Roast Misleading and Deceptive representations / conduct by Koch breaches his fiduciary duty and has implications for all other board members

[RussellEbertHandball]

Several times in his speeches at Alberton, at pre match functions and in Hong Kong and China, David Koch has stated he is just a professional bullshiter. Well David your bullshit will cost you, your club and your fellow directors.

If we still had an August members info night or the AGM was close I would take the microphone and ask/say - David, several times during your presidency / chairmanship you have stated in public forums that you are a professional bullshiter. I would like to spend the next 20 minutes discussing that bullshit and the bullshit you have imposed on our club.

I am better informed on the old Trade Practices Act Section 52 about Misleading or Deceptive Conduct and and Section 53 ( and amendments to Sect 53A and 53B) False or Misleading Representations, but these sections have been rolled over into the Australian Consumer Law and are a bit more complicated to find and are a bit wider in coverage and you have to dig around to find the relevant legislation. Below is how you find the (new) Section 18 ( and 19 and 20) post the 2010 amendments and introduction of a new Act.

Whilst this section is more about an organisation's behaviour, it equally applies to directors via these sections and is in line with a directors' responsibilities under the Corporations Act.

Bottom line, David Koch and his board met and decided to wait until the end of the season before they would make any key decisions. David Koch went out in a public forum and on Monday 8th August said he wouldn't make any decisions until after the season. David Koch then on Thursday 11th unilaterally made a decision about Ken Hinkley that breached his Monday representation and changed what he/the board would do. His Monday representation was misleading and I'd put my money on him misleading his fellow board members, and changing what they had agreed to at a previous board meeting.

If those board members do not pull him into line, then they have passively accepted that its ok to make a misleading and deceptive representation.

Now the various Acts are about giving people the right to sue a corporation/business entity and its directors for compensation. I'm not saying anyone will sue Koch or Port, but I am saying he clearly has breached his responsibilities, and in doing so has exposed his fellow board members to being accused of the same misleading or deceptive representations, unless they censure him, maybe even vote that they have no confidence in him.

Now the AFL is full of this stuff and conflicts of interest and nobody does anything about it. Maybe it's time to start.

Koch's professional bullshiting has placed his fellow directors in an uncomfortable position. They all have a fiduciary duty to the club first and its members, even if the constitution says members = directors and club members are subordinate. They all have that duty first to the club and not the AFL despite people on here saying the AFL controls all these people. [put to one side the prison bar jumper issue, because that is completely separate legal issue that isn't about directors' responsibilities].

This is another reason why Koch has got to go. He has said he is in charge - he selects the other 7 directors not voted by the club members and the AFL rubber stamps them. He has overstepped his legal responsibility.

Its time to lobby other board directors to tell them they have to vote to pull Koch into line otherwise they are as misleading and deceptive as him.

I will ask Power Raid to make a few comments about directors responsibilities as he has sat on several boards in the past and sits on different ones currently.

MrMeaner is a lawyer who works in an area of law that assess the conduct of directors, so he might want to comment as well.

If you see a few Port board directors who work for large organisations resign over the next few weeks and months, long before their term is up, then its probably a sign that they understand they wont passively accept Koch's misleading representations. Those who work in the media will probably brush it off as just the usual bullshit they are used to. Well it's not.

This is how you find the relevant legislation since the 2010 changes.

COMPETITION AND CONSUMER ACT 2010 - SECT 4 Interpretation​

Australian Consumer Law" means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.

PART XI--APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH​

DIVISION 1--PRELIMINARY​

• 130 Definitions
• 130A Expressions defined in Schedule 2

DIVISION 2--APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH​

Schedule 2—The Australian Consumer Law
.....
Chapter 2—General protections
Part 2‑1—Misleading or deceptive conduct

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

19 Application of this Part to information providers
.....
Part 2‑2—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law


For those who like flowcharts and diagrams

 

[PowerLil]

Several times in his speeches at Alberton, at pre match functions and in Hong Kong and China, David Koch has stated he is just a professional bullshiter. Well David your bullshit will cost you, your club and your fellow directors.

If we still had an August members info night or the AGM was close I would take the microphone and ask/say - David, several times during your presidency / chairmanship you have stated in public forums that you are a professional bullshiter. I would like to spend the next 20 minutes discussing that bullshit and the bullshit you have imposed on our club.

I am better informed on the old Trade Practices Act Section 52 about Misleading or Deceptive Conduct and and Section 53 ( and amendments to Sect 53A and 53B) False or Misleading Representations, but these sections have been rolled over into the Australian Consumer Law and are a bit more complicated to find and are a bit wider in coverage and you have to dig around to find the relevant legislation. Below is how you find the (new) Section 18 ( and 19 and 20) post the 2010 amendments and introduction of a new Act.

Whilst this section is more about an organisation's behaviour, it equally applies to directors via these sections and is in line with a directors' responsibilities under the Corporations Act.

Bottom line, David Koch and his board met and decided to wait until the end of the season before they would make any key decisions. David Koch went out in a public forum and on Monday 8th August said he wouldn't make any decisions until after the season. David Koch then on Thursday 11th unilaterally made a decision about Ken Hinkley that breached his Monday representation and changed what he/the board would do. His Monday representation was misleading and I'd put my money on him misleading his fellow board members, and changing what they had agreed to at a previous board meeting.

If those board members do not pull him into line, then they have passively accepted that its ok to make a misleading and deceptive representation.

Now the various Acts are about giving people the right to sue a corporation/business entity and its directors for compensation. I'm not saying anyone will sue Koch or Port, but I am saying he clearly has breached his responsibilities, and in doing so has exposed his fellow board members to being accused of the same misleading or deceptive representations, unless they censure him, maybe even vote that they have no confidence in him.

Now the AFL is full of this stuff and conflicts of interest and nobody does anything about it. Maybe it's time to start.

Koch's professional bullshiting has placed his fellow directors in an uncomfortable position. They all have a fiduciary duty to the club first and its members, even if the constitution says members = directors and club members are subordinate. They all have that duty first to the club and not the AFL despite people on here saying the AFL controls all these people. [put to one side the prison bar jumper issue, because that is completely separate legal issue that isn't about directors' responsibilities].

This is another reason why Koch has got to go. He has said he is in charge - he selects the other 7 directors not voted by the club members and the AFL rubber stamps them. He has overstepped his legal responsibility.

Its time to lobby other board directors to tell them they have to vote to pull Koch into line otherwise they are as misleading and deceptive as him.

I will ask Power Raid to make a few comments about directors responsibilities as he has sat on several boards in the past and sits on different ones currently.

MrMeaner is a lawyer who works in an area of law that assess the conduct of directors, so he might want to comment as well.

If you see a few Port board directors who work for large organisations resign over the next few weeks and months, long before their term is up, then its probably a sign that they understand they wont passively accept Koch's misleading representations. Those who work in the media will probably brush it off as just the usual bullshit they are used to. Well it's not.

This is how you find the relevant legislation since the 2010 changes.

COMPETITION AND CONSUMER ACT 2010 - SECT 4 Interpretation​

Australian Consumer Law" means Schedule 2 as applied under Subdivision A of Division 2 of Part XI.

PART XI--APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH​

DIVISION 1--PRELIMINARY​

• 130 Definitions
• 130A Expressions defined in Schedule 2

DIVISION 2--APPLICATION OF THE AUSTRALIAN CONSUMER LAW AS A LAW OF THE COMMONWEALTH​

Schedule 2—The Australian Consumer Law
.....
Chapter 2—General protections
Part 2‑1—Misleading or deceptive conduct

18 Misleading or deceptive conduct

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1).

19 Application of this Part to information providers
.....
Part 2‑2—Unconscionable conduct
20 Unconscionable conduct within the meaning of the unwritten law


For those who like flowcharts and diagrams


View attachment 1478440

I did wonder if a vote of no confidence in the Chairman would be tabled this Wednesday. Bloody hope so.

 

[misternoitall]

I think you'd lose everyone in the room.

How about:

David, you're a dick, when will you move on?

 

[RussellEbertHandball]

I think you'd lose everyone in the room.

How about:

David, you're a dick, when will you move on?

Nothing stopping you doing it.

 

[thundercloud]

Sitting in perth airport for flight to karattha so have time. Could well be wrong but guessing seemed to be a pushback from the first statement. Butters, rosee went public strongly from their viewpoint. I dont discount their support of hinkley as let face it they are the clubs playing future. How chris davies, ceo reacted is unknown. Also the board members. So how widely did he consult, use due process is a fair question.

 

[Chewy316]

Pin this to the top of this forum. All should read.

David likes to think he runs this club autonomously, but he has made a grave error and gone far out of line with his latest 72 hour back flip last week.

As REH said, if the current board members don't respond to these claims, one could seriously question whether they too are complicit in this deceit.

I implore the Board of Directors to seriously question the conduct of the club's President over the last week in particular, and ask themselves if they want to remain associated to someone who is willing to throw everyone under the bus to maintain their own agendas at play. And if not, I implore the Board of Directors to implore a vote of no confidence against the current President, as he should either be moved on by force, or walk on his own volition.

 

[dirty2]

In layman's terms.... What does this mean?

 

[Us against the rest]

In layman's terms.... What does this mean?

Koch bullshitted, He said on the 8th that no decisions will be made until the end of the season then came out on the 11th and endorsed Hinkley as coach for 2023.

18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

 

[RussellEbertHandball]

In layman's terms.... What does this mean?

Koch can't bullshit and not have implications. If his fellow directors don't pull him into line, they effectively endorse his bullshit.

Scope is there for fellow directors to do something about Koch. If they don't endorse Koch, can't do something about it, then the more professional directors, might walk.

 

[Butters and Pepper]

REH to replace Gill.

 

[Us against the rest]

Koch can't bullshit and not have implications. If his fellow directors don't pull him into line, they effectively endorse his bullshit.

Scope is there for fellow directors do something about Koch. If they don't endorse Koch, can't do something about it, then the more professional directors, might walk.

So what can be done about it?

 

[carnthemaggies]

Koch would probably argue that Hinkley is already contracted and that there was no 'decision' involved - that the board did not raise an agenda item of whether to continue with Ken in 2023. We'd have to have minutes from the Board mtg as evidence of a discussion and then his subsequent shift in decision making.

 

[RussellEbertHandball]

So what can be done about it?

What is it? This situation is in the hands of the directors, unless you want to personally sue Koch for misleading and deceptive representation.

 

[Interstater]

 

[RussellEbertHandball]

Koch would probably argue that Hinkley is already contracted and that there was no 'decision' involved - that the board did not raise an agenda item of whether to continue with Ken in 2023. We'd have to have minutes from the Board mtg as evidence of a discussion and then his subsequent shift in decision making.

Its up to the directors. They are the ones who had meetings and made resolutions about reviews - who, what, when and if contracts would be terminated and compensation paid. Its why I wrote

"Its time to lobby other board directors to tell them they have to vote to pull Koch into line otherwise they are as misleading and deceptive as him."

 

[carnthemaggies]

Yep I get you now - the only avenue to information is through the other directors. Just re listening to Koch from the monday statement. he said we have to 'assess every single line item in the football dept' at end of year. We could presume that meant all coaches, and did presume at the time of hearing it.

 

[Power Raid]

Hear hear REH

the misleading a deceptive conduct for me is a major concern for two reasons:
1) The purchase of a membership is more than rights to go to a game. Otherwise we would all simply buy game day passes. Purchasing a membership is the purchase of a product which includes the whole experience of being part of a club. If the President engages in misleading and deceptive conduct, worse spruiks about being a professional bullshit artist, then there is debate about the direct implications of misleading and deceptive conduct.

2) but where it strikes me, is the complete disregard for everyone. Kochie is disrepecting the club, the members and putting the board in a very "EASY" position. The board either sits back and accepts total disregard for the member, the board as a whole and them as an individual. Or they do what they are paid to do, grow some balls, and do the right thing regardless of how scared they may be to do so.


THE BOARD MUST ACT

The starting point would be to review the clubs policies, code of conduct and charter. Then identify if misleading and deceptive conduct breaches existing codes.

If there isn't one, the board MUST draft up a what I would call the KOCH POLICY re misleading and deceptive conduct.

As they are drafting and ratifying the policy, common sense would be two questions:
1) why do we need this policy? surely we don't need to put something so common sense into a code
2) when adopting it, ask themselves why Kochie is still at the table

Going through a simple common sense process should see Kochie resign or the board terminate Kochie

 

[Power Raid]

Yep I get you now - the only avenue to information is through the other directors. Just re listening to Koch from the monday statement. he said we have to 'assess every single line item in the football dept' at end of year. We could presume that meant all coaches, and did presume at the time of hearing it.

yep, any reasonable person would agree with you. If you call for a review, then a review must run its course.

He has either mislead in the fact a review has never been commissioned and never intended to be commissioned; or
mislead and claims a review was completed, findings presented to the board and adopted.

The fact Kochie spruiks he is a professional bullshit artist already makes him unsuitable for corporate life and boards. I would hope all PAFC members and directors expect integrity to be a non negotiable. Even Kochie doesn't believe he has integrity, so I'm not sure how the board can tolerate his position.

 

[Portology]

I want Ken gone as much as most everyone else here but..

Firstly yes he's backflipped (being kind) but how hard does the link to trade have to be, and be proven? I guess folks are buying merch and the new AFLW membership and choosing to attend games or not in the middle of all this some based on their support for/confidence in these statements... some for some against, doesn't matter, that just means someone has definitely been deceived one way or the other. Is that enough though? Are damages limited to just the financial "what you wouldn't have spent had you not been 'deceived'?".

Secondly would a court hold that processes around "management restructures" are internal and subject to change anyway?

 

[RussellEbertHandball]

I want Ken gone as much as most everyone else here but..

Firstly yes he's backflipped (being kind) but how hard does the link to trade have to be, and be proven? I guess folks are buying merch and the new AFLW membership and choosing to attend games or not in the middle of all this some based on their support for/confidence in these statements... some for some against, doesn't matter, that just means someone has definitely been deceived one way or the other. Is that enough though? Are damages limited to just the financial "what you wouldn't have spent had you not been 'deceived'?".

Secondly would a court hold that processes around "management restructures" are internal and subject to change anyway?

Why bring a court into it? No Port member is going to sue Koch. The law, this one and the Corporations Act and other laws, isn't just about consumers, but also about the behaviour of all board members.

 

[Power Raid]

Pin this to the top of this forum. All should read.

David likes to think he runs this club autonomously, but he has made a grave error and gone far out of line with his latest 72 hour back flip last week.

As REH said, if the current board members don't respond to these claims, one could seriously question whether they too are complicit in this deceit.

I implore the Board of Directors to seriously question the conduct of the club's President over the last week in particular, and ask themselves if they want to remain associated to someone who is willing to throw everyone under the bus to maintain their own agendas at play. And if not, I implore the Board of Directors to implore a vote of no confidence against the current President, as he should either be moved on by force, or walk on his own volition.

I feel for young directors like Holly, as she is too young to appreciate her responsibility here.

Then again, this is exactly why Kochie would like her on the board.........he knows Holly and others will be like dears in the headlights.



I've been in scenarios where I've had to sack Chairs, MDs and CFOs. It is never an easy decision and even harder if they don't accept ownership or acted in concert.

but when your laying in bed, with a thousand things running through your mind, and all you want to do is resign and run away when things get hard..........what clarifies everything is, "when I accepted the role, when I accepted the pay, when I accepted the responsibility; I accepted I'd have to do the right thing when called on".

Hopefully all board members, including the younger ones, know what is right and the courage to do it.

 

[Power Raid]

I want Ken gone as much as most everyone else here but..

Firstly yes he's backflipped (being kind) but how hard does the link to trade have to be, and be proven? I guess folks are buying merch and the new AFLW membership and choosing to attend games or not in the middle of all this some based on their support for/confidence in these statements... some for some against, doesn't matter, that just means someone has definitely been deceived one way or the other. Is that enough though? Are damages limited to just the financial "what you wouldn't have spent had you not been 'deceived'?".

Secondly would a court hold that processes around "management restructures" are internal and subject to change anyway?

This is about integrity and acts of ones own folly

 

[Portology]

This is about integrity and acts of ones own folly

Oh his lack of integrity is not in question mate

My question is who has power to enforce, and how? Are we relying on self regulating shame from our other directors, because they want future board seats? On a professional association with delegated power to gate keep required certifications (could that be AICD)? Or a more general business regulator like ASIC?

The question is about… Power.


On iPhone using recycled electrons, via BigFooty.com mobile app

 

[MrMeaner]

The key thing to take from this is that there has been a failure of leadership from the Club’s administration from the board down. Directors who remain are giving their support for the way Koch has been (mis)managing things.

I don’t know that the legal concepts help as much as they may seem. There is a bit of grey-area when it comes to whether directors have been acting bona fide in the best interests of the club. The difficulty is that concept is interpreted pretty broadly, in a way that is reasonably deferential to directors. In the context, it is also difficult to work out who the ‘club’ is here and what it’s interests are.

In relation to misleading conduct, it’s likely that Koch was bullshitting us but everything was above board re the club. Basically, we don’t count in this regard.

What we have is a political problem with little to no power to resolve it. The only real power we have is in withdrawing our money from the club as the implications of that is something that is something the directors will have to take into account.

 

[Power Raid]

Oh his lack of integrity is not in question mate

My question is who has power to enforce, and how? Are we relying on self regulating shame from our other directors, because they want future board seats? On a professional association with delegated power to gate keep required certifications (could that be AICD)? Or a more general business regulator like ASIC?

The question is about… Power.


On iPhone using recycled electrons, via BigFooty.com mobile app

The first step is simple, a call for directors to protect their own reputations and protect PAFC from being brought into disrepute

After that it simply gets ugly



The beacon of light for PAFC board members, is look at Collingwood floroush on the park the moment Toxic Eddie was shown the door. I have no doubt PAFC will follow suit, if the change is clean and now.