ACT Fair Trading boss Derise Cubin’s conflict of interest form rating overruled after she took over from her de facto
After a senior bureaucrat discovered an Aussie businesswoman was suing her and her partner, she filled out a conflict of interest form. Then an unexpected twist occurred.
Exclusive: After a senior Canberra bureaucrat discovered a business figure was suing her and her partner over a long-running investigation, she filled out a new conflict of interest form and rated the risk to the government department as low — but her superior disagreed.
A document showing the overruling is contained in published findings by the ACT Integrity Commission that examine a corruption report against the territory’s Fair Trading boss Derise Cubin, who succeeded her partner David Snowden as head of the consumer protection agency.
The corruption report was made by Louise Curtis following a Fair Trading probe of her business Pink Frosting. The findings show Ms Curtis has been pursuing millions of dollars in taxpayer-funded compensation from the ACT government.
From 2018, Mr Snowden oversaw the two-year investigation into complaints from the ACT and interstate against Pink Frosting, which sold party supplies nationally. He was also responsible for media statements about the investigation.
According to the findings of the ACT Integrity Commissioner Michael Adams, which were presented to the territory’s parliament, the ACT Government Solicitor’s Office (GSO) sent a letter to Ms Curtis’s lawyers in August 2020 advising the Fair Trading “Commissioner had concluded his investigation and had formed the view that, if litigated, a court would likely find that the alleged breaches” of Australian Consumer Law (ACL) had occurred.
But to avoid litigation costs, the Commissioner was willing to accept a court enforceable undertaking, “including an admission that Pink Frosting had likely contravened the ACL”.
Ms Curtis’ lawyers responded that Pink Frosting had been sold and was non-operational and that she would not be signing an enforceable undertaking.
Mr Adams noted that in September 2020, The Telegraph published an article “to the effect that the Commissioner had found Mrs Curtis and Pink Frosting had likely broken the ACL.”
The day the story appeared, Ms Curtis wrote to the responsible minister complaining about communications with the media, disputing the number of alleged complaints, claiming damage and seeking to discuss redress.
In May 2021, Ms Curtis’ company 86 Candles “claimed $1,540,910 for loss and damage caused by Access Canberra and the Commissioner as a consequence of their handling of the investigation.”
Ms Curtis claimed $800,000 for economic loss and $200,000 for general damages.
Several months before the claim was received, Mr Snowden retired and Ms Cubin was appointed Fair Trading Commissioner.
Ms Curtis and Ms Cubin were both invited to attend a July 2021 meeting about the damages claim.
At the time, Ms Curtis did not know that Ms Cubin was Mr Snowden’s partner.
In November, Ms Curtis lodged a civil dispute application in the ACT Civil and Administrative Tribunal, naming Ms Cubin and Mr Snowden as respondents.
That application was dismissed without being litigated but it led Ms Cubin to make arrangements to remove herself from any involvement in the legal action. She also filled out a new conflict of interest form.
In the disclosure, Ms Cubin rated the conflict as “low” risk. But a superior changed that to “medium”.
In her evidence, Ms Cubin said she rated it low because she had “already stepped out of being involved”. She said her superior changed it because of the “context of the timing.”
In the form, Ms Cubin said there was no actual conflict and that she had no bias for or against Ms Curtis or 86 Candles.
An initial conflict of interest form had first been lodged by Mr Snowden and Ms Cubin in the middle of 2018. It declared their de facto relationship. A management plan was put in place so that she did not report to him.
According to Mr Adams, in 2023 the GSO concluded Ms Cubin’s attendance at the July 2021 meeting with Ms Curtis was “uncontroversial”.
Mr Adams said in his findings that “Ms Cubin’s ultimate position as given in her evidence … was that she did not feel there was an issue with any perceived or other type of conflict because Mr Snowden was her predecessor and had retired from the public service, Ms Cubin and Mr Snowden had disclosed their relationship in 2018, years before the events subject of this investigation … and she did not take on a role in respect of the decisions made with regard to 86 Candles Pty Ltd, Pink Frosting or (Ms) Curtis.”
The integrity commissioner noted that it was not unreasonable for Ms Curtis – when she discovered the de facto relationship – to perceive that Ms Cubin was or may have been conflicted.
Mr Adams said the relationship should have been disclosed at the start of the July 2021 meeting but “the omission could by no means amount even to a suspicion of corrupt conduct.”
Mr Adams noted in his findings that Ms Curtis ultimately commenced action against the Fair Trading Commissioner in the ACT Supreme Court, seeking compensation. He said the claim was dismissed earlier this year.
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Originally published as ACT Fair Trading boss Derise Cubin’s conflict of interest form rating overruled after she took over from her de facto
