec. [316] Professor Dadour’s particular conduct was not approved at any stage. Professor Robson did not approve it. He only authorised Professor Dadour to establish Insect-Tec. [317] Professor Stewart did not give Professor Dadour approval to claim monies in the way he did. Professor Dadour conceded Professor Stewart never told him to provide consultancy services through Insect-Tec and issue invoices to UWA. 46 [318] Professor Stewart’s only recollection was of a discussion with Professor Dadour in relation to the establishment of Insect-Tec to enable Professor Dadour to perform private consultancy work. 47 Further, Professor Stewart had no recollection of actually approving the invoices and two of them were issued after he had left UWA. [319] The Commission should also reject Professor Dadour’s claim that there were other “administrators” who approved the process whereby Professor Dadour could issue invoices to UWA to claim a part of the monies paid by the Water Corporation to UWA. Professor Dadour alleged for the first time during cross-examination that an administrator by the name of Michael Arkins had approved his issuing Insect-Tec invoices to ‘recoup’ consultancy fees relating to the services provided to the Water Corporation. 48 This proposition cannot be accepted without any substantiating documentary or oral evidence; it is entirely incredible. [320] Moreover, it is inconsistent with Professor Dadour’s assertion that Professor Stewart had sanctioned the process. If this were true, Professor Dadour had no reason to seek or obtain the approval of Mr Arkins. [321] Further, Professor Dadour’s claimed reliance upon “administrators” is a specious, unproven response given by someone who accepts he was one of the most senior academics at the University. [322] That Professor Dadour’s conduct would never have been approved is confirmed by a number of senior academics and administrators whom were UWA’s witnesses. [323] None of these witnesses corroborate Professor Dadour’s views as to appropriate and acceptable practices in relation to private consultancies, the appropriation of funds as personal remuneration, or the declaration and management of conflicts of interest. Indeed had UWA been aware of the true factual background to the invoices, they would never have been paid. This is made clear in the evidence of Mr Logan and Professor Johnson. [324] The alleged existence of the Water Corporation private arrangement or consultancy is inconsistent with the 2013 Annual Declaration Form, in which Professor Dadour claimed that his only outside consultancies related to food, and with his FRRR Forms. [325] Therefore either those declarations were knowingly false, in that they failed to disclose the alleged Water Corporation private consultancy, or Professor Dadour’s current explanation is a post fact reconstruction. In either case, the result is that Professor Dadour’s position is discreditable. [326] Finally Professor Dadour’s claim that it was not part of his employment to perform Entomological services was a further recent invention and post fact reconstruction. He admitted in cross-examination that he had never, prior to 9 February 2015, taken the position that Entomology work was outside his duties at UWA. [327] The Water Corporation work was performed using UWA’s time and resources, including a Research Assistant(s). It was therefore clearly a University consultancy, as Professor Dadour admitted. Summary [328] If the Commission is to accept Professor Dadour’s contention and excuse his conduct, it will have to ignore completely the first and then subsequent different explanations given by Professor Dadour as to the purpose of the invoices. [329] Further, the Commission will have to accept senior Academics can issue invoices to themselves to draw payments from public monies, and later justify them by reference to private oral arrangements with other public institutions, which are not documented and which were not mentioned when the allegations were first raised. That cannot be seriously entertained. [330] Nor can it be entertained on the scant evidence before the Commission that Professor Stewart authorised the conduct. The evidence does not even remotely rise that far. This was a matter for Professor Dadour to prove – i.e. that he had authorisation. His own evidence on that point was inconsistent and Professor Stewart’s evidence was unreliable and ultimately of no assistance. [331] The true position, as Professor Dadour later admitted, is that from time to time he felt there was sufficient money in various accounts that he wanted to be able to draw upon for his own purposes. [332] He treated monies paid to UWA as his own, claiming that they were set aside for private consultancies without any documentary support to establish such a contractual entitlement, in defiance of basic principles of corporate governance, and in breach of UWA’s policies and his obligations as an employee. [333] In light of the weight which must be attached to the evidence tendered by UWA, it is not reasonably open to the Commission to accept any of the propositions on which Professor Dadour seeks to rely to justify the receipt of $38,500. Other relevant factors [334] In addition to finding that there was a valid reason for Professor Dadour’s dismissal, the Commission must consider each of the factors enumerated in ss.387(b), (c), (d), (f) and (g) of the Act. None of those factors provide any basis for the Commission to find that the dismissal was harsh, unjust or unreasonable. [335] Professor Dadour was not denied procedural fairness. Although he has made serious allegations against several senior members of UWA (including the Vice Chancellor), none of those matters were put to any of UWA’s witnesses. Professor Dadour should not be permitted to rely upon them given the rule as to fairness enunciated in Browne v Dunn . 49 [336] The decision to terminate Professor Dadour’s employment was made after an exhaustive process whereby Professor Dadour was given repeated opportunities to respond to the allegations and to adduce any further materials to support his position. Professor Dadour availed himself of all those processes and his submissions were carefully considered first, by Professor Cameron and then by Professor Johnson. [337] Ultimately, if the Commission finds there is a valid reason for termination, any procedural irregularities (which are denied) in relation to the process do not amount to a denial of procedural fairness such as to render his dismissal unjust or unreasonable. [338] None of the mitigating factors raised by Professor Dadour outweigh the gravity of his misconduct. This is clear from the evidence of the Vice Chancellor. 50 [339] As to the harshness of the outcome, it is Professor Dadour’s own conduct, and not that of UWA which has caused him to lose his employment. In view of his conduct and persistent inability to accept responsibility, the decision to terminate his employment was a proportionate and reasonable response. [340] The respondent submits the application should be dismissed. [341] In the event that the application is upheld, it is submitted reinstatement would not be an appropriate remedy. [342] There is no relationship of trust and confidence between UWA and Professor Dadour as established throughout the course of the hearing. Professor Dadour alleges that Professor Cameron has threatened or blackmailed him, Professor Freshwater is out to get him, Professor O’Donnell has bullied him, Professor Johnson was biased, and the Review Committee members were also biased. [343] Equally, UWA cannot maintain a relationship with Professor Dadour having regard to his utter disregard for compliance with University policies, his repeated blaming of administrators and others for his own failures, his failure to accept any responsibility for his conduct, and his disdain for senior members of UWA. [344] Reinstatement in these circumstances would be untenable. The appropriate order would be an award of compensation in a nominal amount. Consideration [345] Since 2002 Professor Dadour has been the Director of the Centre for Forensic Science. The Centre has 9 Academic staff, 5 research staff and 21 adjunct positions and approximately 80 students are enrolled in its courses each year. [346] Professor Dadour held a position which was one of the most senior positions in UWA outside of the executive management. [347] Professor Dadour was a long serving member of UWA’s Academic staff. His employment was subject to a series of contracts of employment the most recent being signed by him in 2005. [348] Each of those contracts expressly stated that his appointment was subject to the statutes and regulations of UWA and any general directions issued by the Senate. Professor Dadour understood this to be the case. [349] The conditions of his employment were also governed by the Agreement. [350] Clause 33 of the Agreement states that the Vice Chancellor or nominee may direct an employee to carry out such duties as are reasonable and within the limits of the employee’s skill, competence and training. [351] The Agreement provides at clause 48 that misconduct and/or serious misconduct shall be dealt with according to the procedures set out in Schedule D – Misconduct. [352] Professor Dadour, along with all UWA staff, was obliged to comply with UWA’s Code of Ethics and Code of Conduct and various related policies. Professor Dadour was sent copies of the Codes with accompanying correspondence from the Vice Chancellor on numerous occasions throughout his employment. That correspondence emphasised the importance of the Codes and provided a list of contact persons for any specific queries about them. [353] Professor Dadour was aware of the University PCW Policy and relied on it in his evidence. [354] The PCW Policy provided amongst other things that he was entitled to undertake private consultancy for up to 20% of his time. [355] The PCW Policy includes definitions which explain the difference between University consultancies and private consultancies and details the respective requirements Academics, including Professor Dadour, are required to observe for each type of consultancy. The policy specifies how consultancy funds received by UWA from University consultancies may be spent and the requirements for UWA staff to complete and submit an annual activity return declaring all consultancy work carried out in the previous year. [356] Professor Dadour as an employee had a responsibility to ensure he was personally familiar with this and the other policies. As the Director of the Centre for Forensic Science he in addition was required to ensure that staff within the Centre were aware of their obligations and were complying with these policies. [357] Around 1999 he attended a meeting with the then Vice Chancellor Professor Robson and advised him he had an interest in a business named Insect-Tec. Professor Robson verbally authorised Professor Dadour to undertake private consultancy work as this business. [358] Insect-Tec was Professor Dadour’s business and from 2004 was registered as a sole trader. [359] Around 10 years after the discussion with Professor Robson invoices for the first time were sent to UWA from Insect-Tec. An invoice was sent in 2009, 2010, 2011 and 2013. [360] Each of the invoices, other than the duplicate of the 2013 invoice, were addressed to Professor Dadour at the Centre for Forensic Science. The description of services on the invoices was on each occasion “ Entomological consultancy ” and then either the “ Identification of Insects and survey of sites ” or “ Identification of Insects and ecological surveys ”. [361] Nothing on any of the four invoices identified Insect-Tec as Professor Dadour’s business or that he had sent each invoice. [362] Professor Dadour prepared all the invoices sent out from Insect-Tec to his various clients himself. [363] On each occasion he sent an invoice to UWA Professor Dadour removed the salutation and sign off which appeared at the bottom of every one of the 133 other Insect-Tec invoices he had sent out. That salutation and sign off would have identified that the invoice was sent by “ Dr Ian Dadour Forensic Entomologist ”. [364] Professor Dadour deliberately removed this identifying salutation and sign off when he prepared the invoice he sent to UWA in 2009, he removed it a year later in 2010, again in 2011 and also in 2013. [365] Professor Dadour’s evidence explaining why he removed the only information from these four invoices that would have identified the fact they were coming from his business was not credible. [366] Removing the sign off meant UWA staff processing the payments were not aware that he would receive the monies paid out by UWA. [367] In the case of the first invoice, sent by Professor Dadour to UWA in March 2009, he personally signed the UWA Invoice Authorisation Form as the first step in the process of authorising payment. As such he was certifying that the services had been performed for UWA. This was not true. This invoice was for the amount of $11,000 including GST. [368] All four invoices were paid by UWA. The total amount paid to Insect-Tec was $38,500. [369] Professor Dadour accepts that there was no contract between Insect-Tec and UWA for Insect-Tec to provide Entomological services to UWA. In fact at no time did Insect-Tec ever provide any such services to UWA. [370] On the face of it there was no basis for Insect-Tec to have sent these four invoices seeking payments from UWA. [371] Consequently UWA had every reason to require Professor Dadour to explain on what legitimate basis he had invoiced UWA and received the $38,500. [372] Professor Dadour has had a number of opportunities to explain why Insect-Tec was entitled to invoice UWA. [373] His first opportunity was when, as part of the misconduct procedures required to be followed under the terms of the Agreement, he was interviewed by Deloitte in November 2014. [374] The second opportunity was following the Deloitte’s report in January 2015 when his lawyers on his behalf provided a written response and further information. [375] The third opportunity was when Professor Dadour, assisted by his lawyers, provided a witness statement of his evidence for the hearing of this application. [376] The fourth and final opportunity for Professor Dadour to explain the invoicing by Insect-Tec was when he gave his oral evidence as a witness at the hearing. [377] The explanation given by Professor Dadour is detailed in the closing submissions made on his behalf. He says that he was entitled to invoice UWA and receive the payments. The context is that his prime consulting engagement was with the Water Corporation. In 1999, Professor Dadour, with the full knowledge of then Dean, Professor Stewart was part of the team that was awarded a SPIRT Grant of $445,467.00. This commenced long term research with the Water Corporation into stable flies and human waste. The activities continued with regular additional consulting funding from the Water Corporation until 2011/2012. The total funding amounted to approximately $1,000,000.00. [378] Of these monies, there was approximately $74,500.00 identified in the various quotations sent to the Water Corporation for an “ Entomologist ”. [379] These quotations, prepared by Professor Dadour, were on UWA letterhead and included all services to be provided to the Water Corporation. [380] He says this Entomology consultancy work was required to enable the wider Water Corporation research work to proceed. Professor Dadour is the only Entomologist in Australia who is competent to do this work. [381] He says the Entomology work was outside his role as the Director of the Centre for Forensic Science. He was not engaged to do Entomology consultancy on UWA’s behalf. [382] Professor Dadour concedes he did not have a separate contractual arrangement with the Water Corporation, but the person with whom he dealt at Water Cooperation, Ms Penney, knew that he was the Entomologist providing his consultancy services and verbally agreed to this arrangement. There was nothing unusual or remarkable in having one quotation which included the fee for his Entomological consultancy services. And dealing with it in that way meant that UWA got a benefit – its 15% mark up. [383] When advised to do so, in 1999, he met Deputy Vice Chancellor Professor Robson, declared his interest in Insect-Tec, and was given approval to hold an interest in Insect-Tec to undertake private consultancy work. [384] He says the assertion that he removed his signature from the invoices in order to conceal his interest and achieve a dishonest purpose is not correct. His signature was not required as the invoice was attached to a UWA Intent to Purchase Form, and in any event his involvement with Insect-Tec was known to the University, and obvious. [385] He was not aware of any requirement to seek permission to consult, on an annual basis. Furthermore, his consulting for the Water Corporation and other businesses was known and sanctioned by Professor Stewart. [386] It is submitted for Professor Dadour that all of this shows there was a legitimate basis for the four invoices and Professor Dadour was entitled to invoice UWA as he did and receive the monies. [387] Considering this detailed explanation some of what he has explained is acknowledged by UWA and is not disputed however some critical elements of his explanation are rejected by UWA. [388] Having had the opportunity to consider the evidence and submissions of both sides my conclusions on this matter are as follows. [389] Professor Dadour had a long-standing relationship with the Water Corporation. A large amount of work was done for the Water Corporation. A significant amount of money was paid by the Water Corporation to UWA from 1999 onwards. This arrangement was without doubt a University consultancy. [390] The nine relevant quotations prepared by Professor Dadour and sent to the Water Corporation each included a cost line item such as “ Entomologist (4 days @ $650/day) ” with some variation as to the number of days and daily rate. Professor Dadour prepared these quotations in his capacity as an employee of UWA and as the Director of the Centre for Forensic Science. [391] At no time had UWA agreed, as would be required by the PCW Policy, that as part of this University consultancy Professor Dadour was entitled to personally be paid any amounts from the consulting monies UWA would receive from the Water Corporation. This was a fundamental aspect of the PCW Policy as explained by Mr Logan and Dr Tay. [392] Clause 8 Principle 4: Legal and Financial Arrangements of the PCW Policy which Professor Dadour relied upon in his own evidence and was familiar with 51 provides at 8.3 that: “ When work has been done as a University Consultancy the Head of School may agree to payment of a portion of the funds to a staff member. In this case the funds must be paid to the employee in their capacity as a university employee and payment must be made through the human resources payroll system. Any such arrangement must be made prior to or at the time of approval of the consultancy work and fully documented .” [393] There is no documentation of any description that identifies that this Entomologist work was not part of the University consultancy but instead was to be undertaken by Professor Dadour as a private consultancy between Insect-Tec and the Water Corporation. [394] Whilst Professor Dadour was not employed by UWA as an Entomologist there was nothing in his employment arrangements, as the Director of the Centre for Forensic Science, which prevented him from doing some Entomology work. As he explained in his evidence he did not have a position description and UWA had not specified the scope of his duties or imposed limitations on his duties. 52 Consistent with this the Agreement which applied to Professor Dadour’s employment expressly states that an employee may be directed to carry out such duties as are reasonable and within the limits of the employee’s skill, competence and training. Professor Dadour also conceded he had on occasions done Entomology work whilst he was the Director of the Centre for Forensic Science. [395] Consequently there was no reason on the face of the University consultancy between UWA and the Water Corporation why Professor Dadour should not have undertaken the Entomology work mentioned in the quotations as part of his employment with UWA. In fact consistent with this the line item for “ Entomologist ”, along with all other line items on the quotes, was subject to the UWA loading for overheads indicating this Entomology work would be done using UWA resources. There is nothing that supports the assertion that it was obvious this work would be done by him in a private capacity and that the line item for “ Entomologist ” self-evidently referred to a private consultancy between the Water Corporation and himself as Insect-Tec. [396] Professor Dadour’s representatives submit that where, as is the case here, what is involved are allegations of serious misconduct the principle established in Briginshaw v Briginshaw 53 is relevant. [397] I accept that the Briginshaw principle is applicable in this matter. That principle does not raise the standard of proof beyond the balance of probabilities. I accept however that the strength of the evidence needed to establish a fact on the balance of probabilities may vary according to the nature of what it is sought to prove. More serious allegations may require stronger evidence. I have borne this in mind as I have made findings based on the evidence. [398] Contrary to Professor Dadour’s evidence I have found as explained earlier in this decision that there was no agreement or arrangement between Ms Penney on behalf of the Water Corporation and Insect-Tec or Professor Dadour for the Entomologist work mentioned in the quotations to be undertaken by him as a private consultancy. [399] It is accepted that Professor Dadour did declare his interest in Insect-Tec to Professor Robson in 1999 and was then given approval to undertake private consultancy work under this business. This was merely one, and effectively only the first, of a number of requirements provided for in UWA’s policies which Professor Dadour was obliged to comply with if he was to undertake private consultancy work. [400] As I have found above Professor Dadour’s removal of his sign off from each of the four invoices was deliberate. This obscured the fact the invoices were sent by him and he would receive the monies paid by UWA. Professor Dadour’s evidence explaining these actions was not credible. [401] Professor Dadour held a very senior and responsible position in the University. He had been employed at UWA for many years. He was responsible for other staff as the Director of the Centre. Over those years UWA had regularly sent to him copies of the relevant Codes and policies which detailed his obligations accompanied by letters reminding him of their importance and advising him where he could direct any queries he had. Given this context Professor Dadour’s explanation that he was simply unaware of his obligations to seek prior permission on each occasion he wished to enter into a private consultancy and was unaware he was required to annually declare conflicts of interest and had mistakenly over the course of five years failed to declare each of the Insect-Tec invoices as a related party transaction is not an explanation that exonerates him for his repeated non-compliance with UWA’s policies. [402] I do not accept the proposition that Professor Dadour should be excused his multiple failures to comply with UWA’s policies because he relied on advice from administrative staff. Professor Dadour had the opportunity to call such staff as witnesses to support this explanation but did not do so. He had no right in any case to delegate his personal responsibilities as an employee of UWA to the University’s administrative staff. His response to questions about these matters left the impression he had over the years paid little attention to the policies. However at other times he relied on the same policies but only to the extent they lent support to his actions. 54 [403] There is no doubt he had on a number of occasions received correspondence including from the Vice Chancellor stressing the importance of the Codes and policies These various emails and letters expressly said that staff should familiarise themselves with the Codes and policies and understand their responsibilities and ensure their staff comply with the rules and processes therein. 55 Being a Winthrop Professor and the Director of the Centre for Forensic Science did not provide him with some immunity from his obligations to comply with University policies. Had he fully complied with UWA’s policies the Insect-Tec invoicing would in all likelihood have been subject to scrutiny from the outset. [404] Under Schedule D−Misconduct of the Agreement “misconduct” is defined as wilful conduct that is unsatisfactory. Professor Dadour’s repeated failure to comply with UWA policies was misconduct. [405] I accept Professor Stewart told Professor Dadour that he could provide consultancy services through Insect-Tec. Professor Stewart was bound as was Professor Dadour to comply with UWA’s policies on consulting work. Professor Stewart had no authority to suggest Professor Dadour could act contrary to these policies and there is no evidence that this was his intention. What Professor Stewart said in 2003 was little more than generally alerting Professor Dadour to the fact that he was entitled to do private consultancy work and be paid for that in response to Professor Dadour complaining he was doing a lot of pro bono work for the WA police who were not willing to pay him. This conversation was six years before the first Insect-Tec invoice was issued to UWA. Professor Stewart had only a general understanding of the Water Corporation consultancy. He had no direct knowledge of any private consultancy arrangement Professor Dadour now says existed. There is no evidence Professor Stewart was aware of and sanctioned the issuing of the four Insect-Tec invoices by Professor Dadour to UWA in the particular manner and circumstances Professor Dadour did. [406] For Professor Dadour it was argued that it was inherently improbable that he would claim monies unless he believed he was entitled to them. It was submitted he would hardly risk ruining his reputation and career for a comparatively small sum. It was submitted that he had no motive to misappropriate any money. His financial circumstances did not necessitate this. In any event he did not use the monies for his personal benefit but rather used it to pay Dr Magni to assist her in her research. Given this it is submitted the allegations put against Professor Dadour are not credible. [407] Firstly in response to these submissions, in my view, few people would characterise $38,500 as a small amount of money. Secondly history is littered with cases of individuals who chose to act improperly risking much for relatively little gain. As to what Professor Dadour did with the money his evidence and Dr Magni’s evidence demonstrated that whilst Professor Dadour was supervising her as a PhD student their relationship was not exclusively professional. They had a close personal relationship. This extended to them having financial interests held in common. Given this context Professor Dadour giving monies to Dr Magni is not properly characterised as philanthropy or altruism. Finally Professor Dadour’s otherwise good character is of little relevance in determining this matter. We are all of good character up until our first misdeed. [408] Over the now lengthy period since UWA first raised the allegations Professor Dadour has had the opportunity to explain the basis for the four Insect-Tec invoices being sent to UWA. I agree with the submissions of the respondent that the explanations Professor Dadour has given at various points throughout this process including under cross-examination at the hearing have been inconsistent. [409] Professor Dadour has not provided a credible explanation for any of the four invoices he sent to UWA from his business Insect-Tec. He has not provided a credible explanation as to why he was entitled to receive any of the monies paid to Insect-Tec by UWA. Insect-Tec did not have a contract with UWA to provide Entomological services. Insect-Tec did not provided the services detailed on any of the four invoices sent to UWA. Professor Dadour did not have an arrangement with the Water Corporation to undertake the ‘Entomologist’ work as a private consultancy. [410] All the evidence brings me to conclude that there was no legitimate basis on which Professor Dadour was entitled to seek payment of the amounts specified in the Insect-Tec invoices he prepared and sent to UWA. Professor Dadour’s actions amounted to a misappropriation from UWA of a total of $38,500. Serious Misconduct [411] As mentioned previously Schedule D−Misconduct of the Agreement sets out a detailed scheme for UWA to deal with disciplining employees for misconduct or serious misconduct. [412] Serious misconduct and misconduct are defined within Schedule D as follows: “ 1.2 “Misconduct” shall mean: 1.2.1 Wilful conduct by an employee which is unsatisfactory; 1.3 “Serious misconduct” shall mean: 1.3.1 Serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an employee’s duties or to an academic's colleagues carrying out their duties; 1.3.2 Serious dereliction of the duties required of the academic office; 1.3.3 Conviction by a court for an offence which constitutes an impediment to the carrying out of an employee’s duties; 1.3 .4 Serious misbehaviour or dereliction of duty in the performance of a role within an institution which has recognised formal links to UWA where such a role is undertaken as a result of the employee's appointment to the staff of UWA. 1.4 Examples of “serious misconduct ” include theft, fraud, misappropriation of funds , assault, serious bullying or harassment (including sexual harassment); wilfully disobeying a regulation, order, or lawful instruction made or given, or repeated actions of misconduct .” (Underlining added) [413] Certainly what occurred here, misappropriation of funds, falls within the definition of serious misconduct and is expressly cited as one example of serious misconduct. Section 387 [414] Section 387 of the Act sets out matters the Commission must take into account when considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable. Valid reason [415] There was no legitimate basis for Professor Dadour to seek payment of the amounts specified in the Insect-Tec invoices he prepared and sent to UWA. [416] Professor Dadour sent four invoices from his business Insect-Tec to UWA claiming monies to which he was not entitled. [417] UWA paid each of the Insect-Tec invoices and Professor Dadour received this money when he was not entitled to it. [418] Professor Dadour’s actions amounted to a misappropriation of $38,500 from UWA. [419] These actions were a valid reason for the dismissal of Professor Dadour. [420] Separately Professor Dadour’s multiple failures to comply with UWA’s various policies also amounts to misconduct which is a valid reason for dismissal. I note UWA have not relied on this as a ground for his dismissal. Notification of the reason [421] Professor Dadour was notified of the reason UWA was considering dismissing him prior to the UWA making a final decision to do so. Reasons for his possible dismissal were initially contained in the advice of the allegations against him that were the subject of the Deloitte investigation. The report following the investigation was provided to Professor Dadour as was the explanation for the recommendation of the SMR that he be dismissed. Opportunity to respond [422] Professor Dadour has been given multiple opportunities to respond to the reasons for which he was ultimately dismissed. He was given an opportunity to provide his explanation to the Deloitte investigators. His lawyers on his behalf provided a response to the Deloitte report and then to the recommendations of the SMR. Professor Dadour initiated a review of the recommendations and provided submissions to a subsequent hearing conducted by the Review Committee. Refusal to allow a support person [423] There was no refusal to allow Professor Dadour to have a support person at any point. Indeed Professor Dadour has been professionally represented by legal advisers from the outset. Warnings [424] The dismissal did not relate to unsatisfactory performance so warnings were not relevant . Size of the employer’s enterprise and HR expertise [425] The employer is a large enterprise with in-house HR expertise and the procedures followed were appropriate. Other matters [426] The Agreement which applies to the employment of Professor Dadour sets out a comprehensive scheme for investigating allegations of misconduct or serious misconduct. This prescribes in detail how resultant reports and recommendations shall be handled and how these may be reviewed. Professor Dadour, as he was entitled to, has exercised his right to seek a review through that process prior to UWA making the final decision to dismiss him. Whilst Professor Dadour’s representatives have raised a number of complaints about the procedure adopted I am satisfied that UWA has substantially followed the provisions of the Agreement as they were required to. I am satisfied that Professor Dadour has received a “ ... fair go all around... ” Any argument the Agreement was not scrupulously followed, even if correct, has not in any way denied Professor Dadour the opportunity to be heard and his view properly considered before the decision to dismiss was made. [427] Professor Dadour was an employee of many years service who prior to his dismissal was the Director of the Centre for Forensic Science and whom had been made a Winthrop Professor. Whilst Professor Dadour points to these matters as ones that should be taken into account in his favour they do not assist him in the circumstances of this case. It would be difficult to imagine in what circumstances the seniority or length of service of an employee would excuse the misappropriation of $38,500. [428] In this case the dismissal of Professor Dadour was not disproportionate to the gravity of his misconduct. [429] The dismissal of Professor Dadour was neither harsh, unjust or unreasonable. The dismissal of Professor Dadour was not unfair. [430] This application will be dismissed and an order will be issued to that effect. COMMISSIONER Appearances : M. McCusker of Counsel for the applicant. Y. Shariff of Counsel for the respondent. Hearing details: 2015. Perth: November 9 and 10. Final written submissions: Applicant, 5 February 2016. Respondent, 16 December 2015 and 22 February 2016. 1 Exhibit A2 at paragraph 25 and applicant’s document HB–49. 2 Transcript at PN1023 to PN1037. 3 Ibid., at PN153 to PN174. 4 Ibid., at PN213 and PN214. 5 Ibid., at PN262, PN263 and PN269. 6 Ibid., at PN833. 7 Exhibit A2 at paragraph 69 and applicant’s document HB-50. 8 Exhibit A2 at paragraphs 73 to 76. 9 Ibid., at paragraphs 83 to 85. 10 Applicant’s document HB-52. 11 Ibid., document HB-51. 12 Exhibit R13 at paragraph 17. 13 See Schedule D–Misconduct at sub-clause 3.2. 14 Applicant’s document HB-27. 15 Exhibit 43A (A1). 16 Exhibit R4. 17 Exhibit R2, document 34. 18 Transcript at PN436 and PN443. 19 Ibid., at PN462 (sic). 20 Exhibit R2, document 26. 21 Ibid., document 22. 22 Transcript at PN504 to PN542. 23 Ibid., at PN201 to PN214. 24 Exhibit A2 at paragraph 27. 25 Transcript at PN201 to PN214. 26 Ibid., at PN641, PN642 and PN655. 27 Applicant’s document HB-1. 28 Transcript at PN1713 to PN1714. 29 Ibid., at PN1717 to PN1718. 30 Ibid., at PN1947 to PN1955. 31 Ibid., at PN1721 to 1726. 32 Ibid., at PN1755 to PN1757 and PN1760. 33 Ibid., at PN1785 to PN1813. 34 Ibid., at PN1810. 35 Ibid., at PN1820 to 1821. 36 Ibid., at PN1874 to PN1891. 37 Ibid., at PN1909 to 1944, PN1913, PN1918, PN1930, PN1933 to 1934 and PN1942. 38 Exhibit R14 at paragraph 44. 39 Transcript at PN1820. 40 Ibid., at PN1709 to PN1718 and PN1947 to PN1955. 41 Exhibit R14 at paragraphs 42 to 53. 42 Ibid., at paragraph 40. 43 Transcript at PN1721 to PN1726. 44 Exhibit 43A (A1). 45 Exhibit A2 at paragraph 72. 46 Transcript at PN812 to PN813. 47 Ibid., at PN1834, PN1838, PN1840, PN1857 to PN1859. 48 Ibid., at PN678 to PN686. 49 (1893) 6 R 67. 50 Exhibit R17 at paragraph 33. 51 Transcript at PN1023 to PN1042. 52 Exhibit A2 at paragraph 28. 53 [1938] HCA 34 ; (1938) 60 CLR 336 at [362] - [363] . 54 Exhibit A2 at paragraphs 25 to 26. 55 Exhibit R13 at paragraphs 14 to 19. 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