FEDERAL COURT OF AUSTRALIA

Atkins v North Australian Aboriginal Justice Agency Ltd [2024] FCA 686

ORDERS

THE COURT ORDERS THAT:

1.    There be a further case management hearing at 10.00am on 4 July 2024.

2.    At or before 3.00pm on 3 July 2024, the applicant is to provide to the respondent and to the Court proposed minutes of order for the preparation of the trial on the issue of remedies, such minutes to propose dates for:

(a)    the exchange of proposed declarations of contravention giving effect to the reasons published today;

(b)    the filing of affidavits; and

(c)    the exchange of written submissions.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

PART 1:  INTRODUCTION

1    The respondent, North Australian Aboriginal Justice Agency Ltd (ACN 118 017 842) (NAAJA) is a registered charity responsible for providing legal services to Aboriginal people in the Northern Territory. It is governed by a Constitution. Among other things, the Constitution makes provision for the election of directors of a Board, and for the Board to appoint a Chief Executive Officer (CEO). A CEO may only be terminated by a valid resolution of the Board.

2    The applicant, Ms Priscilla Atkins was appointed as the CEO of NAAJA in 2007 for a term of five years. That initial term of employment was extended from time to time.

3    On 20 February 2023 Ms Atkins received a letter giving (or purporting to give) notice that she was dismissed from her employment with NAAJA.

4    Ms Atkins disputes that her appointment was terminated in accordance with the Constitution. She alleges that the purported or actual termination of her employment is one of five “adverse actions” as defined in the Fair Work Act 2009 (Cth) (FW Act) taken against her by NAAJA. She alleges that NAAJA contravened s 340 of the FW Act by taking the adverse actions because she had, or had exercised, workplace rights. Those rights included her right to commence this proceeding by lodging an originating application on 20 February 2023 seeking an urgent injunction to restrain NAAJA from dismissing her, and her right to make a complaint or enquiry in relation to her employment. Among other things, she seeks injunctions restraining NAAJA from terminating her employment or preventing her from performing her duties as CEO (or alternatively an order for reinstatement), damages and the imposition of civil penalties.

5    By an order made on 26 April 2023 the question of liability was tried separately from questions of remedy, penalties and costs. These reasons are limited to questions of liability.

6    For the reasons that follow, I have concluded that the purported termination of Ms Atkins’ appointment as CEO and the purported dismissal were legally ineffective. I have also concluded that NAAJA contravened the FW Act in each of the respects alleged by Ms Atkins.

7    The appropriate order is that the matter now be set down for a further case management hearing to progress the trial of the remaining issues.

8    These reasons are structured in twelve parts:

    Part 1 ([1] – [9]) is this introduction;

    Part 2 ([10] – [18]) broadly outlines the relevant provisions of the FW Act;

    Part 3 ([19] – [152]) outlines the critical events based on agreed or admitted facts and findings drawn from uncontroversial documents or testimony;

    Part 4 ([153] – [173]) summarises the disputes on the pleadings;

    Part 5 ([174] – [179]) describes the conduct of the trial and identifies the witnesses who were called;

    Part 6 ([180] – [227]) discusses evidence relevant to the misconduct alleged against Ms Atkins;

    Part 7 ([228] – [503]) contains an outline of the witness testimony;

    Part 8 ([504] – [525]) contains findings about the workplace rights exercised or proposed to be exercised and the adverse actions taken or threatened by NAAJA;

    Part 9 ([526] – [597]) contains conclusions about whether Ms Atkins’ dismissal was legally effective;

    Part 10 ([598] – [626]) contains principles relevant to the operation of s 361 of the FW Act;

    Part 11 ([627] – [787]) contains an assessment of NAAJA’s case on those matters in respect of which it bore the onus of proof; and

    Part 12 ([788] – [789]) identifies the next steps to progress the matter to a final hearing.

Definitions

9    Given the intricate factual background it has been convenient to give many events and documents abbreviated names. I set out here the paragraph numbers where those events and documents are first described.

PART 2:  THE FAIR WORK ACT

10    Section 340(1) of the FW Act provides:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

11    Under s 341(1) of the FW Act a person has a workplace right if the person (relevantly):

…

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

12    This proceeding is a process or proceeding under a workplace law within the meaning of para (b):  FW Act, s 341(2)(b).

13    The circumstances in which a person takes “adverse action against another person” are specified in a table contained in s 342(1) of the FW Act. Item 1 of the table includes action taken by an employee, including the employer dismissing the employee, injuring the employee in his or her employment, alternating the position of the employee to the employee’s prejudice or discriminating against the employee and other employees of the employer. A threat to do any one of those things will also be “adverse action”:  FW Act, s 342(2)(a).

14    Section 360 of the FW Act provides:

360    Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

15    For contravention to be established, it is sufficient that the prohibited reason be a substantive and operative reason:  Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, Gummow and Hayne JJ (at [104]).

16    Section 361 of the FW Act provides:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

17    The employer’s onus under s 361 is to be discharged on the balance of probabilities:  Barclay (at [63]). If the onus is not discharged, and provided that the conditions for s 361 to apply are established, then it must be presumed that the employer took the adverse action for a prohibited reason. That has some significance in the present case, as discussed elsewhere in these reasons.

18    Section 793 of the FW Act attributes certain conduct and states of mind to a body corporate. It too will be discussed elsewhere in these reasons.

PART 3: KEY EVENTS AND FACTS

19    Before turning to the pleadings it is convenient to set out some facts as agreed in a Statement of Agreed Facts dated 14 July 2023 as amended on 30 October 2023 (SOAF), and facts admitted on the pleadings. In this part of my reasons, I will also record some preliminary findings based on evidence that was not seriously contested.

NAAJA, the Constitution and the Board

20    NAAJA is a charity registered with the Australian Charities and Not for Profit Commission (ACNC) under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). Its Constitution is dated 7 May 2018 and is lodged with the ACNC. It has more than 160 employees and has offices in Darwin, Palmerston, Katherine, Alice Springs and Tennant Creek.

21    NAAJA receives its funding through the Commonwealth Attorney-General’s Department, the Department of Prime Minister and Cabinet and the Northern Territory Government. The funding typically occurs in accordance with funding agreements renewed in five yearly cycles.

22    The object of NAAJA is set out in clause 1.2 of its Constitution. It is to provide high quality and culturally appropriate legal aid and related services for Aboriginal people in need of benevolent relief within the Northern Territory, including by providing representatives to act as support officers for Aboriginal people in custody, to assist with their rehabilitation and reform, by providing legal education to communities and by engaging in law reform relevant to those objectives. Clause 1.3 requires that NAAJA apply its funding and income solely toward promoting its objects.

23    In due course it will be necessary to extract and construe some critical parts of the Constitution. For now, it is sufficient to record only some of its features.

24    The Board is constituted in a way that ensures representation of Aboriginal people from across four defined Regions of the Northern Territory, referred to as Katherine Region, Darwin Region, Miwatj Region and Southern Region. Clause 3.3 requires that NAAJA have at least eight directors, consisting of at least two from each Region. There are to be no more than 16 directors in total, with no more than four from each Region.

25    Membership of NAAJA is divided into four classes, comprising Aboriginal persons who have lived in a Region for at least one year prior to the date of their nomination for membership and who continue to have their usual place of residence in that Region:  Constitution, clause 2.2. Under clause 3.2, directors from each Region are appointed by members of that Region’s class.

26    Subject to some exceptions that are not presently relevant, the powers of the Board can only be exercised by resolutions passed at a meeting of the Board or in accordance with certain delegations of power:  Constitution, clause 7.2. Provisions relating to the quorum for meetings are discussed in Part 9 of these reasons.

27    Clause 9.1 provides that the Board may by special resolution appoint a person to be the CEO for a specified term. The CEO is entitled to attend all Board meetings, but not to vote at them. The CEO’s remuneration is to be determined by the Board by ordinary resolution.

28    The role of the CEO includes (by clause 9.4(c)) the management of NAAJA on a day to day basis in accordance with delegated powers, implementation of an operation plan, and “reporting to the Board on [NAAJA’s] activities and operations”.

29    Clause 1.6 of the Constitution defines “special resolution” to mean:

‘special resolution’ means a resolution of the Board or members passed or required to be passed by Directors or members (whichever is applicable) that together hold not less than 75% or the total voting rights of all Directors or members (whichever is applicable) entitled to vote on the resolution who are present at the meeting.

30    Termination of the appointment of the CEO is provided for by clause 9.3. It provides that the appointment of a CEO terminates if the CEO resigns, or:

…

(b)    the Board, by 75% majority of all Directors, removes the Chief Executive Officer from the office of chief executive officer (which, without affecting the rights of the Chief Executive Officer under any contract between the Company and the Chief Executive Officer, the Board has power to do)

31    Clause 17.4 has the heading “Removal of Chief Executive Officer”. It provides that the appointment of the CEO “may only be terminated if at least 75% of all Directors vote in favour of the resolution” to terminate the appointment.

32    The Board’s role and responsibilities are set out in a policy titled “North Australian Aboriginal Justice Agency Board Framework”, which remained current throughout 2022. It states that in accepting their positions, directors of the Board undertake to provide sound governance and effective leadership to NAAJA by ensuring that it has:

•    Clear strategic directions and achievable plans in line with its purpose and values

•    Adequate resources to carry out its work

•    Competent personnel

•    An effective policy framework to guide its work, implement its plans and meet its obligations

•    Adequate internal controls to ensure sound financial management, risk management and legal compliance

•    Adequate internal accountability mechanisms to ensure compliance with policies and procedures and to monitor organizational performance.

33    The policy goes on to state that the Board will provide direction through policy and oversight for the senior staff who will implement the decisions of the Board, and that the Board will take responsibility for, among other things:

(1)    ensuring that NAAJA complies with its objects, purposes and values and with its Constitution;

(2)    recruiting, supervising and evaluating the performance of the CEO;

(3)    identifying and managing conflicts that may arise within NAAJA;

(4)    managing risk “by assessing risks and over sighting a risk management plan or strategy”; and

(5)    approving, monitoring and reviewing policies and procedures including for compliance and incident reporting.

34    Throughout the period relevant to this proceeding there was a Finance, Audit and Risk Committee (FAR Committee), membership of which included at least one director and the Chief Financial Officer (CFO). The FAR Committee made recommendations to the Board with respect to matters affecting NAAJA’s financial affairs and governance, including recommendations for the Board to approve financial reports.

Board Members and key personnel

35    Ms Colleen Rosas was first appointed a director of NAAJA in 2006 for the Darwin Region. From February 2020 she was Chairperson of the Board. Within these reasons I will refer to Ms Colleen Rosas as Ms Rosas, and Ms May Rosas as May Rosas. It is agreed that Ms Rosas was “an officer or agent of NAAJA who in relation to the matters relevant to this proceeding acted within the scope of her actual or apparent authority for and on behalf of NAAJA”.

36    Other current or former Board members featuring in the evidence include Ms Natalie Ellis, Ms Rebecca Moore, Ms Shirley Garlett, Ms Carol Smith, Ms Marilyn Smith, Mr Joel McLennan, Ms Araluen Maymuru, Ms Joyce Taylor, Ms Johanna Assan, May Rosas, Mr Hugh Woodbury, Ms Valda Shannon and Mr Vernon Hill. Ms Shannon is described in some materials as a director but by the conclusion of the trial NAAJA acknowledged that she did not have that status in relation to any disputed issue.

37    Carol Smith and Marilyn Smith resigned from the Board on 25 January 2023. Mr McLennan resigned on 7 February 2023. Ms Maymuru resigned on 15 August 2023.

38    From 2016, NAAJA employed Ms Madhur Evans in the position of CFO. Ms Evans was answerable to Ms Atkins in the performance of her duties.

39    Ms Kerry Keightley was employed by NAAJA as its Executive Services Coordinator which incorporated human resources management. Her employment was suspended in circumstances described later in these reasons.

40    From 30 January 2023 Mr Nicholas Espie was employed as NAAJA’s Principle Legal Officer. Mr Espie previously served as a director of NAAJA on two separate occasions:  first from 29 January 2019 to 1 November 2019 and secondly from 1 October 2021 to 23 November 2022 before resigning to commence his executive role.

41    Mr Alistair Noel Morris and Mr Stephen Rossingh were each previously employed in the position of CFO.

42    Mr Philip Brown was appointed as Acting CEO and occupied the position between 5 December 2022 and 5 March 2023.

Ms Atkins’ employment

43    Minutes of a Board meeting held on 14 May 2015 record the Board resolving to approve a five year contract with Ms Atkins from 1 July 2015 to 30 June 2020. That resolution was seconded by Ms Rosas.

44    From at least May 2015, Ms Atkins was entitled to a vehicle allowance originally fixed at $11,656.00 per annum, to be indexed annually. The amount was provisionally determined and was subject to the CFO benchmarking the amount against that paid by similar organisations. The resolution for the payment of a vehicle allowance was seconded by Ms Ellis. A document recording the standard terms and conditions of Ms Atkins’ employment confirm that from at least 2015 she was entitled to receive a vehicle allowance of $20,000.00 per annum, indexed annually.

Salary increases

45    Minutes of a Board meeting held on 14 and 15 December 2017 (December 2017 Minutes) record a resolution by which the Board approved increases in the salaries of eight management personnel including Ms Atkins. The Minutes record that the Board had received a remuneration review report from a consultant who had reviewed salaries “in light of NAAJA delivering legal services in the Southern region commencing 1 January 2018”. The Minutes record that Ms Rosas and Ms Ellis were in attendance at that meeting and that Ms Ellis opposed the resolution. In cross-examination, Ms Rosas questioned the authenticity of those Minutes, suggesting they had been tampered with. I will return to that issue later in these reasons.

46    Ms Atkins’ 2017 salary increase was communicated to her by a letter sent by the then Chairperson of the NAAJA Board, Ms Ruby Stanley, dated 15 December 2017. The salary recorded in that letter is $346,830.00 per annum, being the same salary recorded in the Minutes as approved by the Board.

47    There were no salary increases in 2018 and 2019.

Contract Extension Letter

48    The most recent of Ms Atkins’ employment agreements is dated 29 June 2020, evidenced in part by a letter of that date. It will be referred to as the Contract Extension Letter.

49    The Contract Extension Letter is on NAAJA letterhead. It states that due to an extension in the funding of her position, Ms Atkins was offered an extension of the period of her contract to 30 June 2025. I infer that the reference in the letter to there being an extension in funding for the position coincides with the renewal of NAAJA’s funding in five yearly cycles mentioned earlier.

50    The extension was offered at a salary of $357,235.00 per annum. The letter stated that the North Australian Aboriginal Justice Agency Enterprise Agreement 2020 – 2024 (EA) would apply to her employment, and that in all other respects the conditions of employment would remain the same. It went on to state that if the offer was acceptable, Ms Atkins should sign the letter to signal her agreement and return it to the Executive Services Coordinator (then Ms Keightley) to enable the changes to be put into effect. The letter in evidence shows signatures above the names of Ms Rosas and Ms Atkins.

51    The salary specified in the Contract Extension Letter reflects the salary referred to in the December 2017 Minutes, with increases in accordance with the Consumer Price Index (CPI) as contemplated by the EA (which applied from 21 May 2020). The application of the EA (and hence the CPI increases for which it applies) is an agreed fact.

Further salary increases

52    There were 3% increases in Ms Atkins’ salary around June 2021 and June 2022. Those increases accord with the agreed application of the EA with respect to CPI increases.

53    On 30 June 2022, Ms Atkins sent an email to Ms Rosas (copied to Ms Evans) asking her to “follow up” with the approval of a recommendation that directors and management staff receive payments for additional duties associated with additional funding in the 2021/2022 financial year. The recommendation was based on an asserted “30% increase in workload and governance”.

54    In August 2022 the Board resolved to defer the question of those further increases pending the outcome of an organisational review discussed below. There is a dispute over whether a once-off payment to some staff was authorised but nothing significant turns on that.

Performance review

55    In the course of her employment, Ms Atkins participated in six-monthly performance reviews. Ms Atkins’ evidence is that she had never received a negative report about her performance in any of those reviews. That evidence was neither challenged nor contradicted and I accept it.

56    On 5 October 2022, Ms Atkins attended a meeting with Ms Rosas, Mr Brown and Carol Smith for the purpose of a performance review interview. In advance of the meeting, Ms Atkins prepared a document titled “Priscilla Atkins Performance Report 1 January 2022 to 30 June 2022” in which she self-assessed her performance against a number of indicators.

57    Ms Atkins asserted that no negative issues concerning her performance or competence were raised with her during that meeting. I accept that evidence. Ms Rosas acknowledged that at the performance review interview she had told Ms Atkins that she thought “her work had been really good”. I also accept evidence adduced by NAAJA that a forward looking aspect of the performance review was not completed at that time, specifically because the role of the CEO formed a part of the organisational review then underway.

KPMG Report

58    Between October and November 2022, a “Strategic and Governance Review” of NAAJA was carried out by consultancy firm KPMG in accordance with a resolution of the Board made in June of that year (KPMG Report). The “auspicing arrangements” involved NAAJA providing corporate support and guidance to Aboriginal organisations specifically with a view to improving their corporate affairs, financial reporting and governance. The tender for the service ultimately carried out by KPMG was confined to a review of NAAJA’s organisational structure, CEO and Board responsibilities, human resources structure and function, and strategic and operational plans.

59    The KPMG Report included consultation with directors who self-nominated to be interviewed. KMPG’s draft findings were presented to a Board meeting on 9 December 2022, and its final findings and recommendations were presented in January 2023. They included a finding that the operation of the Board had not evolved in response to growth in NAAJA’s size and complexity to provide sufficient oversight of the organisation. KPMG also found that the CEO and Board members did not have a good understanding of the Board’s role and responsibilities. KPMG recorded the view of “Board members” that they only received information about NAAJA through the CEO or occasionally from its CFO in relation to financial matters, and that they had made requests for more information that had been refused, including information relating to “matters such as staff remuneration, general human resources issues, detail about budgets and financial results, and allocation of surpluses”. KPMG reported that the CEO had assumed responsibility for the administrative operation of the Board (including scheduling, paper distribution and agenda setting), which had “resulted in significant friction and erosion of trust between the Board and the CEO, and the Board believing they do not have adequate oversight or control of the organisation or the CEO”. KPMG made a number of recommendations on that topic, including that the Board members receive training about their role, responsibilities and authority and other governance training, that the role of the Board be communicated to senior personnel, and that the Board receive additional specialist support from non-executive members in the areas of finance, human resources and legal practice.

Request for contracts and salaries

60    On 18 October 2022, Ms Rosas sent an email to Ms Keightley asking for copies of contracts for three staff, including Ms Atkins and Ms Evans. She emailed Ms Keightley again on 19 October 2022 asking when she would receive the documents “as I need to sight them before I meet with the consultants”.

61    Ms Keightley provided copies of the documents by way of attachments to an email on the morning of 19 October 2022, including a copy of the Contract Extension Letter. In the body of her email, Ms Keightley referred to that letter as “confirming contract extension to 30/06/2025” and also stated that the salaries of the various employees had been updated on 1 July 2022 in accordance with the CPI. Later, on 19 October 2022, Ms Rosas sent copies of the three contracts to directors, stating that she would be “more than happy to discuss these contracts at our board meeting in the in camera session”.

62    From at least early November 2022, the Board was considering the appointment of a new Principal Legal Officer (at times referred to as the PLO). On 3 November 2022, Ms Rosas sent an email to Ms Atkins in the following terms:

Hi [Ms Atkins],

Can you please send through staff contracts with salary levels for the following people; Yourself Madua [sic] Beth Clara Anna Cindy Mark.

The Board can have a look at this in determining the salary of the PLO.

63    Ms Atkins sent a response on the same day, attaching a copy of the Contract Extension Letter as well as the contracts for all but one of the named staff members.

64    By an email dated 7 November 2022 (at 4.34pm), Ms Rosas asked Ms Atkins to send her the salaries for nine employees (including Ms Atkins herself). In the email, Ms Rosas said if Ms Atkins did not have time, the salaries could be provided by Ms Evans “as she is here in Alice”.

65    Ms Atkins responded to that request by an email sent on 8 November 2022 at 10.15am.

The Complaint

66    On 7 November 2022, Ms Atkins sent an email to Ms Rosas, Carol Smith and Marilyn Smith raising issues about the conduct and performance of the CFO, Ms Evans. The effect of the complaints is summarised at [9] in Ms Atkins’ Second Amended Statement of Claim (2ASOC) filed 27 September 2023 as follows:

•    Ms Evans engaged in conduct amounting to bullying of other NAAJA employees;

•    Ms Evans refused to follow reasonable and lawful directions from Ms Atkins;

•    Ms Evans purported to enter into transactions, including significant transactions, on behalf of NAAJA without authority from either Ms Atkins or NAAJA’s Board;

•    Ms Evans disclosing [sic] NAAJA’s confidential information without authority from either Ms Atkins or the Board;

•    Ms Evans accessed Ms Atkins’ work computer after-hours, without Ms Atkins’ permission;

•    Ms Evans recorded interactions within the workplace, without the knowledge or consent of other parties to the interaction;

•    Ms Evans failed to use her NAAJA-issued credit card in accordance with the relevant NAAJA policy and

•    Ms Evans made payments to Ms Rosas without Ms Atkins’ knowledge or authority to which Ms Rosas was not otherwise entitled.

67    It is common ground that the matters raised in the email were complaints and inquiries that Ms Atkins was able to make in relation to her employment and that, by sending the email, Ms Atkins had exercised a workplace right within the meaning of s 341 of the FW Act. I am satisfied that is so in any event because Ms Atkins was responsible for managing the day to day operations of NAAJA, was responsible for reporting to the Board, and her position involved the supervision of senior staff including Ms Evans. I will refer to the email as the Complaint, and the right to make the Complaint as the Complaint Right.

10 and 11 November Board Meeting

68    There were two Board meetings in November 2022. The first was held on 10 and 11 November at Alice Springs (First November Meeting). It is sufficient at this juncture to briefly describe three events that occurred there.

69    First, Ms Rosas circulated a copy of the Complaint to directors. The Board agreed that Ms Evans should be given the opportunity to respond to the matters Ms Atkins had raised. The things said or thought by individual directors about the Complaint will be discussed elsewhere.

70    On 10 November 2022 at 11:37am, Ms Rosas sent an email to Ms Evans stating, without introduction or explanation:

Hi Madhur

Please see attached complaint for your response

Kind regards  …

71    Second, Ms Rosas raised an issue concerning the renewal of Ms Atkins’ contract. She told directors that she had not signed the Contract Extension Letter and asserted that her electronic signature must have been applied to it without her approval. The Board agreed that a director, Ms Garlett, should arrange for NAAJA’s IT personnel to investigate the document and the use of any electronic signature on it.

72    Third, Ms Atkins attended the Board meeting on the morning of 11 November. Ms Atkins told the Court (and I accept) that when she arrived, Ms Moore asked “[w]ho approves your salary?” to which Ms Atkins responded “[t]he Board does”. Ms Moore then asked “[i]sn’t it about time you had a performance review?”. Ms Atkins replied that she had just had a performance review in October. Ms Rosas said “I don’t recall that”. Mr Brown and Carol Smith said “[Ms Rosas], you were there for that performance review”.

Ms Evans sends an email to Ms Rosas

73    On the morning of 11 November 2022, Ms Evans sent an email to Ms Rosas attaching a copy of the Complaint. Her message was as follows:

Hi [Ms Rosas],

Thanks for sending me the complaint. I will be vigorously defending my case from calling on witnesses and providing evidence through source documents. 90% of her written complaint is to undermine, Harras and bully me. This whole thing is designed to push me out.

She did not follow the grievance policy. This is her first breach.

I want to know from the Board. What guarantee I have that she will not sack me?

Secondly, how will I be protected from such behaviuor [sic] whilst the review and recommendation are still in progress.

Thanks

Madhur

Requests for copies of Ms Atkins’ contract

74    On 14 and 15 November 2022, there were exchanges of emails between Ms Rosas and Ms Atkins. Ms Rosas told Ms Atkins that she was coming into the office on the Wednesday morning of that week and requested that Ms Atkins make available “the original of the letter of offer to you with my signature”. In her response, Ms Atkins attached a copy of the Contract Extension Letter and asked whether that was the document Ms Rosas was seeking. Ms Rosas responded “Yes, I will need to see the hard copy when I come in”.

Emails from Ms Ellis to directors

75    In an email sent from Ms Ellis to the other directors of NAAJA on 13 November 2022, Ms Ellis stated:

There are a few things that I feel need following up:

…

•    When can we expect an action item and timeframe for the CEO contract extension conflict?

•    When and how will the grievance submitted by CEO against CFO be addressed – reading through these complaints, much of this relates to the CEO not following our grievance process, how will this be addressed

…

•    Can the date for the meet for Review presentation be confirmed?

There are so many issues that need addressing and I get that we are waiting for the review to be completed and presented, but we can start looking at what significant changes need to be made moving forward.

Signature allegation

76    On 15 November 2022, there was at least one telephone conversation between Ms Rosas and Ms Atkins. There is a dispute about the number of calls. I find that the call or calls were initiated by Ms Atkins who had learned through others that an issue had arisen concerning her contract.

77    The content of the telephone conversation is disputed in part.

78    Ms Atkins said that Ms Rosas asserted that the Board had not approved her salary nor the extension of her contract, that she (Ms Rosas) had not signed the Contract Extension Letter, and that Ms Atkins had applied her (Ms Rosas’) electronic signature to the document without her consent.

79    I find that Ms Rosas’ allegations angered Ms Atkins, and that Ms Atkins in a heated exchange said (at least) that Ms Rosas had falsely accused her of criminal conduct. Ms Atkins also alleged that Ms Rosas had breached confidentiality by providing a copy of the Complaint to Ms Evans.

The Ward IT Report

80    Mr Greg Ward was an IT Systems Specialist employed by NAAJA. On 14 November 2022, Mr Ward sent an email to Ms Garlett attaching a report into the “origins” of the Contract Extension Letter (Ward IT Report).

81    Mr Ward reported that in NAJAA’s systems there were no earlier drafts of the Contract Extension Letter, no versions created in Word, and that there existed two copies of a PDF version, one stored in a folder titled “Corporate HR” and one stored in Ms Atkins’ home directory. The PDF version was a scan of a hard copy. He reported that the signatures appearing on the PDF version were combined in the single scanned graphic image. The document was different from what he termed “all staff” contract extension documents which did not require the signature of the Chairperson. He said that no unsigned copy of the Contract Extension Letter could be found on NAAJA’s systems. He reported that there was no evidence to suggest either that an electronic signature or a manual signature had been applied to the original, but did not state that he had undertaken any search for a hard copy original containing a manual signature. He reported that there were two emails in Ms Atkins’ inbox relating to the Contract Extension Letter, although neither of them had been sent around the time the document was signed or created. There were three emails relating to the Contract Extension Letter in Ms Keightley’s inbox. One of them evidenced Ms Keightley sending the signed document to Ms Atkins on 6 July 2020, copying another staff member, Ms Clare Parsons, in her message, stating “please find a copy of your letter attached”. Mr Ward reported that there were no emails between Ms Keightley and Ms Rosas concerning the document around that time and no evidence that Ms Rosas had been sent a copy of it. Mr Ward also reported that he had found two different copies of an electronic signature for Ms Rosas on NAAJA’s systems, but neither of them appeared to match the signature on the Contract Extension Letter.

82    A further observation may be made about documents attached to the Ward IT Report.

83    By email exchanges in late June, Ms Keightley told Ms Parsons that it had been confirmed that CPI increases applied to all staff members and that she would be using a master template document “for all letters”. Ms Keightley also emailed Ms Parsons to check a spreadsheet setting out rates of staff pay, including Ms Atkins’ salary. The salary recorded in the spreadsheet is the same as identified in the Contract Extension Letter.

Ms Atkins’ absence on sick leave

84    On the evening of 15 November 2022, Ms Atkins sent an email to directors advising that she was taking “unexpected leave” from 15 November 2022 until 13 December 2022. On the following day she obtained a worker’s compensation medical certificate covering that period. That Ms Atkins was too unwell to attend the workplace at the time of the email was not disputed by NAAJA and I proceed on that basis. At that time, Ms Atkins had a legal entitlement to return to the workplace in the event that she became well again to perform her duties.

85    From 5 December 2022, Mr Brown (Ms Rosas’ nephew) was appointed as NAAJA’s Acting CEO.

Ms Atkins obtains letters of support

86    On 19 November 2022, Ms Atkins sent or attempted to send an email to 30 recipients including NAAJA staff and stakeholders asking them to write “support letters” highlighting the work that she did for NAAJA. She did not disclose to the recipients the purpose of the letters nor the accusation that had been made against her.

23 November Board meeting

87    There was a further Board meeting on 23 November 2023 (Second November Meeting). At that meeting, directors considered the Ward IT Report. All but one of the directors who attended joined in a resolution that both Ms Atkins and Ms Keightley should be suspended whilst an investigation occurred into the issue concerning the use of Ms Rosas’ signature (Suspension Resolution). The reasons each director gave for agreeing to the suspension will be considered later in these reasons.

Suspension of employment

88    On 28 November 2022, Ms Rosas and Mr McLennan sent a letter to Ms Atkins directing her not to attend at the workplace or perform work. The letter was expressed as follows:

Dear [Ms Atkins]

Direction to not attend nor perform work (suspension from duties on pay)

NAAJA has recently become concerned about your contractual and salary arrangements and whether they were properly approved.

While we understand that you are currently unable to attend work due to an illness, so that we can properly assess and consider these concerns, the Board of NAAJA has resolved to direct you to not perform work, nor attend work. This decision was made by resolution of the Board on 23 November 2022. Your access to NAAJA’s IT systems is also suspended.

We are now investigating and assessing the issues of concern and we will be in touch with you as soon as possible regarding our more specific concerns so have the opportunity to respond. The Board has not made any determination yet about the concerns.

Please note that this investigation is strictly confidential and you are not to discuss it with anyone – although we recognise that the situation may create pressures and difficulties for you. We encourage you to seek medical or other health support, as you need.

You will continue to be paid while you remain suspended.

89    From that time, Ms Atkins was prohibited from returning to the workplace or performing her duties.

Ms Evans responds to the Complaint

90    By email dated 29 November 2023 Ms Evans responded to the allegations made about her in the Complaint. Her response was not provided to Ms Atkins for comment.

10 December Board Meeting

91    There was a further meeting of the Board on 10 December 2022 (December Meeting). The minutes show that Ms Evans was in attendance. They record that Ms Assan “raised the progress of the investigation for the Executive Services Coordinator and the CEO”, that Ms Ellis queried whether Ms Atkins’ laptop had been retrieved, and Ms Rosas raised an action item for that to be done and that Ms Ellis also queried “what exactly were the Board going to be investigating”.

A further message from Ms Ellis

92    Ms Ellis sent a further email to five directors of NAAJA on 14 December 2022 attaching a document with the heading “CONCERNS RE CEO AND OTHERS – NAAJA”. The first paragraph under the heading stated:

How is the grievance CEO submitted against CFO going to be addressed and resolved. There are clearly some red flags with some of the allegations, which I feel actually reflect on CEO performance and inability to address issues, for example staff grievances/complaints, implementation of policies. CEO has not provided evidence in any of her complaints.

93    The email also raised the topic of the “CEO salary”, under which there appeared dot points including the following:

•    The contract extension and Chairperson’s signature

•    Need access to the Renumeration [sic] Committee Minutes

94    The email went on to say that Ms Ellis agreed with some points that had been raised by Ms Moore and concluded:  “I do not think it is tenable that there can be a future working relationship with Board and CEO”.

NAAJA sends a process server

95    By letter dated 22 December 2022, NAAJA (through Mr Brown) demanded that Ms Atkins surrender NAAJA IT equipment in her possession to “Top End Bailiff and Collection Services”. A process server attended at Ms Atkins’ home with the letter on that day. That occurred in circumstances where Ms Atkins had, through her lawyer, previously offered to deliver up her laptop at a mutually convenient time and NAAJA had not responded. Ms Atkins delivered the laptop to NAAJA on the following day. Her access to NAAJA’s information systems had been suspended for some time before that, from at least the time of her suspension.

Engagement of BDO

96    BDO Australia Ltd was engaged to conduct a “special audit” of a wide range of matters relating to Ms Atkins. Precisely how and when that occurred is the subject of some consideration later in these reasons.

97    NAAJA’s records show that on 22 December 2022, Mr Brown sent an email to Mr Casmel Taziwa in which he said that he had been given Mr Taziwa’s number by Ms Evans. In a further email to Mr Taziwa sent on the same day, Mr Brown said again that Ms Evans had provided him with Mr Taziwa’s contact details and that “[Ms Evans] may have already given you a brief on what we require”. There is no evidence explaining how Ms Evans was put in a position to give Mr Taziwa a “brief” of what was required, nor as to who authorised her to converse with any person from BDO about any investigation into the conduct of Ms Atkins.

98    An appointment was made for the following day for what Mr Taziwa described as “the preliminary discussion”.

99    Mr Brown and Ms Rosas (at least) met with Mr Taziwa on 23 December 2022.

100    Ms Rosas told the Court that BDO had been recommended “to the Board” by Ms Evans (the person against whom Ms Atkins had made allegations in the Complaint). How, when and why that recommendation was made is not explained in NAAJA’s affidavits.

BDO Terms of Reference

101    A document titled “Terms of Reference” was signed by Ms Garlett, Ms Ellis and Ms Moore on 2 and 3 January 2023. I will refer to it as the Terms.

102    The Terms direct BDO to “review, analyse and report back to the NAJJA [sic] Board on any irregular or inappropriate actions within specified areas of the Chief Executive Officer role, responsibilities and accountabilities in Corporate Governance of the organisation.” BDO was required to include in its report advice as to whether Ms Atkins “has breached NAAJA Policy & Procedures, delegations and authorisations in which may disclose criminal activity and Police involvement [sic]”. The Terms go on to state:

These breaches must identify if they were intentionally or unintentionally and if any unethical practices that would bring NAAJA’s reputation as a legal justice agency into disrepute.

103    Under the heading “Scope of Works” there appear “Priority” questions and other questions under the heading “Medium”. BDO was directed to report on the “Priority” matters by close of business on 11 January 2023.

104    Emails in evidence show that on 10 January 2023 Ms Evans was having communications with personnel from BDO, referring to her by her initials and also by her first name, and that BDO were directing their enquiries for additional documents to her. A further email sent by BDO to Ms Evans on 30 January 2023 seeks assistance in collating documents “in respect of the request made by [Ms Atkins’] lawyers”. Ms Evans was also provided with the “updated report as discussed” by email sent by Mr Taziwa on the morning of 2 February 2023. The timing and content of the discussion referred to in that email is unknown.

105    NAAJA called neither Ms Evans nor Mr Taziwa to give evidence at the trial.

Ms Rosas convenes a meeting

106    On 4 January 2023 (two days after the Terms were signed) Ms Rosas sent a message to directors with the subject “Dates for Board Meeting 12/13 January 2023”. She sought clarification about who would be available for a meeting on those dates, and continued:

As the CEO’s lawyer has given the NAAJA Board until 16 January to respond to their request before legal action against NAAJA is taken, we will need to meet to discuss the following:

Draft investigation Report

NAAJA Structure

NAAJA Constitution

…

107    The email contains no reference to the engagement of BDO and no reference to any expected report concerning Ms Atkins, nor does it foreshadow any motion to terminate her employment. On its terms the email records an awareness that Ms Atkins had by that time threatened legal action in connection with the ongoing suspension of her employment and had fixed a deadline after which legal action would be taken.

Ms Atkins sends information and documents to BDO

108    Neither NAAJA nor Mr Taziwa had notified Ms Atkins of the engagement of BDO, nor did they provide her with an opportunity to provide evidence or make submissions about any of the subject matter referred to in the Terms. I find that Ms Atkins became aware of the engagement of BDO from others, that she had some limited knowledge about the subject matter of the investigation but was not aware at that time of the Terms.

109    On 9 January 2023 Ms Atkins sent an email to Mr Taziwa attaching a number of documents relevant to two matters she believed he was investigating.

110    Mr Taziwa did not contact Ms Atkins, nor (I find) did he read her correspondence. Other evidence discloses that Mr Taziwa was directed by NAAJA not to engage in any communications with her.

BDO returns Ms Atkins’ correspondence to Ms Rosas

111    By an email sent on 11 January 2023, Mr Taziwa forwarded to Ms Rosas the materials sent to him by Ms Atkins. His email stated:

Please find attached the emails which I received from [Ms Atkins] in the past two days as discussed in our meeting yesterday.

As indicated to you, I have not gone through the detail of the contents and attachments so as to avoid tainting the current work which we are currently undertaking for NAAJA.

112    Ms Rosas told the Court that she read Ms Atkins’ correspondence directed to BDO.

113    Ms Rosas also told the Court that she provided the correspondence with its attachments to the Board at a meeting held three days later. I have rejected that evidence for reasons that will be explained.

January Board meeting and BDO Report

114    There was a further meeting of directors on 12 and 13 January 2023 (January Meeting).

115    Handwritten minutes were taken of the January Meeting, and those minutes were later typed and signed by Ms Rosas on 1 March 2023. The following persons are identified in the minutes as directors in attendance, together with their location:

(1)    Ms Rosas, Darwin;

(2)    Ms Ellis, Katherine;

(3)    Ms Moore, Tennant Creek;

(4)    May Rosas, Katherine;

(5)    Mr McLennan, Darwin;

(6)    Mr Hill, Katherine;

(7)    Ms Assan, Miwatj;

(8)    Ms Maymuru, Miwatj (attending via Zoom);

(9)    Ms Taylor, proxy for Carol Smith, Southern;

(10)    Mr Woodbury, proxy for Marilyn Smith, Southern;

(11)    Ms Garlett, Katherine; and

(12)    Ms Shannon, Tennant Creek.

116    Mr Taziwa attended on the first day of the January Meeting. He made an oral presentation supported by a document titled “Audit Investigation Report” (BDO Report). Its contents are discussed in a different section of these reasons. To understand what happened next, it is necessary to briefly describe its contents.

117    The BDO Report refers to an “opening meeting with the management and key stakeholders”. Dot points refer to BDO developing “a high-level understanding of the process”, discussing key concerns in the existing process with “the entity’s key officers” and confirming client service expectations and project deadlines. When those meetings and discussions occurred and the identity of the officers or “stakeholders” who took part in them is not disclosed.

118    The BDO Report also refers to a meeting with the Acting CEO (Mr Brown), the CFO (Ms Evans) and the Senior Revenue Officer by which BDO “obtained an understanding of the existing process and the system functionalities”. No attendees at that meeting gave evidence. It is unclear when it occurred. The Report also refers to BDO obtaining “details and documents for the period agreed for testing (from January 2017 to current)”. The identity of the person who provided the “details and documents” is not disclosed in the BDO Report.

119    The BDO Report then reproduces the Terms, before setting out “factual findings”, including in relation to “observations” on topics referred to as “use of NAAJA funds for the private purchase of staff personal vehicles through salary sacrifice process” and “CEO’s credit card expenditure for the period 1 January 2019 to 30 November 2022”.

120    The Minutes of the January Meeting relevantly record the following resolutions:

Board discussion on Audit Investigation Report

RESOLUTION:

The NAAJA Board resolves that the information provided by the Auditors, BDO, be presented to lawyers for further advice.

MOVED:    Shirley Garlett

SECONDED:    Joel McLennan

UNANIMOUSLY AGREED

RESOLUTION:

The NAAJA Board resolves that the information provided by the BDO investigation outcome be reported to the police.

MOVED:    Natalie Ellis

SECONDED:    Valda Shannon

UNANIMOUSLY AGREED

RESOLUTION:

The NAAJA Board agreed that the information provided by BDO investigation outcome be reported to the police and CEO be terminated.

MOVED:    Joel McLennan

SECONDED:    Natalie Ellis

Resolution Carried

RESOLUTION:

The NAAJA Board resolves to notify the police and terminate the CEO immediately after the meeting with Northern Territory and Commonwealth Attorneys-General .

MOVED:    Natalie Ellis

SECONDED:    Valda Shannon

ABSTAIN:    Rebecca Moore

Resolution carried

121    The third and fourth of those resolutions will together be referred to as the Termination Resolution. Notably, the fourth resolution provided that the CEO be “terminated” immediately following a meeting with the Attorneys-General.

122    A meeting between Ms Rosas and the Attorneys-General took place four days later. However, Ms Atkins was not notified immediately after that meeting that her appointment was terminated as contemplated by the Termination Resolution, nor was the question of whether her appointment should be terminated considered again at any meeting of the Board.

Allegations Letter

123    On 19 January 2023, Ms Atkins received a letter signed by Ms Rosas, with the heading “Opportunity to respond and show cause” (Allegations Letter). It is an agreed fact that Ms Rosas sent that letter “for and on behalf of NAAJA”:  SOAF, [24].

124    In the letter, Ms Rosas referred to an “ongoing investigation” said to concern Ms Atkins’ conduct during her employment. She said that a number of allegations had been raised against Ms Atkins “as a consequence of” the investigation. An annexure to the letter briefly asserted eight allegations, none of which related to the use of Ms Rosas’ signature on the Contract Extension Letter.

125    Ms Rosas went on to say that it was “NAAJA’s preliminary view, based on the investigation process conducted to date, is that the Allegations are likely to be substantiated and, if so, would constitute a breach of NAAJA’s policies, your employment contract and applicable laws”. She said that NAAJA had “not yet formed a view as to your ongoing employment” and that, “having regard to the serious nature of the Allegations, an appropriate outcome may be the termination of your employment with NAAJA”.

126    Ms Rosas went on to state that the purpose of her letter was to provide Ms Atkins with an opportunity to respond and to raise any other matters that she wished NAAJA to take into account “when finalising its investigation into the Allegations and making a decision as to your ongoing employment”. She stated that:

NAAJA will consider any response you provide before it makes any decision in relation to your ongoing employment and/or any other appropriate outcome.

127    The allegations against Ms Atkins were revised in a further letter dated 3 February 2023 sent by NAAJA’s lawyers, Mr Murray Kellock of King & Wood Mallesons. The letter asserted that “time is of the essence” and required Ms Atkins’ response by 17 February 2023. The revised allegations contained in that letter are also summarised in Part 6 below.

Fair Work Commission

128    Around 22 January 2023 Ms Atkins made an application to the Fair Work Commission relating to her employment. The details of that application are not known to the Court.

The Complaint about Ms Evans goes no further

129    Mr Brown wrote to Ms Evans on behalf of the Board on 30 January 2023. After some introductory paragraphs, his letter stated:

The Board have taken into account your response and acknowledged that these allegations were operational matters that the Chief Executive Officer should have addressed with you at the appropriate times when they surfaced, not for the Board to address.

On behalf of the Board, I wish to advise that this matter is now closed, however the Board gives you the opportunity to meet with them to address any concerns in the allegations with them personally.

130    Notwithstanding the reference to “the Board” in that letter there is no evidence that Ms Evans’ response was the subject of discussion at (or resolution passed at) any Board meeting. Whether, when and how the Board collectively took the response into account or made the acknowledgments referred to in the letter remains unclear.

Mr Taziwa corresponds with Ms Evans

131    On 2 February 2023, Mr Taziwa sent an “updated” report to Mr Brown which he said included “a conclusion which seeks to capture the key issues of now [sic] compliance as we view them.” The message continued:

In going through this exercise, we have identified the matters which we have highlighted together with the letter from Murray forms a basis of the documents which you will need for your discussions with the Commissioner this afternoon.

132    Mr Taziwa forwarded that message with the attachment to Ms Evans on the same day, with a message saying “Please find attached the updated report as discussed”.

133    The meaning of the reference to “discussions with the Commissioner” in the email to Mr Brown is unexplained. The reference to a prior discussion between Mr Taziwa and Ms Evans is also unexplained.

Updated Allegations Letter

134    NAAJA’s lawyers sent a letter to Ms Atkins’ lawyer on 3 February 2023 revising the allegations that had previously been made. It will be referred to as the Updated Allegations Letter, and its contents will be discussed in a different section of these reasons.

These proceedings threatened

135    Ms Atkins’ lawyer later wrote to Mr Kellock on 14 February 2023 complaining about the manner in which the allegations had evolved and asking for a further week in which to respond. Ms Atkins also requested that NAAJA undertake not to terminate her employment and sought a response to that request by 16 February 2023. She said that in the event that no undertaking was agreed she reserved the right to commence proceedings, and to seek urgent relief, without further notice.

136    The extension request was refused, as was the request for the undertakings. In his response, Mr Kellock said that Ms Atkins “has been given ample procedural fairness; indeed more than could reasonably be expected in the circumstances”.

137    By a further letter sent on the following day, Ms Atkins’s lawyer repeated the request for undertakings, specifically in the following terms:

1.    NAAJA will not finalise its investigation into any of the allegations contained in the stand down allegations letter, the principal allegations letter (as amended by the amended allegations letter) until it has considered our client's response to those allegations and any other matter that she wishes to raise (see opportunity (ii) of the principal allegations letter).

2.    NAAJA will extend the time for that response until Friday 24 February 2023, or such later time as may be agreed between NAAJA and our client which agreement shall not unreasonably be withheld.

3.    NAAJA will not terminate our client’s employment (or take any other disciplinary step against our client) until it has afforded our client the opportunity to show cause (opportunity (iii) of the principal allegations letter) in response to, and on the basis of, those allegations it finds are substantiated once the investigation is finalised having completed steps 1 and 2 above.

4.    If following step 3 above, NAAJA decides to terminate our client’s employment (or take any other disciplinary step against our client) it will give our client 72 hours’ notice of its decision to do so.

138    That letter went on to state:

Please advise whether your client is prepared to provide an undertaking in the terms we have requested by no later than 12 pm on Thursday 16 February 2023. In the event your client does not agree, or we do not receive a response by this time, our client reserves the right to commence proceedings, and to seek urgent relief, without further notice and to rely upon this correspondence should it do so.

Our client otherwise reserves her rights.

(emphasis in original)

Ms Atkins responds to the allegations

139    Ms Atkins gave a partial response to the some of the allegations by letter from her lawyer to Mr Kellock dated 17 February 2023. She reiterated that she required more time to complete her response, including because she was obtaining information from two former CFO’s of NAAJA (Mr Morris and Mr Rossingh) and because she had an outstanding request to access NAAJA’s systems to obtain documents relevant to her response. The cover letter assumes some significance in what follows and so is extracted here in full:

We refer to the letters from Colleen Rosas on behalf of NAAJA to our client dated 28 November 2022 and 19 January 2023 and your letter to us of 3 February 2023.

There have been three iterations of allegations raised against our client.

We note that the first iteration of allegations raised against our client on 28 November 2022 – which contained the extremely serious allegation that our client had, without authority, applied or affixed Ms Rosas’ electronic signature to a letter dated 29 June 2020 - has been abandoned by your client.

This has occurred notwithstanding that this first iteration of allegations was the basis upon which our client was suspended from work, and was the sole identified subject of the investigation first notified to our client in Ms Rosas’ letter to our client 28 November 2022.

Notwithstanding the shambolic process adopted by your client to date, our client has been able to provide a partial response to the current iteration of allegations annexed to your letter to us of 3 February 2023.

The partial response prepared by our client is attached and marked ‘Attachment A’.

As we have explained to you already in our correspondence dated 14 and 15 February 2023, our client requires further time to prepare a complete response to the Allegations, having regard the historical nature of the allegations against her and the extended time period to which they relate.

Further, she can only be in a position to show cause why her employment should not be terminated, in accordance Ms Rosas’ letter to our client on 19 January 2023, once she has a complete response to the Allegations.

She will provide her complete response to the Allegations, and a response to the invitation to show cause why her employment should not be terminated, by Friday 24 January 2023.

In particular, we note that she intends to rely on material and information provided by two previous Chief Financial Officers of NAAJA, Noel Morris and Stephen Rossingh. We have only recently been able to establish contact with them and require time to complete gathering material and information from them.

Given that the current iteration of allegations annexed to your letter to us of 3 February 2023 primarily relate to matters of alleged financial mismanagement or misconduct occurring when Mr Morris or Mr Rossingh was the CFO of NAAJA (or, in Mr Rossing’s [sic] case, the Independent Chairperson of the Finance and Audit Risk Committee), the material and information they can provide is extremely probative and possibly determinative of one or more of the allegations raised.

Further, our client reserves the right to provide further particulars upon receipt of the additional material previously requested, including access to the NAAJA IT system.

Our client reiterates that she requires such access in order to locate such relevant documents as may still exist, and to have a genuine and meaningful opportunity to respond to the current iteration of the allegations.

(emphasis in original)

140    Ms Atkins provided documents in support of the partial response, some of which had earlier been provided to Mr Taziwa. They are discussed elsewhere in these reasons.

This proceeding lodged and notified to NAAJA’s lawyer

141    On 20 February 2023 at 12.09pm (ACST), Ms Atkins lodged in this Court the originating application in this proceeding. The originating application contained claims for urgent interlocutory injunctions restraining NAAJA from:

(1)    taking any further step or further acting on its investigation of misconduct alleged in the Updated Allegations Letter;

(2)    refusing to permit her from performing her duties as CEO in reliance upon the investigation; and

(3)    terminating her employment because of or for reasons including any of the alleged misconduct.

142    Unsealed copies of the originating application and supporting affidavit were sent to NAAJA’s lawyers at 1.59pm (AEST) on 20 February 2023.

143    It is not disputed that the action in this Court is a process or proceeding under a workplace law within the meaning of s 341(2)(b) of the FW Act and that by reason of those matters, Ms Atkins had a workplace right within the meaning of s 341(2)(b) of the FW Act that she proposed to exercise (by foreshadowing the litigation at least in correspondence on 14 and 15 February 2023) and that she in fact exercised (by commencing it). I will refer to that as the Proceedings Right.

144    The originating application was not sealed by Court on 20 February 2023 and, as a consequence, there was no formal service of the proceedings on NAAJA on that day.

20 February meeting

145    On 20 February 2023 at about 4.30pm there was a telephone meeting with Mr Kellock (and two other lawyers from King & Wood Mallesons) to discuss Ms Atkins’ response to the allegations (February Meeting). Those in attendance included Ms Rosas, Ms Ellis, Mr Espie (then appointed as NAAJA’s Principal Legal Officer), Ms Evans, Mr Taziwa and Ms Rena Stanton and Ms Moore.

146    Ms Stanton was referred to in evidence as an administrative officer responsible for taking minutes of NAJAA’s meetings, although no minutes emanating from NAJAA were admitted in evidence in connection with the February Meeting.

147    A file note of the meeting was taken by a person employed by NAAJA’s lawyers. The typewritten note contains a statement that it was prepared by Ms Sarah Tyrrell and that it was not and should not be regarded as a verbatim record of the telephone call.

148    The document was admitted in evidence as a record that accorded with Ms Rosas’ recollection of events. I do not consider that to be a wholly reliable or complete record as to what occurred for reasons I will later explain.

149    The notes record events to the following effect:

(1)    Ms Rosas referred to Ms Atkins’ response as “straight out lies” and said that “so many things … are absolutely fabricated”.

(2)    Mr Kellock said “Is that a unanimous decision of the Board?”

(3)    Ms Rosas said “Yes, a majority of the Board – the ones we have been able to speak to all agreed. The Board agreed at our last board meeting on 12 and 30 [sic] January to terminate her when we didn’t get any responses. We can get the minutes for that. No one knows [sic] anything about the other 8 vehicles until we got the report from [Mr Taziwa]”.

(4)    Mr Espie queried whether it was necessary for the Board to be reconvened.

(5)    Ms Ellis responded “[t]he Board have agreed”.

(6)    Mr Espie asked whether an “updated decision” was needed.

(7)    Ms Rosas responded “[n]o”.

(8)    The content of a letter giving notice of the termination was discussed. Ms Rosas confirmed that she would sign the letter that day, return it to Mr Kellock, and then send it to the Board.

(9)    Mr Kellock said:

Thank you for giving me that instruction.

I now need to tell you something, that will not surprise you. I am glad you told me you’ve made that decision, and we can execute it today.

[Ms Atkins] has instituted Federal Court proceedings late this afternoon against The NAAJA. Basically, it’s an adverse action claim. As part of those proceedings, she has sought an urgent interlocutory injunction to make any decision to terminate. I didn’t want to tell you about that until I heard from you what you wanted to do – but you were clear that you had decided to terminate already, so we should proceed down that path. That interlocutory application will disappear now that you have made the decision to terminate. Does that make sense?

Termination Letter

150    At 6.23pm on 20 February 2023, Mr Kellock sent a letter to Ms Atkins’ lawyer attaching a letter signed by Ms Rosas giving or purporting to give notice that her employment was terminated (Termination Letter). Among other things, the letter stated:

Having regard to your response to show-cause, as contained in that correspondence, and for otherwise lawful reasons, NAAIA has determined that it has completely lost trust and confidence in you in the continued performance of the role of Chief Executive Officer of NAAJA. Amongst other reasons, your response illustrates, in NAAJA’s view, dishonesty and potential unlawful conduct and accordingly, your continued employment is simply untenable. Indeed, NAAJA has already referred particular concerns in relation to your conduct to the Northern Territory police.

Accordingly, we advise that your employment is terminated effective immediately. You will now be made a payment in lieu of your applicable notice period and all other contractual/statutory entitlements owed to you also be paid to you.

151    Mr Kellock’s covering email said that Ms Atkins’ employment had been “terminated, effective immediately”. He said that Ms Atkins should immediately discontinue her claims for interlocutory relief because they were “redundant/futile” given that the employment had been terminated.

First case management hearing

152    On 21 February 2023 the matter came before me for a case management hearing to deal with Ms Atkins’ urgent application for an injunction restraining the termination of her employment. At the hearing, Mr Kellock told the Court that Ms Atkins’ employment had been terminated on the previous day and that the application for interlocutory relief was “dead in the water”. He said that the decision to terminate Ms Atkins’ employment was made before NAAJA had become aware that the originating application had been lodged in the Court.

PART 4: PLEADINGS

153    The issues are joined in the latest iterations of the pleadings, comprising Ms Atkins’ 2ASOC dated 17 September 2023, NAAJA’s Further Amended Defence dated 2 October 2023 (FAD), Ms Atkins’ Amended Reply dated 5 October 2023 (AR) and NAAJA’s Rejoinder dated 25 October 2023 (R).

Workplace rights

154    There is no dispute (and I find in any event) that Ms Atkins had workplace rights that she exercised (or proposed to exercise), specifically:

(1)    by making the Complaint she exercised the right in s 341(1)(c) of the FW Act to make a complaint or inquiry in relation to her employment;

(2)    by lodging the initiating documents in this proceeding on 20 February 2023 and providing those documents to NAAJA’s lawyers, she exercised the right in s 341(b) to initiate and participate in a proceeding under a workplace law; and

(3)    by threatening to commence legal action, including claims for urgent relief, she proposed to exercise the Proceedings Right.

155    It is necessary to make a further observation about Ms Atkins’ exercise of the Complaint Right. The allegation that she in fact exercised each of the workplace rights as defined in s 341 of the FW Act is admitted by NAAJA. That admission encompasses the circumstance that the Complaint was made bona fide and that it was one that was properly directed to its recipients, specifically with the intention that it be brought to the attention of the Board. In addition, the Complaint was in the nature of an inquiry in relation to Ms Atkins’ employment because it expressly sought the advice of the Board as to what should be done in relation to the subject matter raised in it. NAAJA’s admission that the Complaint was one that Ms Atkins was able to make in relation to her employment is consistent with the objective facts about the role of the Board, including its role in managing risks and in dealing with conflicts not only between NAAJA and other entities, but within NAAJA itself.

Adverse actions

156    Ms Atkins relies on five actions each of which is alleged to fall within the definition of “adverse action” in s 342 of the FW Act. I will refer to them by the same definitions employed in the pleadings (omitting the word “adverse” in connection with them).

157    The Suspension Action comprises action taken by NAAJA against Ms Atkins in:

(1)    suspending Ms Atkins from the duties of her employment;

(2)    alleging that she had engaged in impropriety in connection with the application of Ms Rosas’ signature on the Contract Extension Letter;

(3)    directing that she not attend for or perform work; and

(4)    informing her that her access to NAAJA’s IT systems had been suspended.

158    NAAJA admits that the Suspension Action was “adverse” because it prejudicially altered Ms Atkins position in her employment by making her employment less secure, denied her access to the workplace and the benefits of that access, preventing her from performing the duties of the employment and exercising her skills and responsibilities as CEO, humiliating her and subjecting her to distress and psychological injury:  2ASOC, [20]; FAD, [20]. NAAJA denies that doing those things had the additional consequence of subjecting Ms Atkins to treatment that was substantially different to the way in which she was ordinarily treated in the employment:  2ASOC, [19]; FAD, [19]. I do not understand the basis for that denial. The factual consequences of the action were seismic shifts in the manner in which Ms Atkins had previously been treated in her employment. She had not ordinarily been subjected to allegations having no proper basis (as to which see below), nor had she been shut out of her workplace, prevented from doing her duties or prevented from accessing NAJAA’s IT systems. I am satisfied that the Suspension Action can be characterised in the additional manner pleaded and so fall within the alternate limb of the definition.

159    Ms Atkins further alleges that the Suspension Action was an adverse action for the additional reason that it discriminated adversely between NAAJA employees, namely between her and Ms Evans:  2ASOC, [21]; FAD, [21]. That disputed issue is resolved elsewhere in these reasons.

160    The Review Action comprises NAAJA’s conduct in engaging BDO “to discover evidence” about whether Ms Atkins had engaged in irregular, inappropriate or criminal activity:  2ASOC, [28A(a)]. There are disputes as to whether NAAJA took the Review Action other than in good faith and on a proper basis and thereby injured Ms Atkins in her employment and as to whether, in taking the Review Action, NAAJA discriminated between Ms Atkins and Ms Evans:  2ASOC, [28B], [28D]; FAD, [28B], [28D].

161    The Review Reliance Action comprises NAAJA’s conduct in adopting the conclusions, opinions or recommendations in the BDO Report in deciding (whether by valid resolution or otherwise) to terminate Ms Atkins’ employment and reporting her to the police. NAAJA admits that the Review Reliance Action altered Ms Atkins’ position in the employment to her prejudice:  2ASOC, [28E]; FAD, [28E]. There is a dispute as to whether the action was adverse for the additional reason that it discriminated between Ms Atkins and Ms Evans:  2ASOC, [28D]; FAD, [28D].

162    The Misconduct Action comprises NAAJA’s conduct in sending the Allegations Letter to Ms Atkins on 19 January 2023. There is a dispute as to whether the conduct was adverse in that it injured Ms Atkins in the employment, and as to whether it altered her position in the employment to her prejudice, or involved a threat to do so:  2ASOC, [25], [26]; FAD, [25], [26].

163    As mentioned earlier in these reasons, there is a dispute as to whether NAAJA has terminated the employment relationship. Ms Atkins’ written closing submissions make repeated reference to there being an onus on NAAJA to prove that the termination of the employment relationship was legally effective. I do not accept that submission. The onus of proof in all respects is on Ms Atkins, except to the extent that s 361 of the FW Act provides otherwise. Section 361 does not operate to reverse any onus of proof concerning proof of whether an action was taken or proof that the action was adverse.

164    The case alleging a contravention of s 340 of the FW Act proceeds on alternate basis that Ms Atkins has either been purportedly dismissed or actually dismissed, each scenario alleged to involve an adverse action. The relevant action is NAAJA’s conduct in sending the Termination Letter to Ms Atkins on 20 February 2023 following the February Meeting. It is convenient to refer to that conduct as the Dismissal Action irrespective of whether the employment relationship has been validly terminated. NAAJA’s position is that the employment relationship was terminated and it is on that basis that it admits that the action was adverse:  2ASOC, [32]; FAD, [32]. It disputes that a purported dismissal could constitute an adverse action. It is necessary to resolve that dispute because the assessment of any remedy will depend in part on a proper identification of the manner and extent to which Ms Atkins has been prejudiced in her employment.

165    If there has been a purported dismissal, I would have no difficulty concluding that the conduct of an employer in purporting to dismiss an employee is adverse action for the reasons alleged by Ms Atkins (at 2ASOC, [31]), specifically because it made her employment less secure (by denying the existence of the employment relationship) and because it deprived Ms Atkins of the opportunity for the Board to consider her response to the Allegations Letter (as later revised).

166    The several aspects of the dispute about whether there has been a dismissal or purported dismissal will be summarised in Part 9 below.

NAAJA’s reasons for taking the actions

167    The starting presumption is that the adverse actions were taken because of the reasons alleged by Ms Atkins in the 2ASOC. The allegations (and hence the presumptions) are that the:

(1)    Suspension Action, Review Action, Review Reliance Action, and the Misconduct Action were each taken because Ms Atkins had exercised the Complaint Right:  2ASOC, [22], [27], [28F]; and

(2)    Dismissal Action was taken because Ms Atkins had exercised the Complaint Right, or because she had exercised (or had proposed to exercise) the Proceedings Right, or in order to prevent Ms Atkins from exercising the Proceedings Right:  2ASOC, [33].

168    Section 361 of the FW Act operates to supply the factual findings as to NAAJA’s reasons for taking each action: the presumed reasons are contravening reasons. Proof of those matters by Ms Atkins is not necessary. It is enough that she has pleaded that the actions were taken because she exercised one or more of the workplace rights. The issue to be determined in this aspect of the case is whether NAAJA has established, to the requisite standard, that the adverse actions were not taken for reasons that included the pleaded prohibited reasons. NAAJA must positively establish those matters in order to displace each of the presumptions that must otherwise operate.

169    NAAJA’s pleaded case is that the:

(1)    Suspension Action was taken to facilitate an investigation into the validity of Ms Rosas’ signature on the Contract Extension letter: FAD, [22];

(2)    Review Action was taken because of concerns of directors as to the “inconclusive findings” of the Ward IT Report and as to whether Ms Atkins had engaged in (or was engaging in) conduct that breached standards of corporate governance which risked bringing NAAJA’s reputation into disrepute:  FAD, [28F]; and

(3)    Misconduct Action, Review Reliance Action and the Dismissal Action were taken “because of the BDO Findings”:  FAD, [28F], [33].

170    There are additional disputes concerning the status of Mr Taziwa as an agent of NAAJA acting within the scope of his actual or apparent authority within the meaning of s 793(1)(a) of the FW Act giving rise to a question of whether his conduct and accompanying state of mind can be attributed to NAAJA:  AR, [11]. A similar plea is raised in connection with the status, conduct and state of mind of NAAJA’s lawyer, Mr Kellock:  AR, [14].

Claimed relief

171    Ms Atkins alleges that she has suffered loss and damage in the form of lost income, distress, anxiety, shock, humiliation, damage to her professional reputation, psychiatric injury, loss of earning capacity and medical expenses.

172    The relief sought on her Third Amended Originating Application filed on 27 September 2023 includes:

(1)    several declarations of contravention;

(2)    an order restraining NAAJA from taking any further steps to act upon the investigations into alleged misconduct by Ms Atkins, and from preventing her from performing her duties as CEO;

(3)    an order restraining NAAJA from terminating Ms Atkins’ employment or taking other action by reason of any misconduct alleged against her or, alternatively, an order that Ms Atkins be reinstated and treated as though she had been continuously employed; and

(4)    orders for compensation and the imposition of penalties (made payable to Ms Atkins) pursuant to ss 546(1), 546(2)(b) and 546(3)(c) of the FW Act in respect of proven contraventions.

173    Beneath the broadly stated pleaded disputes is a multitude of factual contests, some of which are unnecessary to decide. Before turning to summarise the witness testimony I consider it convenient at this juncture to make findings about two subject matters that form part of the objective background against which the disputes on the pleadings will be assessed. They relate to Ms Atkins’ participation in a scheme for the purchase of vehicles (a topic referred to in the BDO Report, the Allegations Letter and the Updated Allegations Letter) and the approval of Ms Atkins’ salary in the period following 2017. The findings set out in later sections of my reasons have been reached following my assessment of the evidence as a whole, including the witness testimony. It is borne in mind that my assessment of the witnesses is to remain focussed on whether they in fact had the states of mind alleged in their testimony, which includes an assessment as to whether their beliefs about the existence or non-existence of fact are bona fide. A belief may be bona fide, even if it be objectively wrong. But that does not render the background objective facts irrelevant. In the present case they assume some forensic significance for reasons that will be explained.

PART 5: TRIAL

174    The trial proceeded over eight days in Darwin and Adelaide. The evidence included the SOAF and the documents attached to it, two books of documents and the affidavits or statements of 19 witnesses, 15 of whom were cross-examined.

175    For the most part, evidence-in-chief at the trial was adduced by affidavit or by witnesses adopting the truth of written statements.

176    The SOAF is read into evidence for the purposes of s 191 of the Evidence Act 1995 (Cth). No party gave notice of any challenge to the authenticity of any document.

177    The following materials were read on Ms Atkins’ case (subject to the exclusion of some parts of them, and rulings as to the use of other parts):

(1)    affidavits of Ms  Atkins affirmed 4 August 2023 and 27 September 2023;

(2)    affidavit of Ms Kate Barter affirmed 4 August 2023;

(3)    affidavits of Mr Santhiraruban Sivasubramaniam affirmed 7 August 2023 and 6 October 2023;

(4)    affidavit of Ms Moore sworn 30 August 2023;

(5)    affidavit of Ms Nicole Suzanne Dunn affirmed 27 September 2023;

(6)    affidavit of Mr Morris affirmed 28 September 2023;

(7)    witness statement of Carol Smith adopted in evidence on 25 October 2023;

(8)    witness statement of Marilyn Smith adopted in evidence on 25 October 2023; and

(9)    parts of affidavits of Ms Rosas not read on NAAJA’s case.

178    In addition, upon learning that he would not be called to give evidence on NAAJA’s case, Ms Atkins read two paragraphs of the affidavit of Mr Espie affirmed 4 September 2023.

179    The Court read the following material on NAAJA’s case, against subject rulings on admissibility and use:

(1)    affidavit of Ms Rosas sworn on 8 September 2023 (which on its terms refers to and relies upon an earlier affidavit of 9 March 2023);

(2)    affidavit of Ms Ellis sworn 8 September 2023;

(3)    affidavit of Ms Garlett affirmed 8 September 2023;

(4)    affidavit of Ms Taylor sworn 31 August 2023;

(5)    witness statement of Ms Assan dated 30 October 2023;

(6)    witness statement of Ms Maymuru dated 30 October 2023;

(7)    affidavit of May Rosas affirmed 8 September 2023;

(8)    affidavit of Mr Woodbury affirmed 5 September 2023;

(9)    affidavit of Ms Shannon sworn 7 September 2023:

(10)    witness statement of Mr McLennan (undated); and

(11)    affidavit of Mr Hill sworn 7 September 2023.

PART 6:  THE ALLEGED MISCONDUCT

180    Both parties adduced evidence about the underlying factual basis (or lack thereof) of the “findings” contained in the BDO Report. The cross-examination of Ms Atkins in particular traversed a good deal of that territory. Care must be taken when considering that evidence. An employer may take adverse action against an employee in reliance on information that is objectively mistaken or incorrect without necessarily contravening s 340 of the FW Act. Accordingly, it does not form a part of the Court’s task to enquire at large into the misconduct alleged against Ms Atkins. However, some examination of the objective facts and circumstances is necessary because in the present case, that material relevantly informs my assessment of the matters known and unknown to some witnesses. It is therefore relevant to my evaluation of their testimony about their states of mind.

181    In this section of my reasons I will describe parts of the Terms, the correspondence sent by Ms Atkins to BDO, the “findings” contained in the BDO Report, the allegations contained in the Allegations Letter, Ms Atkins’ response to them and some of the documentary and other evidence that supports that response. There will not be a complete description of the documents. The focus is on key aspects of the “misconduct” said by NAAJA to have been the reason for one or more of the adverse actions taken against Ms Atkins.

The Terms

182    The “Priority” items set out in the Terms are as follows:

Priority:

1.    Was the Chief Executive Officer’s work credit card used in accordance of NAAJA’s Financial Management Framework,

a.    ie; work related purposes only, if not, identify and list what transactions, including costs were outside of Financial Management Framework Policy:

2.    list the number of contracts and funding agreements that NAAJA entered into and identify if any of these contracts and agreements were used outside of NAAJA Managing Contracts and Funding Agreement Policy?

a.    ie; any misused/discrepancies/illegal/unethical approvals outside NAAJA’s Policy.

3.    The use of NAAJA funds/funding agreement for the private purchase of 4 senior staff personal vehicles or expenditure through the salary sacrifice process.

a.    ie; who authorised these purchases and was the authorisation within the Financial Management Framework Policy.

183    Under the heading “Medium” there appears a list of disparate issues going to the question of whether Ms Atkins had acted without the necessary approvals from the Board in a variety of subject matters, or otherwise acted unethically. BDO was directed to identify who had authorised certain benefits such as travel allowances, a vehicle allowance or working from home arrangements. There is a question about whether there had been proper approvals of staff long service leave arrangements. There is then an allusion to nepotism against Ms Atkins without any specific allegation, coupled with a request that BDO review whether she had complied with recruitment processes. There are “concerns of transparency” raised about a commercial relationship for the provision of training and mentoring for employees, including a question about whether those arrangements involved a conflict of interest. That topic includes a reference to the Board seeking confirmation on questions it wanted investigated. There is then a question about whether Ms Atkins had engaged in “unethical practice” by first opposing but then supporting a proposal for the appointment of a Deputy CEO.

184    The issue relating to Ms Rosa’s signature on the Contract Extension Letter is raised in the Terms as the second last “Medium” priority item. The scope of BDO’s work on that topic was limited to the following:

Audit all relevant documentation related to the Chief Executive Officer and other employees contracts commencing 1 July 2017 and their entitlements:

•    The Board would like a review into the following dot points:

•    The Chief Executive Officer’s contract extension and Chairperson's signature on a Letter dated in July 2020.

•    Need access to the Renumeration Committee Minutes

•    Who authorised the Salaries/Levels of employees outside the Enterprise Bargaining Agreement.

•    The Board Chairperson is meant to sign off on the Chief Executive Officer’s credit card reconciliations each month and these reports were meant to be table [sic] at Audit and Finance Risk Committee - would like to view detailed transactions of the monthly reconciliations?

In the Chief Executive Officer’s Contract, what other entitlements is the position entitled to receive.

Content of the BDO Report

185    The BDO Report contains “factual findings” to the effect that from 2010 “management” established an in-house “Novated Lease” structure which allowed for staff to acquire motor vehicles funded by NAAJA, which had not been approved by the Board. It states that the arrangement did not meet the description of a novated lease but was in fact in the nature of a personal loan facility. It states that the arrangement was not cost neutral to NAAJA because no administration fees had been charged and there was a “lost opportunity” cost in the provision of the finance.

186    The BDO Report describes the scheme as involving repayment of a personal loan by way of monthly salary deductions. It states that a review of the “Financial Management Framework” and employee contract documents “did not indicate that this was a permissible arrangement” or that the Board had approved it.

187    The BDO Report identified that Ms Atkins had purchased nine vehicles using the scheme between September 2010 and August 2014 with a total value of $346,907.00 described in a table identifying each vehicle, including a Range Rover Sport purchased in August 2014. The BDO Report goes on to state:

We could not establish, through documentation provided, as to whether this arrangement was approved by the Board considering that NAAJA was acting a [sic] finance provider. Clause 15 of the Financial Management Framework stipulates the following in relation to loans:

‘All Mortgages, loans, notes, and other indebtedness contracted in the name of NAAJA (other than a routine supplier or vendor credit applications, leases or item of an administrative nature required for general operations) shall require the approval and authority of the Board of Directors.’

In addition, we could not establish, through documentation provided, as to whether the individual vehicle purchases were approved by the Board, especially considering that the August 2014 transaction had a value of $118,841. According to the Financial Management Framework, the CEO has an upper purchasing and payment limit of up to and including $100,000. Any transaction exceeding this threshold would have required Board authorisation.

188    There is no reference in the BDO Report to the Board having considered the operation of the scheme and examining its Fringe Benefit Tax (FBT) implications in 2015, nor of the Board approving amounts for each employee to pay, nor of the arrangements identified by Mr Rossingh for the payments to be made by Ms Atkins upon the cessation of the scheme. The BDO Report contains no reference to a 2015 memo (discussed below) and no reference to the Board minutes in which that memo was considered and acted upon.

189    The BDO Report goes on to discuss “repayments” of the personal loan that Ms Atkins had made in 2015. It contains “findings” that in order to make some of that payment, Ms Atkins had “cashed” out significantly more annual leave hours that were then owing to her. It states that BDO was unable to establish whether the annual leave encashment was approved by the Board “in the absence of any guidance from the available documents at the time when the transaction took place”.

190    There is a separate “finding” to the effect that in June 2014, Ms Atkins had cashed out her accrued long leave entitlement, before she had served 10 years employment. That was described as a transaction involving illegality.

191    The BDO Report stated without qualification that “the corporate credit card” had been used for personal transactions” and that it had been used for vehicle expenses in circumstances where Ms Atkins had been paid a vehicle allowance. Details of those transactions were provided in annexures to the report. In and of itself the BDO Report does not explain why the expenses listed in the annexures were assumed to be “personal” in nature nor does it explain why the vehicle expenses were assumed to relate to Ms Atkins’ personal vehicle. Of themselves, the descriptions in the annexures provide scant information upon which those assumptions could be based. On their face some of the descriptions of personal expenditure relate to accommodation and flights referrable to the names of other NAAJA employees mentioned in the evidence. The “personal” expenditure is said in the BDO Report to involve 61 transactions totalling $20,658.00.

192    The BDO Report contained no information in relation to the signature allegation, notwithstanding that the Terms had sought a review of “The Chief Executive Officer’s contract extension and Chairperson’s signature on a Letter dated in July 2020”.

Content of the Allegations Letter and the Updated Allegations Letter

193    There are eight allegations contained in the Allegations Letter, expressed as follows:

Allegation 1

1.    Without Board approval, you recklessly and/or wrongfully, entered into leases for a total of nine vehicles via the NAAJA novated lease arrangement, as set out in Attachment 2, which contravened clause 15 of the Financial Management Policy:

15.    Mortgages, Loans, Notes

All Mortgages, loans, notes and other Indebtedness contracted in the name of NAAJA (other than a routine supplier or vendor credit applications, leases or item of on administrative nature required for general operations) shall require the approval and authority of the Board of Directors.

All such loans or indebtedness must be reviewed and recommended to the Board by the CEO for approval before entering into a binding contract.

Allegation 2

2.    On 8 August 2014, you recklessly and/or wrongfully arranged for the purchase by NAAJA of a Range Rover Sport for a price of $129,119.07, exceeding the $100,000 purchase delegation limit without approval of the Board.

Allegation 3

3.    On 24 June 2015, you recklessly and/or wrongfully cashed out 278 hours of holiday (annual) leave plus corresponding annual leave loading, totalling $43,017.29, 236.74 hours of that figure, totalling approximately $31,000, exceeded your holiday leave accrual at that date. In this regard, your holiday leave accrual at that date was only 41.26 hours.

See supporting documentation at Attachment 3.

Allegation 4

4.    On 24 June 2015, in contravention of applicable long service leave legislation, and further, wrongfully and/or recklessly, you cashed out $53,172.09 of long service leave.

See supporting documentation at Attachment 4.

Allegation 5

5.    In respect of the period from 2019 onwards (if not earlier), you were provided with an annual vehicle allowance. Such vehicle allowance was paid to you to compensate you for all running costs/expenses of your applicable vehicle in the performance of your duties as CEO of NAAJA. Notwithstanding this, you charged your company credit card with vehicle-related expenses which the vehicle allowance was otherwise intended to cover on the occasions set out in Attachment 5.

Allegation 6

6.    Without appropriate Board approval and recklessly and/or wrongfully, you made personal purchases with your company credit card on the following occasions:

(a)    On 14 February 2019 you purchased tyres for personal vehicle registration CB42BB to the value of $884.00;

(b)    On 27 September 2021 you purchased material and canvases for an artwork to the value of $1,310.00; and

(c)    On 27 October 2021 you purchased material and canvases for an artwork to the value of $60.00.

See supporting documentation at Attachment 6.

Allegation 7

7.    You failed to obtain appropriate approval for your credit card reconciliations for all months throughout the period of 1 January 2019 to 30 November 2022 excluding the following months:

(a)    July 2021;

(b)    August 2021;

(c)    September 2021;

(d)    October 2021; and

(e)    November 2021.

See supporting documentation at Attachment 7.

Allegation 8

8.    You recklessly and/or wrongfully approved your own Lost Receipt Declaration Forms on the following occasions:

(a)    17 October 2022, amount totalling $74.00;

(b)    18 November 2020, amount totalling $30.00;

(c)    23 November 2020, amount totalling $58.59;

(d)    23 November 2020, amount totalling $62.98; and

(e)    30 November 2020, amount totalling $110.00.

See supporting documentation at Attachment 8.

194    The first two allegations relate to an arrangement for the purchase of vehicles participated in by a number of NAAJA employees, including Ms Atkins. I will refer to it as the Vehicle Scheme.

195    The allegation concerning personal expenditure on the credit card is significantly more narrow than the “findings” of personal expenditure set out in the BDO Report. It is confined to three transactions totalling $2,254.00.

196    The Allegations Letter contained no allegation concerning forgery or other misuse of Ms Rosas’ signature.

197    The Updated Allegations Letter was sent on 3 February 2023, after the Termination Resolution was made. It contained revisions to the first two allegations in a number of respects. The revised allegations were as follows:

Allegation 1

1.    You improperly used NAAJA funding money to purchase the following seven vehicles for personal use between 2010 and 2014, in breach of clauses 8 and 13 of the Indigenous Legal Assistance and Policy Reform Program Funding Agreement dated 20 July 2011.

1.    February 2012    Mazda 2 MAXX    $21,100

2.    February 2012    Jeep Patriot        $22,500

3.    July 2012    Jeep            $8,736

4.    August 2012    Range Rover Sport    $88,253

5.    May 2014    Toyota RAV4        $18,500

6.    June 2014    VW Amarok        $28,700

7.    August 2014    Range Rover Sport    $118,840

Allegation 2

2.    On 8 August 2014, you arranged for the purchase by NAAJA of a Range Rover Sport for a price of $129,119.07, exceeding the $50,000 purchase delegation limit contained in clause 2.3 of the Finance Process dated 18 July 2014 and in breach of clause 13.3 of the Indigenous Legal Assistance and Policy Reform Program Funding Agreement dated 20 July 2011.

198    There are notable differences between the original allegations and those revisions, including the removal of that part of the allegation that referred to the lack of Board approval, the removal of the phrase “recklessly and/or wrongfully”, the removal of a reference to “entered into leases”, and the reduction in the vehicle numbers from nine to seven. The words “recklessly and/or wrongfully” were also removed from the second allegation, and the exceeded purchase limit was reduced. To the extent of those differences, the updated allegations do not reflect the “findings” contained in the BDO Report considered by directors at the January Meeting,

199    As I have mentioned, neither the Allegations Letter nor the Updated Allegations Letter contained any allegation about the misuse of Ms Rosas’ signature.

Ms Atkins’ correspondence to BDO

200    Ms Atkins’ correspondence of 9 January 2023 was received by Mr Taziwa after BDO received the Terms and before the BDO Report was complete. Ms Atkins sent the correspondence after becoming aware that BDO was conducting an investigation, although she was not aware of the scope of the Terms. As explained elsewhere in these reasons, the content of the correspondence was known to Ms Rosas. She did not return it to Mr Taziwa nor ask him to read it or take it into account. She withheld the information contained in it from those in attendance at the January Meeting. That correspondence is therefore relevant to my assessment of Ms Rosas’ knowledge and motivations.

201    By her email, Ms Atkins said that she understood that BDO had been contracted to investigate her salary and contractual arrangements. As to the contract, she said that she had been accused of giving herself a salary increase, making up her own salary and putting the Chairperson’s signature on a letter of extension dated 29 June 2020. She provided Mr Taziwa with a copy of the Complaint and said that it was strange that the Board was accusing her of something that occurred in June 2020 in the same week that she had made the Complaint about Ms Evans. On the topic of her contractual arrangements, Ms Atkins said:

I provided the Chairperson on the 14th November 2022 with documentation which including:

•    Megan Lawton conducting my salary review in December 2017 (Attachment 2)

•    The NAAJA Board minutes from 14 December 2017 which approves my salary (attachment 3)

•    A letter from Chairperson Ruby Stanley confirming this salary

•    An external performance review conducted by Megan Lawton in January 2020 which was used to extend my contract.

•    The letter of extension signed by the NAAJA Chairperson on 29th June 2020 extending my contract from 1/7/20-30/6/25. I had a lawyer do a certified copy and video copy and the Chairperson come into the NAAJA office and took the original from my Executive Services Co-Ordinator and left with it. (Attachment 4)

•    My payslip from November which shows I didn’t receive a salary increase or CPI from January 2018-30 June 2020 and I didn’t receive a salary increase from 1/7/20 to November 2022 and only received a CPI as per the NAAJA EBA on 1/7/20, 1/7/21 and 1/2/22. (Attachment 5)

202    On the topic of vehicle leasing, Ms Atkins provided information to the effect that in 2014 NAAJA’s then CFO Mr Morris organised “NAAJA lease agreements” for seven staff, including herself, and that advice had been received by NAAJA’s auditors in relation to them. She said that in 2014 NAAJA purchased a Range Rover vehicle for $129,118.00. She said that after Mr Rossingh replaced Mr Morris in 2015, Mr Rossingh presented a memo to NAAJA’s FAR Committee on 13 May 2015 and that the matter had been considered at a Board meeting on the following day. She stated the minutes of those meetings could be found in a folder in her office. She said that the Board had agreed that she pay a contribution to reduce NAAJA’s FBT, and agreed that the vehicle be sold to her for the outstanding amount of $115,801.41. She said that she had paid those amounts by taking out a personal loan for $100,000. She said that the remaining balance was paid by way of deduction from her annual leave.

203    The correspondence attached a number of documents now in evidence before me. They include Mr Rossingh’s memo to the Board in 2015. That is a document that was in Ms Rosa’s possession at the time of the January Meeting and its contents are relevant for that reason. It is convenient to record its content here.

Mr Rossingh’s memo

204    As correctly recorded in Ms Atkins’ correspondence, in 2015 Mr Rossingh raised issues about NAAJA’s tax liabilities in connection with the Vehicle Scheme. They are set out in a memo addressed to the Board, incorrectly dated 26 March 2014.

205    The memo recorded that the Vehicle Scheme had FBT implications “notwithstanding that the board and CEO sought assurances from the previous EO Finance and the auditor that the arrangements had no adverse financial implications on NAAJA and that advice was followed by the CEO and Board in good faith”.

206    That part of the memo indicates that the Board in 2014 was aware of the Vehicle Scheme, obtained advice from an auditor about its tax implications and followed that advice.

207    Mr Rossingh included calculations of the amount that was to be paid by Ms Atkins on the dissolution of the Vehicle Scheme, advised that she had offered to pay post tax contributions to reduce NAAJA’s FBT liability to zero, said that she had acted on the advice of an auditor in good faith, noted that NAAJA had not previously provided her with a maintained vehicle (which was usual practice for CEO’s), and recommended that a vehicle allowance be paid to her. The memo continued: “I thank the CEO for the exemplary way in which she has sought this matter to be resolved”.

208    In addition, the memorandum recommended that NAAJA sell to Ms Atkins the current vehicle that had been obtained under the Vehicle Scheme (being the same Range Rover vehicle referred to in the Allegations Letter) for $115,801.41. That part of the memo confirms that the Board in 2015 was aware that NAAJA had purchased that vehicle under the Vehicle Scheme, and that Ms Atkins had then acquired it from NAAJA at the Board’s direction.

Board Minutes

209    Board minutes show that a special meeting of NAAJA’s FAR Committee (then including Ms Ellis) and the Board (then including Ms Rosas, Ms Ellis and Mr McLennan) were held in May 2015 at which the Board received accounting advice and accepted the recommendations that had been made by Mr Rossingh. The minutes show those resolutions were moved by Ms Rosas. In addition, there was a resolution that Ms Atkins be paid a vehicle allowance, that resolution was seconded by Ms Ellis, who was in attendance.

210    In the same meeting the Board approved a new five year contract for Ms Atkins to commence on 1 July 2015. Plainly enough the issues that had arisen at that time about the Vehicle Scheme did not present any reason to bring Ms Atkins’ employment to an end in 2015. To the contrary, the Board extended her contract for a further five years. Those are the Board minutes to which Ms Atkins referred in her correspondence to BDO, including by directing Mr Taziwa where to find them.

The affidavit of Mr Morris

211    Mr Morris gave unchallenged evidence as why the Vehicle Scheme was established and how it operated. An initial objection to the whole of the affidavit was not pressed and he was not required for cross-examination. I accept his evidence and here summarise its effect.

212    Mr Morris commenced employment with NAAJA in 1997. He was appointed NAAJA’s CFO some years into his employment. In that role he had oversight of NAAJA’s financial operations as well as its human resources. He retired in 2014 and was then replaced by Mr Rossingh.

213    Before Ms Atkins commenced her employment, a financial audit had identified that there were some employees who had large amounts of accrued leave. NAAJA’s auditor recommended that the staff be required to take the leave or that some other way be found to use it. About 12 months later Mr Morris came up with an idea of a “novated vehicle leasing arrangement” which was discussed with and approved by NAJAA’s new auditor. He described the arrangement as follows:

…  The way I saw this was that employees with a lease arrangement who left NAAJA could if they wanted to use the money they had accrued as leave that NAAJA was obliged to pay out when the employment ceased to payout the novated lease. The leave offered us security that the vehicle could be paid for and enabled us the ability to offer another benefit of NAAJA employment to attract and retain staff.

214    Mr Morris presented the arrangement to the whole of NAAJA’s Board when he came up with the idea. He explained it to Board members. He did not recall any of the directors asking questions about it. Mr Morris also explained the Vehicle Scheme to the FAR Committee which at that time included three of NAAJA’s directors. No members of the FAR Committee asked any questions or expressed any opinion about it.

215    Transactions relating to the Vehicle Scheme were recorded in NAJAA’s financial records that were provided to all directors on quarterly basis. Between the time of the creation of the Vehicle Scheme and Mr Morris’s retirement in 2014, the FAR Committee met twice a year to review the financial records in detail. The “novated leases” were always identified by a line item in the ledgers. In addition, NAAJA’s financials were audited each year while the Vehicle Scheme was in place and that the auditor never raised any issues or concerns about the arrangement with him. In late 2013 or early 2014 NAAJA’s financial records were audited by the Commonwealth Attorney-General’s Department. Mr Morris disclosed the Vehicle Scheme to that auditor and he had heard nothing from that auditor about it.

216    Following his retirement, Mr Morris became aware that NAAJA had received advice about negative tax implications arising from the Vehicle Scheme. He was aware that employees were required to make payments for the purpose of correcting the FBT implications, and he personally paid $42,874.44 to NAAJA to correct the implications for the vehicles he had purchased under the Vehicle Scheme.

217    Mr Morris established the Vehicle Scheme before Ms Atkins commenced her employment with NAAJA. She played no role in its creation or implementation. When Ms Atkins commenced her employment, Mr Morris explained to her that she could access the Vehicle Scheme once she had accrued sufficient annual leave entitlements.

218    Under the Vehicle Scheme, the eligible employee would select a vehicle with a value equivalent to or less than the monetary value of their leave balance. The employee’s chosen vehicle would then be purchased in NAAJA’s name. To cover the cost of the vehicle, an agreed amount was deducted from the employee’s salary over an agreed period. The employee’s leave balance was treated as “security for the value of the vehicle” and the value of each employees’ “current novated lease” was recorded as a separate line item in the NAAJA’s financial accounts. Once the cost of the vehicle had been met by the employee’s repayments, the employee paid a $1 residual amount and the vehicle was transferred into the employee’s name. Employees signed a contract with respect to the purchase of each vehicle.

219    Mr Morris said that no vehicle was ever purchased under the Vehicle Scheme for Ms Atkins or any other employee without the knowledge and approval of Mr Morris.

Ms Atkins’ response to the allegations

220    Through her lawyer’s letter of 17 February 2023, Ms Atkins sought an additional week to provide a complete response including because she intended to rely on material provided by Mr Morris and Mr Rossingh that were “extremely probative and possibly determinative of one or more of the allegations raised”. The lawyers’ letter contained her partial response to the allegations, authored by Ms Atkins in the first person.

221    Among other things, Ms Atkins asserted that the Board had obtained advice from NAAJA’s auditors that the “leasing arrangements” could be used to incentivise NAAJA employees and could be legally entered into, and that the arrangements were approved by Mr Michael Petterson (now deceased) on behalf of the Board. She enclosed Mr Rossingh’s memo and stated that she entered into arrangements for motor vehicles between 2012 and 2015. She asserted that NAAJA’s Board had at the relevant time been aware of the conduct forming the subject of the allegation and NAAJA had waived any right to complain about it now. She said that the Range Rover vehicle forming the subject of the second allegation was purchased under the same Vehicle Scheme with the approval of Mr Petterson. She said that her lawyers had requested minutes of the Board to assist with her response, but those requests had been refused.

222    In response to the allegation that she had used a corporate credit card for personal expenses, Ms Atkins said that the two items described as art supplies were not personal expenses but related to the purchase of art work for NAAJA’s Palmerston and Darwin Offices where they remained on display. She said that she could not respond to the allegation about the purchase of tyres without having access to the computer that had been taken from her.

223    In response to the allegation that she had used the corporate credit card for fuel expenses Ms Atkins said that she required the use of her computer to respond to discrete items. She said that the expenditure related to the use of NAAJA vehicles and otherwise were referrable to work related travel. She said that she understood that her vehicle allowance related to her personal vehicle as a part of her salary package and that she had not been told that she could not charge any other work-related vehicle expenses to the corporate credit card.

224    In response to the allegation that she had “recklessly and/or wrongfully” cashed out annual leave in excess of her accrued entitlement, Ms Atkins provided a payslip from June 2015 showing that she had a balance of 198.90 hours after the leave entitlement was cashed out. She said that she had been directed by the Board to work with Mr Rossingh (then CFO) to facilitate payment for the Range Rover vehicle and that he had advised her to make a part payment by cashing out her leave entitlement, which she did.

225    In response to the allegation that she had illegally cashed out long service leave, Ms Atkins said that the entitlement had been cashed out on the advice of Mr Rossingh after she had been directed to work with him to facilitate payment for the Range Rover.

226    Ms Atkins provided responses to the remaining allegations. It is not necessary to summarise them here as they do not feature in the evidence to follow.

227    In respect of the allegations more generally, Ms Atkins said that the Board had at relevant times been aware of the matters that were raised and that NAAJA had waived any right to now complain about the conduct.

PART 7:  WITNESSES

228    The summaries that follow include some salient features of the witness testimony. Some of the testimony goes to uncontroversial matters and has already been subsumed in the chronology of events. A number of topics traversed in the evidence-in-chief and in cross-examination are of little moment. Whilst that evidence has been considered I do not detail it here because the weight afforded to it would not affect the ultimate outcome based on the more critical issues.

229    I record my impressions of the witnesses at the conclusion of these reasons where they can be understood in the context of the evidence as whole.

Ms Atkins

230    Ms Atkins deposed that she first became aware of the Vehicle Scheme in 2007 following her appointment, that she had been told by Mr Morris that it was approved by the Board and was intended to be cost neutral to NAAJA, that she was not at that time eligible to participate because she had not accrued sufficient leave entitlements, and that she had later been told (in 2012) that she was eligible to participate. Her evidence about her participation in the Vehicle Scheme and its cessation was consistent with the material she attempted to provide to BDO, the evidence of Mr Morris and with her written response to the allegations. She said that there had been a mistaken deduction from her long leave entitlements but that had later been corrected by a reversal made on her own instructions. That reversal occurred before the involvement of BDO and is evidenced by a payslip.

231    Ms Atkins said that she received no cash payment in lieu of annual leave. Rather, her leave accruals were applied in reduction of the debt owing after the cessation of the Vehicle Scheme. Ms Atkins said that all of that was done as advised by Mr Rossingh, then the CFO.

232    Ms Atkins’ evidence relating to the Vehicle Scheme is supported in part by contemporaneous records of NAAJA annexed to her affidavits or otherwise before the Court and I accept it. Those records include:

(1)    payslips recording the recovery of money from Ms Atkins;

(2)    documents evidencing the taking of the personal loan in the amount of $100,000.00;

(3)    Mr Rossingh’s memo concerning the FBT implications of the Vehicle Scheme;

(4)    minutes of the special purpose meeting of NAAJA’s FAR Committee held on 13 May 2015 (attended by Ms Ellis), at which Mr Rossingh presented information and recommendations were prepared for the Board; and

(5)    minutes of a Board meeting dated 14 May 2015 recording resolutions calculating amounts to be paid by various employees upon the dissolution of the Vehicle Scheme, including a resolution (moved by Ms Rosas) calculating amounts to be paid by Ms Atkins for the sale of a vehicle to her and for her contribution to the FBT liability.

233    In cross-examination, Ms Atkins said that she sent her correspondence to BDO on 9 January 2023 because she had been informed BDO were investigating her at the request of Ms Evans.

234    In her affidavit, Ms Atkins said that Ms Rosas had signed the Contract Extension Letter on 29 June 2020 in her office. She said that the document was provided to her by Ms Keightley. She said that Ms Keightley brought the document into her office when Ms Rosas was there, that Ms Rosas signed it and gave it back to Ms Keightley. She said that the document was then placed in her personnel file in Ms Keightley’s office.

235    Ms Atkins denied that there was any requirement for the Board to approve the extension of her contract. She said that since her initial appointment there had been a series of contract extensions for terms of either three or five years. She said that at no time since 2008 had she been aware of NAAJA specifically voting on and approving any of her contract extensions and that as far as she was aware, the Board had only ever voted on and approved salary increases that were applicable to her.

236    In respect of her salary approval, Ms Atkins said that she did not have access to NAAJA’s records. In cross-examination she denied that she “well knew” there was no resolution approving the extension of her contract. Ms Atkins said that she did not draft the December 2017 Minutes recording an increase in her salary at that time and she could not shed light on them. Ms Atkins said that salaries had been increased on the recommendation of a consultant Ms Megan Lawton.

237    Ms Atkins said that there had been no issues raised about her performance at her performance review interview on 5 October 2022. She said that at the end of the interview Ms Rosas had congratulated her on her work. She said that on 14 October 2022 Ms Rosas had also commended her following a report of a meeting with the Commonwealth Attorney-General, and that on 3 November 2022 Ms Rosas had again commended her for her work on a document relating to Board reforms. The latter two communications are in evidence.

238    In cross-examination, Ms Atkins accepted that in an earlier affidavit she had wrongly stated that her performance review report of October 2022 had been prepared by Ms Rosas, Carol Smith and Mr Brown. She denied that was deliberate. The performance review report is in evidence. On its face it is a document obviously prepared by Ms Atkins.

239    She also asserted that there would have been a resolution of the Board approving the extension of her contract in around May 2022.

240    Ms Atkins was cross-examined about the objective subject matter of her Complaint about Ms Evans. For reasons I will explain later, it is unnecessary to summarise that cross-examination here. Nor is it necessary to summarise evidence on topics such as Ms Atkins’ resistance of payments of directors’ fees to members of the Board.

241    In her affidavit, Ms Atkins set out the asserted factual basis for the concerns she raised in the Complaint about Ms Evans. Again, I do not consider it necessary to explore the detail of that evidence and will explain later why that is so.

242    Ms Atkins said that in early November 2022 she made a telephone call to Carol Smith to discuss her concerns about Ms Evans, and that Carol Smith had suggested that she put her concerns in writing to the Board. She said that at that point she believed Ms Evans had been ignoring the concerns and the situation was getting out of hand. She said that she wanted the intervention and assistance of Ms Rosas, Marilyn Smith and Carol Smith in addressing the conduct referred to in the Complaint. She said that she understood she did not have the authority to take disciplinary action against Ms Evans or to terminate her employment without the approval of the Board, nor did she feel comfortable managing any investigation process because of Ms Evans’ behaviour towards her.

243    Ms Atkins said that she had been informed by Ms Rosas that the First November Meeting would be an in-camera session of the Board. She said that when she arrived at 2.00pm on the first day of the meeting, she saw Ms Evans exiting the in-camera session.

244    Ms Atkins said that she had not been contacted by any director about the matters raised in the Complaint and that as far as she was aware, there had been no investigation into the matters.

245    Ms Atkins agreed that her salary had been mentioned at a Board meeting in June 2022 (June Meeting). She denied that after that time Ms Rosas had repeatedly asked for copies of her contract. She referred to the requests made on 3 and 7 November 2022 and said that she had provided the requested information on 8 November 2022. She denied that Ms Rosas had asked for a copy during a drive from Katherine to Darwin in 2022, or repeatedly after that time.

246    In cross-examination Ms Atkins agreed that she reported matters about Ms Evans set out in the Complaint because she considered Ms Evans posed a number of risks to NAAJA.

247    Ms Atkins said following her telephone discussion with Ms Rosas on 15 November 2022 she had sent an email to her saying that there had been a review of NAAJA salaries and referred to minutes of a Board meeting. The minutes do not appear to be attached to the email, but the email does state that they could be found in Ms Atkins’ office in a folder called “minutes”.

248    On the morning of 16 November 2022 Ms Atkins arranged for NAAJA’s then Principal Legal Officer to make a certified copy of the original of the Contract Extension Letter. The certified copy was annexed to her affidavit and no issue was taken with the authenticity of the copy. Ms Atkins said she was later informed that Ms Rosas had attended NAAJA’s Darwin Offices later on 16 November 2022, that she had taken the Contract Extension Letter from Ms Keightley’s hand and removed it from Ms Keightley’s office.

249    Ms Atkins said that the matters raised in the Allegations Letter dated back to 2014 and yet had never been raised with her after that time. She said she was asked to respond to the allegations even though she did not have access to NAAJA’s records, nor to her laptop.

250    On 29 December 2022 Ms Atkins reported her “grievances and concerns” to the Office of the Independent Commission Against Corruption NT (NT ICAC) including concerns about the payment of fees to NAAJA’s directors.

251    Ms Atkins said that on the basis of the Allegations Letter and the Updated Allegations Letter she believed that NAAJA’s Board would take into account the responses she made to the allegations before making any decision relating to her employment. She continued:

198.    I also believed that NAAJA had not formed a final view about the allegations made against me, as stated by Ms Rosas in the Allegations Letter, or a final view about the action it might take. That is why I responded as I did. I believed and relied upon the statements in the Allegations Letter. By my response, I set out to persuade the NAAJA Board that I could explain the concerns that it had raised and that I had not, as alleged ‘recklessly or wrongfully’ acted in the ways that had been alleged. I did want the opportunity of more time to address some matters. I explained what these were in my response and why. I thought that having done so I would be given that opportunity by the NAAJA Board once I [sic] had considered what I had said.

199.    I didn’t, and don’t, believe that the NAAJA’s Board should lose trust and confidence in me which is why I wanted to take up the opportunities referred to in the Allegations Letter. I was really troubled and upset by the suggestion in the Allegations Letter that one outcome of the Board’s decision making might be to dismiss me and sought to avoid this by the response I gave on 17 February 2023.

252    Ms Atkins said that she was not aware of the January Meeting or any of its outcomes until after this proceeding was commenced.

253    She said that whilst it was her responsibility to update NAAJA’s records with the Australian Securities & Investments Commission (ASIC) (including in relation to the status of directors) it was Ms Rosas who had possession of the login details and it was necessary for Ms Rosas to log in before she could notify changes to the Regulator.

254    Ms Atkins said that Ms Shannon was a member of NAAJA but not a director nor has she been appointed as an alternate.

Mr Sivasubramanian

255    Mr Sivasubramanian is a Senior Accountant employed by NAAJA.

256    He told the Court that BDO had not been engaged to undertake any work for NAAJA prior to January 2023.

257    Mr Sivasubramanian gave evidence about some of the subject matters raised in the Complaint about Ms Evans. He said that he had reported some of those matters to Ms Atkins at a meeting including another employee in September 2022. I will later explain why the detail of what he reported is of little consequence in resolving substantive issues between the parties.

258    Mr Sivasubramanian said that around the third week of November 2022 Ms Evans had sent him an email stating that the Board had requested that she investigate what he had told Ms Atkins in their September meeting. He said that he no longer had a copy of that email and that he did not respond to it. He said that he and the other employee answerable to Ms Evans had been asked by her to reveal what they had said to Ms Atkins. He said that he was later approached again by Ms Evans when he was alone and asked to reveal what Ms Atkins had said about her, and that he had refused to do so. He said that in January 2023 he and the other employee had attempted to raise their concerns about Ms Evans with Mr Brown, but he was not receptive. He said that he has since lodged a workers’ compensation claim and had been unfit for work since March 2023.

259    Mr Sivasubramanian was cross-examined on some of the subject matter raised by Ms Atkins against Ms Evans in the Complaint. This is not a trial of the allegations raised in the Complaint. Accordingly, I do not consider it necessary to summarise the cross-examination.

Ms Marilyn Smith

260    Marilyn Smith was elected as a director in early 2022 for the Central Region. She resigned on 25 January 2023. She said that Ms Rosas and Ms Evans drove from Darwin to Alice Springs together to attend the First November Meeting. She said that she saw them arrive at the meeting together. She said that Ms Evans did not attend the in-camera session of the meeting.

261    In her witness statement Marilyn Smith said that when Ms Rosas provided copies of the Complaint to directors at the First November Meeting she told the Board that she had already given a copy of it to Ms Evans. She said there were then these exchanges:

Me:        ‘But this is confidential. Why did it go to [Ms Evans]? Why didn’t it come to the Board?

Colleen:    It was about [Ms Evans], and she has a right to know

…

Me:        ‘Is [Ms Evans] going to respond to these allegations?’

Colleen:    ‘I am giving her time to respond’ … ‘[b]ecause I’ve given it to [Ms Evans], we have to wait for a response from [her].’

262    Marilyn Smith said that the Board agreed to suspend Ms Atkins’ employment “due to [Ms Rosas’] claim” about the Contract Extension Letter. She said that she voted in favour of the Suspension Resolution because Ms Rosas was adamant that Ms Atkins had used her electronic signature without permission, and she considered that to be a serious matter that needed to be investigated. She recalled that some directors had said that the things Ms Atkins had raised in the Complaint were things she should have dealt with as CEO.

263    Marilyn Smith said that Ms Rosas told the Board that the misuse of her signature had been “investigated gradually over the years”.

264    Marilyn Smith said that about month after the Complaint was tabled, a response prepared by Ms Evans was provided in hard copy at another Board meeting. She disputed evidence of Ms Rosas to the effect that the Board had decided it was comfortable with Ms Evans response. She said the discussion was focussed principally on Ms Rosas’ allegations about the misuse of her signature. She said that the Board decided that Ms Rosas would take up Ms Evans’ response with Ms Atkins. She did not recall ever receiving any update about that while she was a director.

265    Marylin Smith said that during a meeting in December 2022 in Darwin Ms Rosas had raised new claims against Ms Atkins relating to the purchase of staff vehicles and the misuse of credit cards. She said that there was not a lot of detail to the allegations and that she had asked Ms Rosas how those things had come up. She said there was then an exchange to the following effect (at [17]):

Colleen:    ‘It’s all confidential. A staff member has shown me evidence. I can’t show you. I’ll come back to you later.’

Me:        ‘We need to have a look.’

Colleen:    ‘No, no, they told me in confidence.’

Me:        ‘Well, if I don’t see anything, I’m not taking part in it, it’s just hearsay. Someone has told you this or that, but we don’t get to see it, and if you want us to vote on it, I am not doing it.’

Colleen:    ‘I’ll talk to you about this later.’

266    Marilyn Smith said that she was not aware of a meeting between Ms Rosas, Mr Brown and Mr Taziwa referred to in Ms Rosas’ affidavit but said that Mr Taziwa “may” have been at one of the Zoom meetings she attended in December 2022. She said she did not know about the Terms or about the basis for the matters described as the “scope of works”. She said that she had not been made aware of any evidence of wrongdoing by Ms Atkins prior to 3 January, the date of the Terms.

267    Marilyn Smith said that she was not provided an opportunity to attend the January Meeting by Zoom, which was unusual because the Board had been conducting meetings by Zoom since the prior November. She said she did not nominate any alternative or proxy “for approval by the Board or at an annual general meeting”. She said that she resigned from the Board because she believed that certain directors were making decisions without including her and when all other directors should have been included.

268    In cross-examination, Marilyn Smith maintained that she had seen Ms Rosas and Ms Evans arrive together by car to the First November Meeting. She said she believed they had driven together from Darwin because she understood they were going to view a property in Tennant Creek. She maintained her evidence that Ms Rosas had told the Board at the First November Meeting that the Complaint had already been given to Ms Evans. She said that whether the Complaint should be given to Ms Evans was beyond the control of the Board because it had already been given. She agreed that the Board resolved that Ms Evans should be given until 2 December 2022 to respond. She maintained her evidence that Ms Rosas had told the Board that the misuse of her signature had been “gradually investigated” over the years. She insisted that she had heard Ms Rosas allege that Ms Atkins had been using a NAAJA credit card to purchase personal cars for NAAJA staff.

Ms Carol Smith

269    Carol Smith was elected a member of the Board in late 2018 or early 2019 for the Central Region. She resigned on 25 January 2023. In her witness statement, she confirmed that Ms Atkins had spoken to her by telephone about the Complaint before she sent it to Ms Rosas, herself and Marilyn Smith. She confirmed that she had advised Ms Atkins to send a letter to the Board about her concerns.

270    Carol Smith’s account of what occurred at the First November Meeting included the following:

20.    When Colleen gave us hard copies of [Ms Atkins’] email there were some Board members who started saying that the email reflected badly on [Ms Atkins] and that she couldn’t manage her own staff. I remember a comment about this being a diversion from the NAAJA organisational review. I don't recall who said what, except that in paragraph 18 of Rebecca Moore’s affidavit, Rebecca says that another Board director raised an issue about [Ms Atkins’] purchase of a car for her personal use using NAAJA funds and that to the best of Rebecca’s recollection it was Natalie Ellis who raised this. I agree the topic was raised by Natalie on that day, but Colleen had previously raised this. I do not remember when she raised this previously, and I do not recall whether that was during a board discussion, or in a private conversation. Colleen also said that she had heard that [Ms Atkins’] husband had got flagged for drugs and thought that maybe [Ms Atkins] was on them too.

21.    In paragraphs 19 and 20 of her affidavit, Rebecca refers to [Ms Atkins’] complaint and says the Board went through the complaint together and that she formed the view the complaint was about Madhur’s performance and that it was [Ms Atkins’] responsibility as CEO to take disciplinary action against Madhur where that was warranted. I do remember Rebecca saying words to this effect. There was criticism like this, but the criticism was that [Ms Atkins] shouldn’t have made the complaint to the Board, but instead handled things herself.

271    Carol Smith said that when the meeting broke for morning tea, Ms Rosas “took what I would describe as a poll of Board members”. She continued (at [27]):

She asked which of us would continue to serve as Directors of the Board if [Ms Atkins] remained as the CEO. This completely blindsided me. While criticisms of [Ms Atkins] were being made during the in-camera session, the poll that [Ms Rosas] took just before morning tea came out of the blue.

272    Carol Smith said that she abstained from the Suspension Resolution at the Second November Meeting because she didn’t consider there was sufficient evidence to give rise to a concern about the signature issue. She considered Ms Rosas had memory problems including because she had not remembered participating in Ms Atkins performance review. She said of the Second November Meeting (at [30]):

When someone, I don’t recall who, pressed [Ms Rosas] about the report from Greg Ward her response was that it must have been [Ms Keightley] who put her signature on [Ms Atkins’] contract. It was just allegations. No evidence was presented. Other allegations started to come up too. There was an allegation that [Ms Atkins] had used her credit card to buy the male NAAJA directors shirts. I don’t recall now who raised this, but I recall male directors saying that [Ms Atkins] hadn’t bought them any clothes. Again, just allegations. Other allegations were being made too. By then, we knew about a worker's compensation claim from [Ms Atkins].

273    Carol Smith disputed evidence of Ms Rosas to the effect that the Board had considered a copy of Ms Evans’ response to the Complaint at a Board meeting and that it had decided that the issues raised in the Complaint were management issues and that the Board was comfortable with the response. She said “that didn’t happen at any Board meeting at which I was present after 27 November 2022”.

274    Carol Smith referred to Ms Rosas evidence concerning a meeting she had with Mr Taziwa. She said that she was not aware that that meeting had occurred until she read Ms Rosas’ affidavit. She said that she had been introduced to Mr Taziwa at a Zoom meeting “at which only some of us were present just before Christmas”. Her recollection was that the issue discussed related to the alleged use of a credit card to buy shirts for male directors. She said she had no other involvement in providing information to Mr Taziwa, that she was not aware that Ms Garlett, Ms Ellis and Ms Moore had signed the Terms. She said she had not been asked to approve the Terms and she hadn’t seen the document until the time she prepared her witness statement.

275    Carol Smith said that when she received an email giving notice on 4 January of the January Meeting, she did not understand the issues referred to in it. She said that she did not have specific knowledge of what the “draft investigation report” or “NAAJA constitution items” would be addressing. Carol Smith’s response to the email relating to the appointment of alternates is in evidence. She described the effect of the communications as follows (at [37]):

…  The response from me was that I would be happy for her to try any of the other members. I meant members of the Central Australian or Southern Region. I thought she could ask if there was another member who would be available. However, I heard nothing more from her after that email. I wasn’t asked to endorse any member that she might have found. I subsequently learnt that Joyce Taylor and Hugh Woodbury had been asked to attend the meeting. But I didn’t know about that until after the meeting had occurred. [Ms Rosas] didn't ask me to nominate them or sign a document nominating them.

276    Carol Smith said that she resigned as a Board member because she felt that Ms Rosas was not including her and Marilyn Smith in some decisions that were being made by some directors relating to Ms Atkins and because Ms Rosas had accused her of leaking information (an allegation she denied).

277    Carol Smith maintained her evidence in cross-examination, denying assertions that some events did not occur.

Ms Dunn and Ms Barter

278    Ms Nicole Dunn and Ms Kate Barter are lawyers employed by Nicole Dunn Lawyers, Ms Atkins’ lawyers. Their affidavits largely went to procedural matters, exhibited correspondence passing between the parties’ lawyers or evidenced events that have been included in the chronology. Neither was cross-examined.

Mr Espie

279    In his affidavit, Mr Espie said that he had been forwarded the Complaint by Ms Rosas. He said that occurred “the same day as the email was sent or a day or so afterwards”. As to the February Meeting, he said (at [25]):

On 20 February 2023, I attended a meeting with NAAJA’s external solicitors, King & Wood Mallesons (KWM), in my capacity as PLO. At this meeting, the Board members present instructed Murray Kellock of KWM to prepare a letter of termination of [Ms Akins’] employment. Based on my attendance at the meeting, I observed that the Board members present seemed to hold a unanimous view, based on their review of the BDO report, that [Ms Akins] had committed fraud, that is, had stolen NAAJA money. To the best of my recollection, there was also some discussion to the effect that [Ms Akins] was an ineffective supervisor, and that [Ms Akins] had lied about a number of things, including the creation of a Deputy PLO position. I do not recall anyone speaking against issuing a letter of termination.

280    The remaining witnesses were called as part of NAAJA’s case.

Ms Moore

281    Ms Moore was appointed to the Board in February 2020 for the Southern Region.

282    Ms Moore said that at the June Meeting Ms Rosas had asked Ms Atkins to provide a copy of her contract to the Board. She said that on 19 October 2022 Ms Rosas had forwarded to her Ms Keightley’s email attaching documents which included the Contract Extension Letter.

283    Ms Moore said that she attended the First November Meeting when the Complaint was tabled. She said that at that meeting another Board member (she believed, Ms Ellis) had raised an issue about Ms Atkins purchasing a car using NAAJA funds. She said there was a brief discussion about that but no course of action was decided. As to the content of the Complaint, she said (at [20]):

The Board went through the Complaint together. I formed the view that the issues raised in the Complaint were about Madhur’s performance and that it was [Ms Atkins’] responsibility, as CEO, to take disciplinary action against Madhur where it was warranted. Some of the matters I thought were things that you wouldn’t really complain about. Some of the things raised were petty.

284    Ms Moore said that the Board decided that Ms Evans “had to be given natural justice” and that she should be given a fortnight to respond to the allegations in the Complaint. She said that Ms Evans did not attend the in-camera session of the First November Meeting.

285    She said that she voted favour of the Suspension Resolution at the Second November Meeting so that the Board “could put in place a transparent investigation in the Contract Extension Letter, which was not subject to interference from [Ms Atkins] or [Ms Keightley].” She denied voting in favour of the suspension because of the Complaint.

286    Said that “[a]t a Board meeting held in December 2022, the Board agreed to have BDO investigate a number of issues” relating to the use of Ms Rosas’ signature, the purchase of vehicles and Ms Atkins’ use of her NAAJA credit card. She said (at [28]):

I was in favour of having BDO look into these issues because I thought these were things that should be investigated to find out if there was something going on that shouldn’t have been going on. I didn’t vote in favour of having BDO look into these issues because of the Complaint.

287    She said she did not “vote in favour” of BDO looking into the issues because of the Complaint.

288    Ms Moore said that at the January Meeting Mr Taziwa provided the Board with a “draft report” and that he went through it with the directors. She referred to the four resolutions made at that meeting and said (at [36]):

I voted in favour of [Ms Atkins’] employment being terminated because of what I considered to be the fraudulent activity she was engaging in that was described in [Mr Taziwa’s] draft report. I have been involved in Aboriginal affairs for a long time and in my view, the worst of the worst conduct is when our own people rip us off.

289    Ms Moore went on to say that she also had concerns about how Ms Atkins was performing in her role “in terms of Board governance”, referring to the way in which Board meetings were arranged and the absence of a scribe. She raised other performance related issues unconnected to the Complaint, such as a lack of NAAJA lawyers at Tennant Creek. Ms Moore said that she abstained from the resolution requiring that Ms Atkins’ termination occur after consultation with the Attorneys-General because she thought that process would take too long and she wanted the termination to be effective immediately.

290    Ms Moore said that she was “part of a decision by NAAJA” to send the Allegations Letter to Ms Atkins. She said that she wanted to send the letter “following NAAJA receiving legal advice” and that her decision to send the letter was not because Ms Atkins had made the Complaint. She said she was “part of a decision by NAAJA” to send the Updated Allegations Letter by which Ms Atkins’ request for more time to respond to allegations was refused, and that she made that decision because she felt that Ms Atkins was “just buying time”. She denied making that decision because of the Complaint.

291    Ms Moore said that she “saw” a response NAAJA received from Ms Atkins. She did not state when that occurred, nor that she had read it, nor what she thought of it. In additional evidence-in-chief she confirmed that she received the response in an email forwarded by Ms Rosas (but did not say that she had read it) and that she attended the February Meeting.

292    Ms Moore said that she was also “part of a decision by NAAJA” to send the Termination Letter. She said that she knew at that time that Ms Atkins had threatened to sue NAAJA, but she did not decide to send the Termination Letter because of those threats. She said she wanted to send the Termination Letter “for all the reasons I voted in favour of the resolutions to terminate [Ms Atkins’] employment at the January Board meeting” and that at the time of that decision she was aware that this proceeding had in fact been commenced.

293    As to the Complaint, Ms Moore said that it was her view that it was “dealing with performance issues that [Ms Atkins] should have brought up directly with [Ms Evans], without Board involvement”. She said that she had read Ms Evans’ response to the Complaint and that the Board had decided that it was not necessary to take any action. She could not recall when that was decided but thought it might have been in a Board meeting in December 2022.

294    Ms Moore was cross-examined on her role in having a letter sent to Ms Atkins threatening defamation proceedings. That topic is of little consequence to the substantive issues to be tried.

295    Ms Moore denied that when the Complaint was tabled at the First November meeting Ms Rosas said it had already been provided to Ms Evans.

296    She denied that Ms Atkins’ threat of legal proceedings operated on her mind when joining in the decision to send the Termination Letter.

297    Ms Moore stood by her assertion that Ms Atkins had been asked by Ms Rosas to provide the Contract Extension Letter at the June Meeting. She could not explain the inconsistency between that evidence and Ms Rosas evidence on the same topic.

298    Ms Moore said that the only allegation made about Ms Atkins at the First November Meeting related to her purchase of a car for personal use.

299    She said that the Board discussed the Complaint and “decided under natural justice that Ms Evans should be given the opportunity to respond to the allegations”. She acknowledged that some of the allegations made against Ms Evans were serious but said she did not think they were worthy of investigation because “under natural justice” Ms Evans should be given an opportunity to explain them. She said that Ms Rosas told the Board that other allegations concerning Ms Evans’ approval of her travel allowance were not correct and she believed Ms Rosas.

300    When asked whether she didn’t think as a matter of “natural justice” Ms Atkins should be afforded an opportunity to comment on the matter raised in the Terms she had signed, Ms Moore responded that Ms Atkins was given an opportunity to respond by way of the Allegations Letter. She agreed she had asked BDO to investigate without putting any of the matters raised in the Terms beforehand to Ms Atkins.

301    Ms Moore was asked about an aspect of the Complaint concerning the purchase of a large amount of IT equipment that could not be accounted for, and unanswered requests for their production. She said:

I would have believed that the CEO’s role is to be responsible for organisational issues within the organisation. Ms Evans and Mr Ward were Ms Atkins’ subordinates, so she should have taken action against them. And it’s not up to the board. The board has a strategic role.

302    Ms Moore went on to say that she believed it was the CEO’s role to deal with it. She said:

It’s not a board issue. That’s why you have a CEO and that’s their role and responsibility, is to be responsible for the organisational performance of the company.

303    She later added that the CEO of a large organisation should know where the IT equipment was.

304    Ms Moore repeated several times that it was not the role of the Board to take disciplinary action against Ms Evans and that it was Ms Atkins’ role to do that where it was warranted. She agreed that she considered Ms Atkins had done the wrong thing by raising some matters that she considered to be “petty”. She later denied saying that Ms Atkins had done the wrong thing by making the Complaint.

305    Ms Moore denied that Ms Evans and Ms Atkins were given differential treatment by reason of Ms Evans being provided with an opportunity to respond to the Complaint but Ms Atkins not being given an opportunity to respond to allegations that formed a part of the Terms. She said there was no differential treatment because the former process involved a complaint whereas the BDO process was in the nature of an investigation. She agreed that she did not have any material in writing pointing to there being anything untoward in relation to some topics mentioned in her affidavit. She agreed that the exercise with BDO was “looking to see whether there would be material that supported each of the allegations”.

306    Ms Moore accepted that she had read the Ward IT Report and knew that the signature on the Contract Extension Letter was not explained by the use of either of the only two electronic signatures for Ms Rosas in NAAJA’s IT systems. She insisted that the signature on the Contract Extension Letter did not look like a signature that appeared on Ms Rosa’s “personal cards”. Said at that at the time of the Suspension Resolution she did not believe the signature was Ms Rosas. She could not say why she did not disclose that personal belief in her affidavit.

307    Ms Moore said that Ms Atkins had been provided with the opportunity to respond to allegations about the misuse of Ms Rosas signature, but later said that she was not sure whether the opportunity to respond related to that issue.

308    Ms Moore said that she had no involvement in developing or drafting the Terms she had signed. She said that she was given the document to sign if she agreed with it. She agreed that a central feature of the Terms was the requirement that BDO identify whether there had been intentional and unethical practice. There was then the following exchange:

Can you tell the court how you – how BDO was to go about identifying whether Ms Atkins had intentionally breached any of NAAJA’s policies if the allegations hadn’t been put to her?---Can I just have a look up on the priorities? No – yes. Yes. So, sorry, what was the question again?

HER HONOUR:    The question was how was BDO to identify whether Ms Atkins had intentionally breached or, if the allegations – if the allegations hadn’t been put to her?---Because the – might – because the investigation would identify – if it was unintentional, then there would be no further thing, but if there was intentional stuff that was found, then it would be put to Ms Atkins.

MR HARDING:    But my question to you is how is BDO to establish whether Ms Atkins had intentionally breached if the allegations had not been put to her?---Because they would have done a review of the documents that was held in the office.

And how do you – how do you say that would establish her intention?---It wouldn’t have, but then it would - - -

No?---But then it would have given the – given us, as a board, to go back to Ms Atkins and ask why this happened – to put the allegations to her.

So is the – your reasoning here that BDO would discover the intention of Ms Atkins from a document?---Yes.

And if – and your – as a signatory to these terms of reference, you’ve asked BDO to identify if they were intentional or unintentional. How did you – how did you expect BDO to identify either of those things?---I’m not real sure.

You don’t know?---I’m not real sure.

You don’t know?---I’m not real sure. That’s my answer.

309    Ms Moore confirmed that she was convinced by the BDO Report that there was fraud. She said that the “fraudulent activity” she relied on at the January Meeting included the BDO Report’s conclusion that a NAAJA credit card had been used for vehicle expenses. She acknowledged that she had no evidence to contradict Ms Atkins’ evidence that the expenses were incurred in relation to NAAJA vehicles. She acknowledged that she did not ask that question of Mr Taziwa. She agreed that she had “just assumed” that the expenses were used in connection with Ms Atkins’ personal vehicle. She said that the BDO Report was presented to her as evidence of deliberate wrongdoing, and that she was persuaded by the fact that Mr Taziwa worked as an auditor for BDO to conclude that the Report contained factual findings.

310    Ms Moore said that she based her decision “on the evidence that was at hand”. When it was put to her that the evidence did not include the voice of Ms Atkins, she said “exactly”. She otherwise disclosed some appreciation of the absence of any opportunity given to Ms Atkins:

And you were so keen to have her out of the organisation that you voted for a termination resolution at the meeting, although you hadn’t put any of these things to Ms Atkins?---I based my decision on the evidence that was at hand.

Evidence that did not include the voice of Ms Atkins?---Exactly.

311    Ms Moore accepted that the assertion in the Allegations Letter that NAAJA had not yet formed a view as to Ms Atkins’ ongoing employment was entirely inconsistent with the Termination Resolution. She accepted that the Allegations Letter represented that the Board would consider the response and that the Board would then consider whether she would “still have a job” after her response.

312    She confirmed that she attended the February Meeting even though her name is not recorded as an attendee and she is not noted as a speaker in any written record. She said she was aware that the meeting had been arranged by NAAJA’s lawyers to consider whether to dismiss Ms Atkins. She said this of that meeting:

Now, you’ve just given some evidence in answer to a question from me that the consideration referred to in the 19 January allegations letter was consideration – was the consideration of the board. Now, as a director, did you not think it sensible to say, ‘Let’s defer this meeting until we can get a meeting of the board together’?---No, because Colleen Rosas, Natalie and myself are an executive of the board.

And you believed you had authority to make the decision yourselves?---Well, we didn’t make the decision. The decision was made on 12 and 13 January. We just enacted it.

313    Ms Moore claimed to be naïve about the legal process of an injunction restraining NAAJA from dismissing Ms Atkins. She said that she relied on legal advice and that “[a]ll I was wanting to do was get the letter sent”. She denied that she wanted the Termination Letter sent that day to make the interlocutory application “disappear”.

314    In re-examination Ms Moore elaborated on her assertion that she had seen Ms Rosas’ signature on personal cards which did not resemble the signature on the Contract Extension Letter. She said that she viewed those cards in early December 2022.

Ms Rosas

315    In relation to the Contract Extension Letter, Ms Rosas said “I have no recollection of signing that document and I don’t believe that I did so”. She said that the Contract Extension Letter “purported” to extend Ms Atkins’ salary for a period of five years which required the approval of the Board. She said she had not been part of any Board meeting that had passed a resolution to extend the contract to 2025.

316    She referred to a document that “purports” to be the December 2017 Minutes which record her presence and a resolution to approve Ms Atkins’ salary increase. She said that she may well have attended a Board meeting at that time but had “no recollection of this resolution”.

317    Ms Rosas said that she “emailed all the Board of Directors and sent them a copy of the Contract Extension [Letter] and suggested we discuss the document at the next Board meeting”. The email included a reference not solely to Ms Atkins’ contract but also to the contracts of two other senior managerial staff. It is the same email referred to earlier in these reasons, sent after Ms Rosas asked Ms Keightley for copies of the contracts for the purpose of meeting with “the consultants”.

318    Ms Rosas said that in around late November 2022 “the NAAJA Board” had engaged BDO to conduct “an independent special audit”. She said (at [53]):

More specifically, BDO was engaged to review, analyse and report back to the NAAJA Board on any irregular or inappropriate actions within specified areas of the CEO’s role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023.

319    In her second affidavit she said this of the engagement of BDO (at [85]):

In late 2022, [Mr Brown] and I met with [Mr Taziwa], Partner, Audit & Assurance, BDO Australia Ltd (BDO), an independent auditing body. This led to the Board engaging BDO to conduct an independent special audit in respect of [Ms Atkins’] conduct as CEO. More specifically, BDO was engaged to review, analyse and report back to the Board on any irregular or inappropriate actions within specified areas of the CEO’s role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023 (BDO Audit). Now produced and shown to me marked ‘CJR-15’ is a copy of the Terms of Reference of the BDO Audit signed by various directors in early January 2023.

320    In her second affidavit, Ms Rosas alleged that at the June Meeting she had learned of Ms Atkins’ salary in the context of a request then being made for a number of senior managerial staff to be given pay increases because of the newly introduced auspice arrangements. She said that she was “horrified” to learn of Ms Atkins’ salary. She said that the salary seemed “much higher to me than I remembered” and that she had “no memory of any involvement in its approval”. She said that she decided to ask Ms Atkins for a copy of her contract of employment because she was troubled by the level of her remuneration. She said that she asked Ms Atkins to provide a copy of the contract after the June Meeting when they were travelling together from Katherine to Darwin. She said that she told Ms Atkins that “the Board” needed to see the contract, and that Ms Atkins had assured her it would be provided. Ms Rosas alleged that in the months that followed she repeatedly asked Ms Atkins “in conversation” to provide a copy of the contract, but by October Ms Atkins had still not provided it, despite assurances she would do so. Ms Rosas said that she requested a copy of the Contract Extension Letter from Ms Keightley on 18 October 2022 and received a copy of it (together with the contracts of other staff members) on the following day. She said that she was not a party to a discussion of directors about an extension of Ms Atkins’ employment to 2025, nor had she been part of a Board resolution to extend the contract to that time.

321    Ms Rosas said that when she received the Complaint she was “dumfounded and surprised”. She said that she had observed a friendly relationship between Ms Atkins and Ms Evans. She said “I also didn’t think the Complaint should have come to the Board. It was a performance management issue and [Ms Atkins] should have had the skills to deal with it herself”.

322    Ms Rosas said that in the in-camera session at the First November Meeting she raised the matter of Ms Atkins’ salary and her belief that she had not signed the Contract Extension Letter. She did not elaborate on any discussion that followed. Ms Rosas said that she also raised the issue of the Complaint with the Board. She said only that the Board discussed it and agreed to notify Ms Evans of the matter “and to give her an opportunity to respond in keeping with natural justice”. She referred to Ms Garlett being tasked to investigate the signature issue through Mr Ward, and said “I was not involved in these investigations to avoid any suggestion of a conflict of interest”. She referred to the Ward IT Report sent to Ms Garlett on 14 November but did not specify when she received a copy.

323    Ms Rosas referred to the telephone discussions she had with Ms Atkins 15 November 2022, described earlier in these reasons. She said that Ms Atkins was “yelling and swearing at me and gave me the impression of being hysterical”.

324    Ms Rosas referred to the Suspension Resolution. She said that wanted Ms Atkins to be suspended “because we couldn’t do any investigation until she was out of the office”. She said that the Board was adamant that it needed answers and for the signature issue to be investigated straight away. She said that the Complaint “had absolutely nothing to do with why I voted in favour” of the Suspension Resolution.

325    Ms Rosas said that she received Ms Evans’ response to the matters raised in the Complaint on 27 November and that she provided hard copies of the response to directors “at a subsequent Board meeting”. She said that the Board discussed the response at the subsequent meeting and that the Board “decided the issues raised in the Complaint were management issues and we were comfortable with [Ms Evans’] response”.

326    In her second affidavit, Ms Rosas’ evidence concerning the engagement of BDO was expressed as follows:

85    In late 2022, Phil and I met with [Mr Taziwa], Partner, Audit & Assurance, BDO Australia Ltd (BDO), an independent auditing body. This led to the Board engaging BDO to conduct an independent special audit in respect of [Ms Atkins’] conduct as CEO. More specifically, BDO was engaged to review, analyse and report back to the Board on any irregular or inappropriate actions within specified areas of the CEO’s role, responsibilities and accountabilities in corporate governance of the organisation over the period January 2017 to January 2023 (BDO Audit). Now produced and shown to me marked ‘CJR-15’ is a copy of the Terms of Reference of the BDO Audit signed by various directors in early January 2023.

86    … Madhur initially recommended BDO to the Board. I also made my own inquiries about BDO to satisfy myself that it would meet NAAJA’s requirements for independence.

327    Ms Rosas did not explain the context in which Ms Evans had an opportunity to recommend BDO “to the Board”. She did not disclose who drafted the Terms. Nor did she make any reference to having been provided with Ms Atkins’ correspondence to BDO before the January Meeting. Nor did she assert that she had provided copies of that correspondence to directors. She referred to having chaired the January Meeting but did not explain the circumstances in which the meeting was called or refer to lawyers’ correspondence regarding its timing.

328    Ms Rosas gave the following reason for joining in the Termination Resolution (at [99]):

The findings in the KPMG Review Report and the BDO January Report of the audit process caused me to lose confidence in [Ms Atkins’] performance in the role of CEO and her ability to competently lead the organisation. This is way [sic] I voted in favour of the resolutions regarding her termination of employment. My vote had nothing to do with the Complaint, or with [Ms Atkins] threatening to sue NAAJA.

329    She said that she voted in favour of first informing the Attorneys-General before putting the Termination Resolution into effect as a matter of courtesy to the Attorneys-General whose Departments were responsible for NAAJA’s funding. She said that she reported the BDO findings to the Attorneys-General at a meeting on 15 January 2023.

330    Ms Rosas said that she sent the Allegations Letter to Ms Atkins “on behalf of NAAJA” providing Ms Akins an opportunity to respond to allegations “about her misconduct as CEO as evidenced in the [BDO Report].”. She said that had been done after consulting with “other Board Directors (and NAAJA’s lawyers)”. She did not identify which other directors were consulted.

331    Ms Rosas said that on 2 February 2023, BDO provided NAAJA with an updated and final report. She did not say that that report was ever provided to the Board.

332    Ms Rosas said that she gave instructions to NAAJA’s lawyers to send the Updated Allegations Letter after consulting with “other Board Directors”. She does not identify the other directors she consulted. She said that she refused to agree to provide Ms Atkins with any more time to respond (at [107]):

… because I thought [Ms Atkins] had enough time to answer the allegations and I didn’t want the process to be drawn out. It had nothing to do with the Complaint or [Ms Atkins] threatening to sue NAAJA.

333    A similar reason was given for a further refusal to grant a further request of Ms Atkins’ for more time to respond. Ms Rosas said that she read Ms Atkins’ letter of 17 February 2023 responding to the allegations in the Updated Allegations Letter. She said (at [110]):

…  As far as I was concerned, there wasn’t enough in [Ms Atkins’] response to justify the Board changing its course.

334    Ms Rosas gave the following reasons for deciding to send the Termination Letter to Ms Atkins (at [112]):

At the time that I provided NAAJA’s lawyers with instructions to prepare the Termination Letter, I knew that [Ms Atkins] had threatened to take NAAJA to Court but I was not aware that this proceeding (Proceeding) had been filed in the Federal Court of Australia. I deny any allegation that I instructed NAAJA’s lawyers to prepare and then send the Termination Letter because [Ms Atkins] had either threatened to bring these legal proceedings or had filed the Proceeding. My reason for wanting to send the Termination Letter was because of the information we had from BDO and the fact the relationship between [Ms Atkins] and the Board had totally broken down by this point. The organisation needed to move on after all the disruption [Ms Atkins] had caused.

335    The latter part of the evidence is subject to an agreement that it be used only to evidence Ms Rosa’s subjective opinion.

336    Ms Rosas’ affidavits contain no mention of the email sent to her by Ms Evans on 11 November 2022 asking (among other things) what guarantee she had that Ms Atkins would not sack her.

337    In cross-examination Ms Rosas acknowledged that the issue of management salaries came up in June 2022 because the workload of NAAJA had increased significantly with the auspice arrangements.

338    Ms Rosas denied that she had been part of the decision recorded in the December 2017 Minutes to approve an increase in Ms Atkins’ salary at that time, although she acknowledged attending the meeting. She said that the minutes “have been changed seven times in four months” and that she had no confidence that they were a true and correct record of the meeting she attended. Ms Rosas said she was aware of an IT report showing the minutes had been changed. However, she also acknowledged that she may have forgotten discussions at that meeting in which salaries were disclosed and pay increases approved. Notwithstanding that acknowledgment she maintained her assertion that the minutes had somehow been altered, that they could have been altered by the person who prepared the minutes, and that the person who prepared them was Ms Atkins.

339    Ms Rosas said that she asked Ms Atkins for a copy of her contract in the course of the June Meeting. That does not accord with her affidavit evidence to the effect that she asked for the contract on the drive back from Katherine to Darwin.

340    Ms Rosas volunteered that she requested copies of contracts of three employees from Ms Keightley because she did not “want to seem to be focussed” on Ms Atkins. She volunteered that she had asked Ms Atkins “several times over a period of time for the contract, and she suggests [Ms Keightley] would get the contract to me”.

341    When reminded that she had said in her email that she sought the contracts because she wanted to see them before meeting with consultants she said “that was an absolute mistake”. She said that she wanted to see the contracts before the Board meeting.