In the Federal Court Justice Tracey has found against Kathy Jackson, ordering her to pay the Health Services Union approximately $1.4 million before any interest and costs.
Jackson went bankrupt and did not defend the matter once her application to have the proceedings stayed on the basis that union documents she claimed would exculpate her were lost was rejected by the court. Nor did her bankruptcy trustee elect to defend the proceedings.
I have written before about what happens when a defendant throws in the towel and the court only hears from one side. The result was pretty much a foregone conclusion subject to the union making good its claim as a matter of proof. As it happened, the union did not quite make good its claim in full.
Age “Investigative Reporter” Ben Schneiders has published a piece, described as “Analysis” under the headline Kathy Jackson exposed as a thief, liar and hypocrite. Journalists are not always responsible for headlines but in this case that is pretty much the substance of the opening paragraph.
Schneiders goes on to say (emphasis added and with a few snips):
The judgment by Richard Tracey is largely symbolic as Jackson, in her latest move to avoid justice, declared bankruptcy just before her civil trial was to begin in July…
Jackson may not have to pay back the money she has stolen but it is far from over for her.
A joint Victoria and Federal Police taskforce, connected to the royal commission into union corruption, is probing Jackson for widespread fraud and theft. They will be watching Justice Tracey’s decision closely.
The taskforce’s inquiries have been extensive and it has been keenly interested in a $250,000 payment from the Peter MacCallum cancer hospital to Jackson’s old union in 2003.
They want to know if that payment was a bribe to help settle a back-dispute and what she did with all the money from the hospital.
While civil trials have a lower burden of proof than criminal inquiries, there has to be a real chance now that one day Jackson will join her old HSU comrade Michael Williamson behind bars.
I’m not particularly a fan of Ms Jackson, especially after her “charity shag” comment at the time of her unsuccessful attempt to prevent long-ago-fling Mark Irving from cross-examining her at the trade union royal commission, but nor does this article impress me particularly as an example of either analysis or investigative journalism.
Whether or not police have been or “will be” watching Justice Tracey’s judgment closely (is this a fact or journalistic speculation?), I can’t see how the judgment, rather than any evidence which the HSU has assembled and now saved the police from assembling for themselves if they had not done so already, will make much if any difference to the prospects of prosecuting Ms Jackson.
Journalism like this, on the other hand, could be distinctly unhelpful.
My cursory reading of the judgment reveals that the cause of action on which the union succeeded was not one which depended on Ms Jackson’s subjective beliefs or honesty. As Ms Jackson neither defended the action (what seems to have occurred is a half-way house where the judge dealt with her pleaded defence even though she did not participate in the trial) nor gave evidence (she presumably served and maybe even filed some evidence but there was no one there to adduce it on her behalf and she wasn’t there to be cross-examined on it), I would have thought this makes “thief” “stolen” and “liar” problematic.
In any event a large part of the award against her was not for money she took. $411,635.86 of the compensation Ms Jackson has been ordered to repay has been in respect of loss to the union as a result of a deal with one Robert Elliott that Ms Jackson was held to have improperly authorised together with the since-gaoled Mr Williamson to secure Elliott’s co-operation in the merger of three unions in 2010 (see  to  of the judgment: Elliott said he would block the merger unless he was looked after and so he was. I don’t think this can really be described as money stolen by Ms Jackson. Some of it includes money that the union’s predecessor paid to Mr Elliott to settle a claim brought by him for performance of the agreement after the union stopped paying him under it.
You have to be careful before saying that going bankrupt is a “move to avoid justice.”
It is true that by going bankrupt and not participating in the trial Ms Jackson did sidestep any attempt to justify the large amounts of money she received or spent or to be cross-examined on her justifications for her actions. That could be strategically prudent given that any damaging cross-examination could be used against her if ever there were a subsequent criminal trial.
It is obviously most unlikely that Jackson will ever pay any amount ordered by the court or that even her trustee will pay anything like the full amount. Bankruptcy is part of the law so I don’t see that you can call going bankrupt avoiding justice.
It is reasonably clear that Jackson has for some time been financially supported by her de facto partner, Michael Lawler and it seems likely that any recovery from her estate is going to depend on whether the support Lawler has provided and their financial affairs justified various transactions entered before Jackson declared bankruptcy or his claims to be a participating creditor in her bankruptcy. Lawler, Deputy President of the Fair Work Commission, has himself been somewhat besieged by The Australian (though not, as far as I can see, the non-Murdoch press). This appears to be on account of his involvement with Jackson. Other matters have been brought into the mix to do with Lawler’s involvement in the affairs of David Rofe QC, a former colleague of Lawler’s who, unmarried and childless, has entered into a sad decline complicated by his considerable wealth and an unusual relationship with a considerably younger man (reportedly ensconced with his partner and dachsunds in a property belonging to Mr Rofe). Kathy Jackson is involved in that too as a reported beneficiary under a will made by Mr Rofe but it all seems irrelevant to the main story.
As for “a real chance” that a person will end up “behind bars,” even if “real chance” is sufficiently weaselish to skirt defamation risks, what kind of analysis is that? Close to clickbait, really -and I’ve taken it!
If there are lost documents which could be relevant to Ms Jackson’s defence, that could well be relevant all over again to any application for a stay of any prosecution, as well as any defence based on reasonable doubt.