Jackson v Heart Research Institute Ltd - [2025] FCA 301

FEDERAL COURT OF AUSTRALIA
Jackson v Heart Research Institute Ltd [2025] FCA 301

File number: NSD 773 of 2024

Judgment of: RAPER J

Date of judgment: 2 April 2025

Catchwords: CORPORATIONS – whistleblower protections – claim for relief under ss 1317AD and 1317AE of the Corporations Act 2001 (Cth) – whether the respondent engaged in conduct that was a “detriment” within the meaning of s 1317ADA by not renewing the applicant’s employment contract – whether the respondent had the requisite suspicion or belief, under s 1317AD(1)(b), which was the reason, or part of the reason for the detrimental conduct – where the respondent is a company – whether the respondent’s state of mind comprised the voting directors or others with a material contribution to the decision-making process

CONSUMER LAW – misleading and deceptive conduct – where there were negotiations regarding a new employment contract and a collaboration agreement to commercialise a drug – whether the respondent’s conduct had a tendency to lead the applicant to believe that his employment contract would be extended for five years and the respondent would finalise and enter into a commercialisation agreement with the applicant’s entity

EVIDENCE – legal professional privilege – whether legal professional privilege is waived – where privileged documents comprise file notes of legal advisors, employees and directors of respondent from meetings in relation to non-renewal of applicant’s employment contract – whether the respondent has waived privileged over certain advice

Legislation:
Australian Securities and Investments Commission Act 2001 (Cth) s 12CC(1)

Corporations Act 2001 (Cth) ss 1317AA, 1317AA(4), 1317AA(5), 1317AADA, 1317AADA(1), 1317AADA(2), 1317AADA(2)(a), 1317AADA(2)(b)(i), 1317AC, 1317AC(1)(c) 1317AD, 1317AD(1), 1317AD(1)(a),1317AD(1)(b)–(c), 1317AD(1)(c), 1317AD(2B), 1317AD(2B)(a)(i), 1317AD(2B)(b), 1317ADA, 1317ADA(b), 1317ADA(j), 1317AE, 1317AH

Competition and Consumer Act 2010 (Cth) sch 2 ss 18, 236

Federal Court of Australia Act 1976 (Cth) s 37M

Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth)

Cases cited:
Australian Olympic Committee, Inc v Telstra Corporation Ltd [2016] FCA 857

Australian Securities and Investments Commission v Mariner Corporation Ltd [2015] FCA 589; 241 FCR 502

AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30

Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1

EssoAustralia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49

Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341

Grant v Downs [1976] HCA 63; 135 CLR 674

Jones v Dunkel [1959] HCA 8; 101 CLR 298

Mann v Carnell [1999] HCA 66; 201 CLR 1

McKenzie v Cash Converters International Ltd [2017] FCA 1564

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; 241 CLR 357

Mount v Dover Castle Metals Pty Ltd [2025] FCA 101

New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543

Reiche v Neometals Ltd (No 2) [2025] FCA 125

Thomas v New South Wales [2006] NSWSC 380

Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132; 413 ALR 227

Division: Fair Work

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 506

Date of hearing: 23 September 2024 to 27 September 2024, 30 September 2024, 2 October 2024 to 4 October 2024, 17 October 2024

Date of last submission: 18 February 2025

Counsel for the Applicant: Mr D Mahendra with Mr P Boncardo

Solicitor for the Applicant: Maurice Blackburn

Counsel for the Respondent: Mr M Seck with Mr D Fuller

Solicitor for the Respondent: MinterEllison

ORDERS

NSD 773 of 2024

BETWEEN:
SHAUN JACKSON

Applicant

AND:
THE HEART RESEARCH INSTITUTE LTD (ABN 41 003 209 952)

Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

2 APRIL 2025

THE COURT ORDERS THAT:
1.Professor Jackson’s Further Amended Originating application, filed on 29 July 2024, be dismissed.
2.Any application for costs, together with any evidence and submissions (of not more than four pages) be filed and served by 4:00pm on 16 April 2025.
3.Any affidavit(s) and submissions (of not more than four pages) in response be filed and served by 4:00pm on 30 April 2025.
4.If no application for costs is made within the time frame fixed by order 2 above, there be no order as to costs.

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

REASONS FOR JUDGMENT
RAPER J:
Introduction

Professor Shaun Jackson was employed by The Heart Research Institute Ltd from 1 October 2013 to 30 June 2024. Professor Jackson was HRI’s Director of Cardiovascular Research and head of its Thrombosis Research Group. Both Professor Jackson and the TRG were undertaking clinical trials for a potentially revolutionary drug to treat stroke victims, TBO-309. The TRG’s research and work was funded largely by grants allocated and tied to Professor Jackson’s employment by HRI. Professor Jackson was employed under a series of maximum term contracts.
From in or about August 2022, there were negotiations as between Professor Jackson and HRI’s representatives primarily with its then just appointed interim Scientific Director, Professor Andrew Coats and Mr Peter McGauran (HRI’s Chairman), as to the terms of Professor Jackson’s new employment contract and a collaboration agreement as between HRI and Professor Jackson’s company for the commercialisation of TBO-309 (ThromBio Holdings Pty Ltd). The parties had hoped that both agreements would be finalised by the end of 2022, but they were not. Also, from August 2022, the drug manufacture for the trial of TBO-309 had commenced.
In early 2023, concerns were raised with HRI as to the viability of the trial (largely because of the actual and committed costs for the manufacture of the drugs). At the same time, Professor Jackson and the CEO of a company incorporated by Professor Jackson to commercialise TBO-309, Mr Peter Bush, began to question the financial management and practices of HRI with respect to grants allocated to Professor Jackson. This included concerns that TRG had not received the “top-up” funding it had been entitled to in 2013 and 2014 from HRI (which, if it had, according to Mr Bush, the concerns regarding its viability would evaporate).
On 24 July 2023, HRI’s Board determined, following these queries and complaints being made, not to renew Professor Jackson’s contract. According to Professor Jackson, that decision was not, on its face, rationally explicable. In this context, HRI’s board minutes stated that Professor Jackson was “now querying historical transactions… from 10 years ago”.
By Professor Jackson’s further amended originating application filed on 29 July 2024, he sought relief on numerous grounds. Professor Jackson, consistent with the obligations of civil practice under s 37M of the Federal Court of Australia Act 1976 (Cth), for which his representatives are be commended, ultimately only pressed two of his pleaded claims.
There are therefore two main issues to be determined: First, whether HRI contravened s 1317AD(1) of the Corporations Act 2001 (Cth) in determining not to renew Professor Jackson’s employment contract on 24 July 2023 (the whistleblowing claim). Secondly, whether HRI engaged in misleading and deceptive conduct, contravening s 18 of sch 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) by representing that Professor Jackson’s contract would be extended by five years, and that HRI would finalise and enter into a collaboration agreement with ThromBio (the ACL claim).
Whilst, for the following reasons, Professor Jackson’s claim must fail, it very hard not to be sympathetic to the situation he found himself in. Professor Jackson is an extremely accomplished researcher undertaking critical health research. Whilst this decision finds that his allegations of being misled in contractual negotiations and subjected to detrimental treatment as a consequence of any alleged prohibited belief or suspicion are not established, the decision makes no findings as to any alleged misconduct on his part. The Court was not asked to make any such findings and could not have done so on the evidence. These conclusions concern the limited case before me.
For the following reasons, my conclusions with respect to each of these claims are as follows: First, the whistleblowing claim fails for three reasons: (a) the decision not to renew Professor Jackson’s employment does not constitute a detriment within the meaning of ss 1317AD(1), 1317ADA(b) or (j) of the Corporations Act; (b) in any event, HRI has discharged its onus under s 1317AD(2B) and proved that it did not hold the alleged prohibited belief or suspicion; and (c) further, even if it did, HRI was not motivated by this prohibited belief or suspicion in the decision not to renew Professor Jackson’s employment. Secondly, the ACL claim fails because Professor Jackson did not establish that the alleged representations were made and alternatively, even if they were, they were not misleading.
The witnesses in the proceedings
Professor Jackson relied upon the evidence of 10 witnesses, including himself. HRI made no serious challenge to the credit of any of his witnesses. This is unsurprising, given HRI’s position with respect to the two claims was that even if one accepted Professor Jackson’s account, his claims would fail.
Mr Bush, CEO of ThromBio, gave evidence concerning how ThromBio was funded, including funding from HRI, as well as discussions between him and HRI regarding Professor Jackson’s future employment with HRI and finalising the collaboration agreement for the commercialisation of TBO-309. In addition, Professor Jackson relied upon the evidence of members of the Steering Committee of the Safety and Tolerability of AZD6482 in Reperfusion for Stroke trial (STARS trial), the body responsible for oversight of the conduct of the clinical trials for TBO-309, being Professor Geoff Donnan, Dr Candice Delcourt, Professor Christopher Levi and Professor Craig Anderson. Their evidence was relied as to the question of relief (which for the reasons which follow, ultimately did not require determination). Associate Professor Schoenwaelder gave evidence on the impact upon her of HRI parting ways with ThromBio and Professor Jackson, as well as processes for approving Ardena Statements of Work (SoWs). Dr Yuping Yuan, Mr Benjamin Hoffma, Mr Ethan Italiano and Mr Imala Alwis gave evidence of working with Professor Jackson and the consequent effect upon of them of cessation of Professor Jackson’s relationship with HRI.
In support of HRI’s case, HRI relied upon the evidence of Mr McGauran (the Chair of HRI’s Board). Mr McGauran’s evidence concerned both the alleged representations in the ACL claim (some of which include what he said and his conduct), as well as him being one of the voting directors that made the decision not to renew Professor Jackson’s contract, in the whistleblowing claim. HRI relied upon the evidence of each of the other voting directors namely Professor Andrew Boyle, Mr Antony Pollitt, Professor Merilyn Sleigh, Mr Rodney Halstead, Mr Richard Rassi and Dr Kate McBride (in addition to Mr McGauran). They did not include Professor Coats, whose unchallenged evidence was that he did not vote on the resolution, nor did Dr Tim Gainsford. Dr Gainsford did not give evidence in the proceeding. He held the position of Chief Operating Officer. Ms Elissa Dwyer was Director of Human Resources. Dr Hana Krskova, held the position of Director of Finance. Her evidence went primarily to the attempts that were made between March and July 2023 to work out (with Mr Bush) the ongoing viability of the STARS trial. In addition, HRI relied upon the evidence of Mr Peter Howes, who was not a voting director but a member of HRI’s Audit, Risk and Finance Committee.
Additionally, HRI relied upon the evidence of Professor Coats, who had taken up the position of interim Scientific Director in August 2022. It was Professor Coats who reported to the Board regarding the negotiation of Professor Jackson’s future employment contract and also the collaboration agreement. In addition, it was Professor Coats who reported to the Board regarding the material events concerning Professor Jackson in the lead up to the decision not to renew Professor Jackson’s employment contract.
As will be evident, when dealing with the misleading and deceptive conduct claim below, to the extent necessary, I will make findings of credit in the context of considering the disputed evidence of conversations as between Professor Coats, Mr McGauran and Professor Jackson. It is my view, that all three witnesses endeavoured to give truthful evidence. However, on certain occasions, I have preferred the evidence of Mr McGauran and Professor Coats over Professor Jackson for the reasons set out below.
For the purpose of the whistleblowing claim, the evidence of each of the voting directors and Professor Coats is important. Professor Jackson sought to impugn each of their testimony. I have dealt with the challenges to credibility of each of these witnesses, where their evidence is specifically dealt with in my judgment. Ultimately, all challenges to the credibility of HRI’s witnesses have not succeeded.
Given much was made by Professor Jackson of Professor Coats’ credibility with respect to both the ACL claim and the whistleblowing claim, it is worthwhile expressing some views at this stage, noting more fulsome reasons are given later. This concern as to his credit was said to be borne out by his purported lack of candour and inaccurate accounts (as recorded in the Board minutes) of Professor Jackson’s alleged failure to progress negotiations. For the reasons which are set out below, when dealing with the specific instances, whilst I accept Professor Coats was not always frank in his dealings with Professor Jackson, that was a product of how Professor Coats negotiated and his concerns that his own interests and those of HRI did not align with what Professor Jackson was seeking at the negotiation table. Similarly, for the reasons set out below, Professor Coats did paint a particular picture of Professor Jackson to the Board that served his own interest. Initially, he was charged with negotiating the collaboration agreement with Professor Jackson. It appeared that Professor Coats wanted the Board to see his efforts in that role in the negotiation in the best possible light—it was not him or HRI (under his guidance) that was delaying negotiations but Professor Jackson. This appeared to continue a narrative that had formed before his involvement. The evidence revealed that in Board minutes from January 2022 onwards (but before Professor Coats became employed in August) notations were made about the protracted negotiations of the collaboration agreement with Professor Jackson and included that agreement on the quantification of HRI support for Professor Jackson’s lab (the Jackson lab) was “proving challenging”. In addition, Professor Coats formed views early in his tenure that HRI’s interests were not necessarily being best served by what Professor Jackson was seeking, Professor Jackson was not in a strong bargaining position (Professor Coats perceived that he could not get the same level of support elsewhere and he did not have offers of alternative employment) and he was stringing out the negotiation of the collaboration agreement to sure up the best deal he could regarding his new employment contract. It is these views that motivated Professor Coats to report to the Board in not necessarily the most accurate way. For the reasons which follow, it is not my view that his motivations, when reporting to the Board in the way he did, were because of or included as part, an unlawful one.
In closing, Professor Jackson identified a number of transcript references which he submitted illustrated inconsistencies in Professor Coats’ evidence. Unfortunately, almost no submission was made to develop how they illustrated the same other than by provision of the references. I am not persuaded by them. To the extent that I was able to decipher the bare tenor of the submission for each, a careful review of each of those references, did not prove persuasive. For example, to the extent that Professor Coats gave evidence about Dr Gainford providing factual information in Board meetings, I do not see that there is inconsistency in him saying that at critical meetings, Dr Gainsford did not say anything of substance. Professor Coats’ answers were responding to different questions on each occasion.
I do not accept that the evidence points against the Court accepting Professor Coats’ evidence but I agree that is indicative of the Court needing to exercise a degree of caution regarding the acceptance of his evidence. It was my view that Professor Coats gave evidence which was largely credible. True to his personality and general demeanour, he does not have the effusive, volubility and force of personality of Professor Jackson. He was guarded in his responses in the same way in which he was guarded when dealing with Professor Jackson. It appeared to stem from a belief that he did not need to show his hand with Professor Jackson and that they were in negotiations. It was clear that he believed (I think rightly) that Professor Jackson believed he could extract a better deal from others (particularly Mr McGauran) within HRI and was trying to work out ways to go around him at the negotiating table. Professor Coats was looking after his own and what he perceived to be HRI’s interests.
There is an unfortunateness to his lack of candour though: It left a lacuna in which Professor Jackson was left in the dark, and from that darkness, (ultimately unfounded) suspicions grew.
Background
The evidence, in summary, revealed the following.
In August 2022, negotiations were ongoing regarding Professor Jackson’s employment contract and a collaboration agreement. Professor Jackson was HRI’s Director of Cardiovascular Research and head of its TRG. During this year, Professor Jackson and TRG were embarking on clinical trials for TBO-309, referred to as the STARS trials. TRG’s research and work was funded largely by grants allocated and tied to Professor Jackson. At the same time, Professor Jackson was negotiating with HRI to enter this collaboration agreement whereby the parties would commercialise TBO-309, HRI would provide financial support to ThromBio (the entity registered in 2020 by Professor Jackson, with Mr Bush as its CEO, to commercialise TBO-309), as well as HRI employee time and premises, in exchange for equity in the company.
These negotiations were being undertaken when there was a changing of the guard at HRI: Mr McGauran came on board as Director in June 2022, Professor Coats as Interim Scientific Director in August 2022. Dr Hollings, Mr Scott Martin and Ms Debbie Ormsby (who had been previously involved in the negotiations) had left. This meant that there was very limited prior corporate knowledge (as to how Professor Jackson’s lab, funds and employment had been previously managed) but it also is material when issues arose as to his lab funds later (Professor Jackson remains but those on the HRI side do not have the prior corporate knowledge).
It is this disjunct (as to knowledge of past practices) which fuels (unfortunately, mistrust and confusion) on both sides, that is material in the demise of the relationship between the parties. Professor Jackson had a firm view about the past, past practices; how his lab funds were managed, what HRI was required to contribute, and his role in committing HRI to financial outlays. HRI had a different view, but one based not on direct corporate knowledge (by employees engaged at the time) of the past. However, there were certain voting directors who had a lengthy history on the Board and past experience of dealing with Professor Jackson in protracted contractual negotiations.

However, it was clear that, with respect to the collaboration agreement, that Professor Coats and Mr McGauran understood, as at August/September 2022, that it was in its final stages of negotiation and had been largely agreed. However, despite the fact that it was understood that HRI was to provide a draft of the collaboration agreement in fulsome terms, as drafted by HRI’s (then lawyers) Corrs, the draft agreement was not in fact provided to Professor Jackson and Mr Bush until 27 October 2022.
In the meantime, a Master Services Agreement had been entered between HRI and Ardena, (a company that provides drug development, manufacturing and analytical services to pharmaceutical companies), for the provision of services with respect to manufacturing the drugs for trials. There was no formal system for the creation of Statements of Work (SoWs). No policy nor instruction was given to Associate Professor Schoenwaelder nor Professor Jackson in this regard. There was a great deal of dispute between the parties regarding whether Professor Jackson was in fact “approving” the SoWs and in effect the commitments by HRI under HRI’s delegation policy. For the reasons already stated above, it appears this dispute arose from the fact that those within HRI who had worked with Professor Jackson in the past (on financial matters) had left, there was no clear demarcation in roles, nor communication regarding how the delegation policy was to be applied in practice.
It was Professor Jackson’s evidence that he was required to approve those SoWs as Chief Investigator A, the person responsible for the scientific leadership under the MRFF (clinical trial) grant but that, as to whether the funds would be committed by HRI, that was for HRI to approve as part of the co-signature approval process. This was hotly contested.
Of particular significance was the fact that an SoW was approved in August 2022 for $744,995. HRI denies knowledge of this commitment. It was HRI’s evidence that it did not become aware of this being approved by Professor Jackson until March 2023. It was Associate Professor Schoenwaelder’s evidence that when she electronically inserted Professor Jackson’s signature, the next step she took was for the invoice to be sent back to Dr Dan Ford, who was the direct conduit with Ardena. She would also copy in Dr Hollings and Ms Ormsby, and Mr Martin from time-to-time. Associate Professor Schoenwaelder’s evidence was that, from August 2022, she did not include any member of senior management on any email trails in relation to the approval of SoWs once Dr Hollings ceased employment.
Between August and October 2022, Mr Bush and Professor Coats were responsible for negotiations regarding the draft collaboration agreement. Mr Bush was engaged by May 2022 as CEO of ThromBio. Very little happened because Mr Bush was awaiting the Corrs draft, which was not provided until 27 October 2022.
With respect to the negotiation of the renewal of Professor Jackson’s employment contract, Professor Jackson’s contract of 1 July 2021 required by cl 2.6, as a condition of his employment that, by 31 December 2021, ThromBio and HRI would have entered into the collaboration agreement, and, not having entered into an agreement by that time, either party could terminate the contract. There was an agreed extension until 31 December 2022. There were a number of conversations about the employment contract, but by December 2022, the parties could not agree. It is my view that they did all generally want to agree, HRI did want Professor Jackson to remain and to benefit from his research. As much was said by Professor Coats in his text to Mr McGauran of 5 December 2022, but there were two primary sticking points: his title (and the important associated level of authority and autonomy) and his position proximate to Professor Coats’ position, and secondly, whether any additional funds from HRI would be given to Professor Jackson as part of the deal.
It appeared that Professor Jackson knew from the Balmoral dinner on 29 September 2022 (a dinner attended by Professor Jackson with Mr McGauran and Professor Coats), that with a potential merger in the mix for HRI with the Centenary Institute, Mr McGauran was not going to stick around and at that time, Professor Coats was only the interim Scientific Director until June 2023. It was not known by Professor Jackson in October/November 2022 that Professor Coats was no longer the interim Scientific Director. It appears that the HRI Board was already thinking Professor Coats was a longer term proposition.
The evidence revealed that Professor Coats, as a negotiator, would say one thing to appease Professor Jackson (between August and December 2022) but would in fact think or do another. This was clear in a number of respects. He had decided very early on that the collaboration agreement (adopting the view of the (then) in-house counsel) was not, in its then agreed terms, a good deal for HRI, but he did eventually provide it to Professor Jackson and Mr Bush on 27 October 2022. It was also his view that Professor Jackson was on a very good wicket and was not in a strong bargaining position regarding his employment contract. Professor Coats definitely did not want Professor Jackson to have the level of authority, autonomy and title that Professor Jackson was seeking. Indeed, Professor Coats conceded under cross-examination that he was concerned that Professor Jackson’s request for the Director of CV (cardiovascular) Research at the Charles Perkins Centre (CPC) would undermine his authority. Professor Coats perceived that Professor Jackson was already receiving a very high salary and would not get the same lab support elsewhere and therefore because he was not a flight risk, they could sit tight and not accede to his demands. It appeared that he believed Professor Jackson would come around.
As to what occurred at the 21 November 2022 meeting, according to Mr McGauran, this is when the “pointy end” crystallised and they were truly negotiating the contract. There were additional meetings in December and then on 3 February 2023. This was the last meeting regarding the negotiations. No agreement was reached at this meeting.
What happened thereafter distracted everyone from the negotiation of these two agreements. In essence, HRI started, from December 2022 to become concerned (a) about its own financial position; and (b) regarding whether it had a handle on the TRG’s own budget. HRI became concerned about whether there were sufficient grant funds to cover the STARS trial (and, in particular, the commitments Professor Jackson had already given to Ardena, who were manufacturing the drug) and started looking at the previous SoWs with Ardena (that Professor Jackson had signed off on) and the accounts. This became an even more pressing issue given HRI’s views regarding its own finances.
Thereafter, Dr Krskova and Mr Bush met and exchanged reports regarding the historical and current financial status of the TRG and the STARS trial. Dr Krskova was charged with this responsibility, given HRI’s concerns which I have just described. Mr Bush was seeking to explain TRG’s financial position so as to ensure that the concerns could be alleviated, and the deal could be done to enter the collaboration agreement.
This information exchange between Dr Krskova and Mr Bush led to Professor Coats informing the Board on numerous occasions in 2023 as to his concerns regarding deficits and insufficient funds to cover the STARS trial. This was all the while when Mr Bush was still trying to get to the bottom of the figures with Dr Krskova, and Professor Jackson had not been informed of the alleged serious breach of the delegation policy.
The evidence regarding the financial status of the STARS trial and where its funding had come from since 2014 was incomplete, often illegible and difficult to decipher. Both parties made clear to the Court that they were not seeking for the Court to make any findings about actual misallocation of funds and failure to provide top-ups. This is unfortunate in some ways because the Court is left without being able to determine the true picture—whether HRI had a basis for its alleged fears regarding the shortfall or for its claims regarding Professor Jackson’s conduct.
What is clear is that both sides believed very different things.
Dr Krskova was telling Professor Coats of an enormous deficit initially on 1 May 2023 of $849,000 but had revised it down and suggested Professor Jackson’s lab contained a surplus initially of $500,000 and then later of $74,000. Mr Bush was asserting that there was no deficit but in fact a surplus because (a) HRI had not provided top-up funding it had allegedly been required (under Professor Jackson’s previous contract) to provide in 2013 and 2014 (to the value of approximately $600,000 which he revealed on 6 July 2023); (b) that HRI was to provide funding for Professor Jackson’s employed associates; and (c) that the commercialisation costs were to be borne by HRI and accordingly there was a $1.4m surplus (as at 6 July 2023). These issues were never ultimately resolved.
In a sense, though, the parade had moved on by this point. The Board was then looking at other issues arising from its relationship with Professor Jackson, including whether Professor Jackson had committed HRI to the Ardena SoW of $744,995 (in August 2022) contrary to the delegation policy, and a number of other issues which led the Board not to renew his contract on 24 July 2023.
It is in this context that the whistleblowing claim arises. This is because, by reason of the sharing of financial information (between Dr Krskova and Mr Bush from February 2023 until July 2023), there were a few board papers, that referred to these requests made by Mr Bush for historical financial information (and suggestions that HRI had not done, in terms of providing financial support, what it had been required to do). It is Professor Jackson’s claim that his assertions in this regard, formed the basis for a contravention of s 1317AD(1), namely that his contract was not renewed (the alleged detrimental conduct) because HRI believed or suspected that Professor Jackson may make, proposes to make or could make a disclosure that qualified for protection.
Professor Jackson was then, after a decision had already been made not to renew his contract, issued with a letter on 15 August 2023, identifying a number of allegations against him and was informed that “HRI is not proposing to continue discussions with [him] about any further employment after the expiry of the Term” and cautioned that if the expressed “concerns are borne out” then his employment for the balance of the term “may be untenable” and requested a response. On 15 September 2023, Professor Jackson responded to the allegations and made his own report of alleged misconduct regarding two former HRI Governors (a claim about which Professor Jackson did not press ultimately at hearing), comprising a whistleblowing complaint. That complaint was investigated by HRI and found not to be substantiated in November 2023.
Thereafter, HRI made a number of other allegations against Professor Jackson. Ultimately, the Court was not charged with being asked to determine these allegations (nor was the Court in a position to).
Professor Jackson thereafter sought to canvass all options with HRI regarding transition arrangements that could be agreed to avoid the drug trial ceasing when his employment ceased. Unfortunately, no agreement was reached. Ultimately, Professor Jackson’s employment ceased on 30 June 2024.
GROUNDS
There is, in part, a factual overlap between each of the two claims. However, the chronology forming the basis for the misleading or deceptive conduct commences first in time and therefore this claim and the relevant facts will be dealt with first.
The ACL claim
Misleading or deceptive conduct
Pleaded case
Professor Jackson’s claim for relief under s 236 of the ACL by reason of HRI’s posited breach of s 18 of the ACL relies upon HRI having made two misleading or deceptive representations (by reason of conduct between June 2022 and 30 March 2023). First, that HRI would extend Professor Jackson’s employment contract for a five year period; and secondly, that it would finalise a collaboration agreement with ThromBio.
In addition, and alternatively, Professor Jackson claimed that, by reason of HRI’s conduct (pleaded as occurring between June 2022 and 30 March 2023), that conduct gave rise to a reasonable expectation of disclosure that if HRI was, at any time, considering that it may not abide by the terms of its representations to Professor Jackson, it would inform him of the same and that in the period between 3 February 2023 and 15 August 2023, despite having formed a view in or about late March or early April 2023 (as pleaded) or as submitted in closing, 3 February 2023, that it may not abide by the terms of its representations to Professor Jackson it would inform Professor Jackson of the same, and did not do so during that period.
HRI asserted that this claim fails because: First, HRI did not make any representation to Professor Jackson to the effect alleged, and the statements that were made did not have an objective tendency to lead him into error; and secondly, HRI was not obliged to make any disclosure to the contrary.
HRI submitted in its oral closing submissions that both the primary claim and the alternative claim are based on positive conduct occurring, as opposed to non-disclosure or inaction. Further, it submitted that the relevant, respective time periods, when the alleged conduct giving rise to the representations were made, were for the first claim, June 2022 to 3 February 2023, and the alternative claim from 3 February 2023 to 15 August 2023. However, both claims are dependent on the positive representations which were alleged to have been made in the period prior to 3 February 2023.
Relevant principles
The applicable principles in relation to actions for misleading or deceptive representations or conduct under s 18 of the ACL are well-settled. There was no apparent dispute between the parties as to the applicable principles but rather the dispute arose as to the application of those principles to the facts and circumstances of this case.
As observed by Wigney J in Australian Olympic Committee, Inc v Telstra Corporation Ltd [2016] FCA 857 at [131] many of the principles concerning misleading and deceptive conduct that are discussed in the authorities comprise common-sense or logical guides to the approach that should be taken in deciding what is, at the end of the day, a question of fact.
I note and adopt the helpful “simple” distillation made of the principles, in Australian Olympic Committee, at [132], as relevant to the resolution of this matter which were as follows:
•Section 18 of the Australian Consumer Law is not limited to misleading and deceptive representations. The question is whether the respondent’s conduct, which may include acts, omissions, statements or silence, is misleading or likely to mislead or deceive: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 at 655 [49] (per French CJ, Crennan, Bell and Keane JJ).
•Conduct is misleading or deceptive if it has a tendency to lead a person into error, or to believe what is in fact false. Conduct is likely to mislead or deceive if there is a real or not remote chance or possibility that it will have that effect: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87-88. It is insufficient for the impugned conduct to only cause confusion or wonderment: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 87 [106] citing the judgment of a majority of the Full Court in Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 170; (1982) 42 ALR 177 at 201 (per Deane and Fitzgerald JJ).
•The question whether conduct is misleading or deceptive is an objective question of fact that is to be determined on the basis of the conduct of the respondent as a whole viewed in the context of all relevant surrounding facts and circumstances. Viewing isolated parts of the conduct of a party “invites error”: Butcher v Lachlan Elder Realty (2004) 218 CLR 592 at 625 [109] (per McHugh J); Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 341-342 [102] (per Gummow, Hayne, Heydon and Kiefel JJ).
•The question involves the characterisation of the relevant conduct. Evidence that persons have in fact been misled or deceived by the conduct is not an essential element, however, it can in some cases be relevant and material: Parkdale Custom Built Furniture v Puxu Pty Ltd (1982) 149 CLR 191 at 198 (per Gibbs CJ).
•The tendency of the conduct or representation to mislead or deceive is to be considered or tested against the ordinary or reasonable members of the class to whom the representation was made or the conduct directed. The question is whether a substantial, or at least a reasonably significant, number of that class is likely to be misled or deceived: see Optical 88 Ltd v Optical 88 Pty Ltd (No 2) [2010] FCA 1380 at [336]-[342]. The focus on ordinary or reasonable members of the relevant class of consumers means, in effect, that possible extreme, unreasonable or illogical reactions can be put to one side.
•It is not necessary to prove that the respondent intended to mislead or deceive, however evidence of such an intention may constitute evidence that the conduct was likely to succeed in misleading or deceiving, and may make a finding of contravention more likely: Yorke v Lucas (1985) 158 CLR 661 at 666 (per Mason ACJ, Wilson, Deane and Dawson JJ).
…
•Where the conduct or representation is in the form of words, it would be wrong to fix on some words and ignore others which may provide relevant context and give meaning to the impugned words. It is necessary to have regard to the whole document: Butcher at 638-639 [152] (per McHugh J).
•In assessing or characterising the relevant conduct or representation, it is necessary to have regard to any relevant disclaimer. The substance, effect and prominence of the disclaimer must be considered in the context of the conduct or representation as a whole: Australian Competition and Consumer Commission v Telstra Corporation [2007] FCA 1904; (2007) 244 ALR 470 at 494 [116] citing the judgment of the Full Court in Keen Mar Corp Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1989] FCA 54.
•The question must ultimately be whether any disclaimer communicates information in such a way or in such a manner that the effect of any otherwise misleading conduct or representation is reversed or erased: Butcher at 638-639 [152] (per McHugh J). A disclaimer in a document or on a website may be more effective than one on, for example, a television advertisement as the latter is likely to be more transient, ephemeral or less noticeable: TPG Internet at 654 [47] (per French CJ, Crennan, Bell and Keane JJ).
•There may be some circumstances where an express disclaimer inconsistent with the message otherwise conveyed will not prevent the conduct or representation from being misleading or deceptive, or might even reinforce that message: Telstra at [114]. Each case must be considered having regard to its own facts and circumstances.
HRI emphasised that, in the context of commercial negotiations between parties where there are conflicting interests, there is no obligation of disclosure by parties who are sophisticated in nature (and where there is no great disparity of bargaining power between them and they are represented by lawyers), which was the case here.
It is instructive to refer to the observations made by French CJ and Kiefel JJ in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; 241 CLR 357 at [20]–[22], regarding what may be taken into account in the context of commercial dealings:
20In commercial dealings between individuals or individual entities, characterisation of conduct will be undertaken by reference to its circumstances and context. Silence may be a circumstance to be considered. The knowledge of the person to whom the conduct is directed may be relevant. Also relevant, as in the present case, may be the existence of common assumptions and practices established between the parties or prevailing in the particular profession, trade or industry in which they carry on business. The judgment which looks to a reasonable expectation of disclosure as an aid to characterising non-disclosure as misleading or deceptive is objective. It is a practical approach to the application of the prohibition in s 52.
21To invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect of non-disclosure unmediated by antecedent erroneous assumptions or beliefs or high moral expectations held by one person of another which exceed the requirements of the general law and the prohibition imposed by the statute. In that connection, Robson A-JA in the Court of Appeal spoke of s 52 as making parties “strictly responsible to ensure they did not mislead or deceive their customer or trading partners”. Such language, while no doubt intended to distinguish the necessary elements of misleading or deceptive conduct from those of torts such as deceit, negligence and passing off, may take on a life of its own. It may lead to the imposition of a requirement to volunteer information which travels beyond the statutory duty “to act in a way which does not mislead or deceive”. Cicero, in his famous essay On Duties, seems to have contemplated such a standard when he wrote:
Holding things back does not always amount to concealment; but it does when you want people, for your own profit, to be kept in the dark about something which you know and would be useful for them to know.
It would no doubt be regarded as an unrealistic expectation, inconsistent with the protection of that “superior smartness in dealing” of which Barton J wrote in W Scott, Fell & Co Ltd v Lloyd, that people who hold things back for their own profit are to be regarded as engaging in misleading or deceptive conduct. As Burchett J observed in Poseidon Ltd v Adelaide Petroleum NL, s 52 does not strike at the traditional secretiveness and obliquity of the bargaining process. But his Honour went on to remark that the bargaining process is not to be seen as a licence to deceive, and gave the example of a bargainer who had no intention of contracting on the terms discussed and whose silence was to achieve some undisclosed and ulterior purpose harmful to a competitor.
22However, as a general proposition, s 52 does not require a party to commercial negotiations to volunteer information which will be of assistance to the decision-making of the other party. A fortiori it does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence. Yet that appears to have been, in practical effect, the character of the obligation said to have rested upon Miller in this case.
(Footnotes omitted).

Accordingly, where commercial parties are engaged in commercial negotiations, being parties which are sophisticated, legally represented and have conflicting interests, no obligation of disclosure arises absent any positive inducement. As submitted by HRI, the mere fact that parties are negotiating in a commercial context does not require any party to reveal their hand or positively provide information, which, were the other side labouring under some misapprehension, justified or otherwise.
Whether the alleged representations were made (issue 1)
The question to be determined is whether HRI, by its conduct, represented to Professor Jackson that his employment contract would be extended for five years, and that HRI would finalise and enter into a collaboration agreement with ThromBio or HRI’s conduct, otherwise had an objective tendency to lead Professor Jackson into error about these matters.
Professor Jackson submits that each of the representations was relevantly misleading or deceptive because, in all the circumstances, they induced or were capable of inducing or otherwise had a tendency to lead him into error or gave rise to him having a reasonable expectation that, should the represented facts change, that would be disclosed to him; and the representations did, in fact, lead him into error because, in reliance on those representations, Professor Jackson did not immediately attempt entering into a new employment contract and pursue alternate opportunities.
Did HRI engage in the alleged conduct said to give rise to the representations?
As can be seen from the description of Professor Jackson’s pleaded case, it is imprecise in what the alleged “conduct” said to give rise to the allegations were. It is in part based on the content of conversations as between Professor Jackson and Professor Coats and Mr McGauran and in part based on other conduct.
To set the scene giving rise to the alleged misleading and deceptive conduct, it is worth noting the following undisputed matters.
Professor Jackson’s employment with HRI commenced 1 October 2013 and continued through to 30 June 2024. Professor Jackson held a number of positions: From on or about 1 October 2013 to 30 June 2021 as HRI’s Scientific Director, then, from 1 July 2021 until 30 June 2024, as HRI’s Director of CV Research and the head of its TRG. The terms of Professor Jackson’s employment were governed by a series of successive maximum term contracts of employment:
(a)a contract dated 19 December 2013 for a maximum term commencing from 1 October 2013 until 31 December 2019;
(b)a contract for a maximum term dated 20 December 2019 commencing 1 January 2020 until 31 December 2020;
(c)a contract dated 24 December 2020 for a maximum term commencing from 1 January 2021 to 30 June 2021; and
(d)a contract dated 1 July 2021 for a maximum term commencing from 1 July 2021 until 30 June 2024.
Relevantly, the last, and applicable employment contract, contained a clause, which had the potential to shorten the life of its term earlier than 30 June 2024. Clause 11.1(d) provided that the employment contract could be terminated by either party after 31 December 2021 by giving 4 weeks’ notice if the collaboration agreement was not entered into by 1 December 2021. The deadline to that clause had been extended a number of times. Soon after Mr McGauran became involved in the negotiations, it was agreed that HRI would waive the 4 weeks’ termination provision.
The alleged conduct
The relevant conduct pleaded to give rise to these representations (identified as being ASOC [17]–[25]), included the surrounding circumstances:
Initial discussions
Professor Jackson and Mr McGauran first met in June 2022 at a meeting with Professor Ben Freedman (HRI’s Director of External Affairs). There was no material dispute between them as to the substance of the conversation. It may be accepted, consistent with Professor Jackson’s pleaded case and as deposed by Mr McGauran, that Mr McGauran said that he wanted to get a new employment contract for Professor Jackson and the collaboration agreement with ThromBio sorted out. To the extent that it is relevant, and where it did not ultimately seem to loom large in Professor Jackson’s case, I find that Mr McGauran said to Professor Jackson that he had authority to engage with him regarding his current and future employment. Professor Jackson gave evidence that during the meeting, he communicated to Mr McGauran his feelings of being aggrieved by the former Chair’s behaviour in removing him as Scientific Director. It was apparent that Professor Jackson was not happy about having been denied what he perceived as an adequate opportunity to negotiate his 2021 Contract.
August to October 2022 negotiations of the collaboration agreement and the employment contract
Mr Bush was responsible for driving the process for the negotiation of the collaboration agreement—that was what he was employed to do. It was the evidence of Professor Jackson, Mr McGauran and Professor Coats, that as at August 2022, they understood that the key terms of the draft collaboration agreement had been largely agreed (and, with respect to Mr McGauran and Professor Coats, prior to their involvement). The evidence revealed that both Mr McGauran and Professor Coats had misgivings about the terms of this agreement as early as August 2022. In a text exchange, on 18 August 2022, Mr McGauran shared a text from Professor Jackson with Professor Coats. Professor Jackson asserted that he was happy to hear Professor Coat’s views about the terms of the agreement, but they would not be renegotiating at this stage (given effectively the deal was done) and it would tip Mr Bush over the edge and damage the ThromBio–HRI relationship. In response to Mr McGauran, Professor Coats says “Let’s see” and in response Mr McGauran refers to the view of their “legal advisor” that the agreement reached in principle was “severely detrimental to [HRI’s] interest.
It was Mr McGauran’s evidence, which I accept, that from August 2022, until the meetings in November and December 2022, he was involved in “relationship building” with Professor Jackson. It was his evidence that he “deferred” to Professor Coats, and as Chairman it was not appropriate for him to negotiate directly. It was his evidence that he wanted Professor Coats (not himself) to negotiate, but that Professor Jackson was trying to draw him in in late 2022. I find that this was what was happening. It was evident that Mr McGauran saw Professor Jackson and his work as an enormous asset for HRI and was keen to keep him. It was evident that Mr McGauran was the main proponent, at HRI, for Professor Jackson. It was also evident from the evidence that Professor Coats did not have the same level of enthusiasm. Professor Coats was interested in securing his own tenure and his own position (above that of Professor Jackson). He did this during this relevant period: on 21 November 2022, the Board resolved to amend Professor Coats’ title from Interim Scientific Director to Scientific Director and CEO. Professor Coats gave oral evidence that he could not remember whether he received a new contract, but that, the Board’s resolution changed his title, he was given more responsibilities, but there was no change in his working conditions or pay. On 15 June 2023, Professor Coats’ employment was then made full-time and extended for a further 12-month period. It appears that the HRI Board was already thinking Professor Coats was a longer-term proposition. (which was not known by Professor Jackson).
11 August discussion
On 11 August 2022, Professor Jackson deposed that he had a telephone conversation with Mr McGauran, in which Mr McGauran had said words to the effect of “I apologise for the delay, but I want to get you a new five year contract sorted as soon as possible. I am personally going to take control of the situation and hopefully that will help finalise negotiations very soon”. Against this, Mr McGauran did not recall having a conversation on this date, believed Professor Jackson may have been referring to another conversation the following day, but denied saying “in any telephone conversation in August 2022” that he wanted to get a new five-year contract sorted as soon as possible. He maintained this denial under cross-examination.
I do not accept Mr McGauran’s evidence entirely in this regard. It was clear from what Mr McGauran had said in June that he wanted to get a new employment contract for Professor Jackson and the collaboration agreement with ThromBio sorted out as soon as possible. This position remained throughout 2022. It is my view that it is likely that he would have said that he wanted to get Professor Jackson’s contract sorted out as soon as possible and he was taking control of the situation. However, I do not accept that Professor Jackson has established that Mr McGauran described the contract as a “new five year contract”. None of the contemporaneous documents reveal that there was discussion at that stage as between Mr McGauran, Professor Coats and Professor Jackson about the length of the term of the contract. When questioned about his recollection that a five year term was discussed, Professor Jackson said that he had always been on five year contracts and that he explained that to Mr McGauran and he was happy with that. Professor Jackson’s evidence in chief about this representation does not reveal that, within the context of Professor Jackson explaining that he was always on five year contracts, Mr McGauran said he was happy with that (and in effect made the representation he is alleging). It is my view that Professor Jackson believed this was said because that was the contractual term he had always been on rather than because it was in fact said.
I accept that the proposed collaboration agreement between HRI and ThromBio, as provided to Professor Jackson, in October 2022, proposed a five year term. However, as at August 2022, the evidence reveals that while Mr McGauran was expressing positive sentiments, he was not across the detail at all of either the proposed collaboration agreement (which had not been drafted by Corrs) nor of a new employment contract. Further, this view is consistent with Mr McGauran’s reporting back to the Board in an email on 13 August 2022. In that email, the focus is the collaboration agreement and the issue of extending then current Professor Jackson’s contract, to negotiate it.
On 19 August 2022, there were a series of text message exchanges between Professor Jackson and Mr McGauran regarding the negotiation of the collaboration agreement and the frustration Professor Jackson and Mr Bush were experiencing because of the failure to progress the agreement. Mr McGauran responded that this was a “complex negotiation” of which Professor Coats was “the key to settling” it and that he needed time to meet with the Board’s commercialisation committee. Consistent with Mr McGauran’s email to the Board, of 13 August 2022, the focus was the collaboration agreement.
However, while HRI’s focus was the collaboration agreement, it was clear that Professor Jackson was increasingly seeking to intertwine in the negotiations, the negotiation of his employment contract. This is apparent from the conversation between Professor Jackson and Mr McGauran on 11 August 2022 regarding his employment contract and Professor Jackson’s reference, in his text of 18 August 2022, to “one outstanding issue” that needs resolution.
Professor Coats gave evidence about a discussion with Professor Jackson on 19 August 2022 on a Microsoft Teams Call. Professor Jackson disagreed that during the discussion Professor Coats expressed his view that Professor Jackson’s role should be exclusively as a research group leader at HRI in charge of the TRG. Ultimately, reliance was not placed, in closing submission, on this aspect of the discussion by either party. To the extent that Professor Coats gave evidence, under cross-examination, of Professor Jackson giving him “inconsistent” information during this meeting, Professor Coats gave no evidence of what the “inconsistent” information was, either in his evidence in chief or in his oral testimony. Accordingly, it is not apparent what can be gained by HRI of this ambiguous evidence anyway (noting that they did not seek to rely upon it).
However, what was telling in this aspect of Professor Coats’ oral testimony, was what he said about the positive emails that were sent between the parties on 22 August 2022.
22 August discussion
On 22 August 2022, Professor Jackson wrote to Mr McGauran and Professor Coats, copying in Mr Bush, indicating that he had asked Mr Bush to document the negotiations and to provide them with “constructive feedback” to better understand their challenges in reaching an agreement. Professor Jackson stated that they “remain[ed] committed to getting this agreement finalised ASAP and look forward to further discussions soon”. On the same day, Mr Bush replied that he “echo[’s] Shaun’s point about being committed to a long term and mutually beneficial partnership”. Mr McGauran wrote “This is a welcome expression of commitment” and indicates HRI is in a position to make a decision on the draft collaboration agreement at its next meeting on 19 September. Mr McGauran concluded “you have our goodwill and firm intent to conclude the negotiations in a fair and balanced way which sets us up for a long term future together”. Professor Coats also replied “I support the wish to work on this as quickly as is possible to convert the agreed heads of terms in a formal legal agreement based on the Corrs worked up version.” Professor Jackson then replied that he proposed the next step is for HRI to share with him and Mr Bush the draft agreement from Corrs.
Professor Coats denied in evidence, contrary to what he said in his email, that the next step was for HRI to share the Corrs draft collaboration agreement with Professor Jackson. Rather, he said that the email was just him “being nice”. It was his evidence, under cross-examination, and not as contained in his evidence, that despite what he had said in that email, his view, as at 22 August 2022, was that the next step in the negotiation process, was to “sort out the nexus between Shaun accepting his new contract and the collaboration agreement”. When pressed, he stated that he:
…knew that there was a bigger issue. It wasn’t just getting the final agreement, is that [sic] there was no point in getting a final agreement until Professor Jackson agreed his contract because nothing was going anywhere. …I had enough briefing to know that nothing would be finished until the contract was agreed.
When asked how this was “being nice”, his response was:
I was being nice and going along with the sense that all we need is this, but I was very hesitant that that was, in fact, the truth. I didn’t want to say “No, Professor Jackson. You’re the obstruction.” I did not want to be so rude.
Professor Coats’ evidence continued (when pressed as to whether he had formed a view that Professor Jackson was a problem):
I had already formed a view that something that was very simple had taken over a year and that when I investigated – I wasn’t saying that Professor Jackson was a problem. I’m just saying that Professor Jackson had linked the two things that created a complexity that could only be sorted if both were addressed at the same time.
So when you say were just being nice – or you were being nice, what do you mean by that?— I – I hardly – I had been in the post for a few days. I had not really met Professor Jackson. I didn’t want to accuse him of things by email, text message. You know, I wanted to see if we could work it out. I knew that the issue was not getting a long-form document. The issue was could we agree employment terms with Professor Jackson. I knew that was the issue.
Ultimately, Professor Jackson submitted that Professor Coats’ evidence regarding “being nice” demonstrated a penchant to be misleading or untruthful with Professor Jackson and with respect to matters concerning Professor Jackson when it suited him.
I find that the evidence revealed that Professor Coats was loathe to confront Professor Jackson and was much more circumspect about the terms of the collaboration agreement and the need for the resolution of the employment contract negotiations than anyone else. It is clear from his communications with Mr McGauran that he was not so starry-eyed.
It is my view that, from the beginning, Professor Coats, did want to enter these two contracts, he was being asked to negotiate them, but he wanted them to be on terms (as best they could) that suited what he understood to be in HRI’s interest (and in his interest). I do not accept that he was not a witness of credit or that he was necessarily untruthful in his evidence. But I do accept that he was not forthcoming and up-front with Professor Jackson as to his views. However, regardless of Professor Coats’ view about the importance of the employment contract, the focus of the discussions was the collaboration agreement.
On 25 August 2022, Mr McGauran wrote to Mr Bush, copying in Professor Coats and Professor Jackson, stating that he could not give any new information at this time, but to reassure them “that [HRI] are working on progressing and finalizing the Collaboration Agreement as soon as possible” but that a number of issues have been raised internally at HRI and that further time is needed for consideration and Board approval. He stated that he would call once HRI has reached a fully settled position but that they are working on progressing and finalising the agreement as soon as possible. Mr McGauran concluded that he knew this would be “highly unsatisfactory to Mr Bush and Professor Jackson but that together with other directors, [he] must discharge [his] statutory and fiduciary obligations”.
Then, on 1 September 2022, Mr McGauran and Professor Jackson exchanged text messages about Mr McGauran being unable to meet Professor Jackson that day. The exchange is given in the following terms:
Mr McGauran: Hi Shaun. The inevitable happened and I am caught up with Crown today. Anytime tomorrow no matter how early or late suits me as I have no appointments at all. Even if it’s a drink at your neighbourhood pub. All good otherwise, Ashurst will give you comfort on your contract, we have discussions today with Corrs and the $100,000 payment approved and paper work underway. Again, apologises for the short notice. My life isn’t my own at the moment. Thanks.
Professor Jackson: No problems Peter. Thanks for letting me know. I’m away tomorrow, so we will probably need to catch up next week. Thanks for following on my contract and for sorting out the ongoing funding for ThromBio. One less thing to worry about. Take care Shaun
Mr McGauran deposed that the reference to Ashurst was a reference to Ashurst providing confirmation as to the basis upon which Professor Jackson’s employment contract could now be terminated during the term; it had nothing to do with a new employment contract, and, that the $100,000 was a reference to the grant requested by Professor Jackson from the Jackson lab Funds to ThromBio, which had been approved.
On 2 September 2022, Ms Dwyer, wrote to Professor Jackson confirming that his employment was subject to a maximum term and would expire on 30 June 2024 unless terminated earlier in accordance with the terms of the agreement (namely by the provision of 6 months’ written notice).
The 12/13 September 2022 meeting between Mr McGauran and Professor Jackson
There was no dispute between the parties that Mr McGauran met with Professor Jackson (though the date is disputed) on either 12 or 13 September 2022 (where nothing material arises from this dispute). Mr McGauran accepted that they discussed in general terms that they both wanted to get a new employment contract agreed and get the collaboration agreement finalised. To the extent that anything turns on the difference, from the way that Mr McGauran expressed himself in writing and when giving his evidence, I am persuaded that he reassured Professor Jackson that he was committed to helping him finalise a new contract and resolve the remaining issues related to the collaboration agreement. Mr McGauran, in effect, accepted the same under cross-examination.

On 14 September 2022, Professor Jackson wrote to Mr McGauran in the following terms:
I need to get a clearer understanding on what you think is possible, what Andrew is looking for, and how we develop a structure that works and delivers on shared objectives.
The Balmoral dinner (29 September 2022)
On 29 September 2022, Professor Jackson attended a dinner at the Bathers Pavilion restaurant with Mr McGauran and Professor Coats. During the dinner, it was accepted that the attendees discussed, amongst other things, the collaboration agreement and the extension of Professor Jackson’s employment.
It was Professor Jackson’s evidence that both Professor Coats and Mr McGauran were keen to make sure that HRI had the strongest scientific standing during the merger negotiations and saw his reappointment for a further five years as a strong endorsement of Professor Jackson’s value. Professor Jackson gave this impressionistic understanding of what was said rather than in direct speech. Professor Jackson thereafter deposed that during the conversation they discussed contracts for himself, other key members of TRG, and Professor Coats said words to Professor Jackson to the effect of “I would like to have the contracts finalised by Christmas”.
Under cross-examination, Professor Jackson accepted, his understanding was that, as between himself, Professor Coats and Mr McGauran, the parties were to negotiate in good faith to reach this aspirational outcome but denied that the substance of the discussion was aspirational and was adamant that they represented to him at the dinner that he would be employed by HRI under a new contract.
By contrast, Professor Coats deposed, that during the dinner, there was discussion regarding renewing Professor Jackson’s contract until 2027, being a three-year period following the expiration of his current employment contract, terminating on 30 June 2024. Professor Coats denied discussing a renewal of Professor Jackson’s contract for a further five year period. Professor Coats also denied discussing the employment contracts of other key members of the TRG during the dinner or saying words to the effect of that he would like to have the contracts “finalised by Christmas”. During the dinner, the only discussion was Professor Jackson’s employment contract and intention to have it finalised by Christmas.
Under cross-examination, Professor Coats explained that the discussion at the dinner was predominately focused on Professor Jackson’s employment contract. Professor Coats gave evidence that he saw Professor Jackson’s contract as a three year extension of his existing contract. He gave evidence that he recalled Professor Jackson telling him he wanted a dual reporting line to maintain continuity as far as his employment was concerned.
Mr McGauran also deposed to having attended the dinner. Mr McGauran said that, they discussed at the dinner the HRI and Centenary Institute merger, that Professor Coats did not see a permanent role for himself in the merged entity, and that Mr McGauran would likely remain on the new merged entity Board but not as Chairman. Also discussed was Professor Jackson’s desire to get a new employment contract in for himself, which Professor Coats said he would like to have finalised by Christmas. Mr McGauran also recalled that both he and Professor Coats acknowledged that Professor Jackson was important to HRI’s reputation. Like Professor Coats, Mr McGauran denied that, they discussed contracts for other key members of the Thrombosis group with Professor Jackson, and denied Professor Coats saying he wanted to have “the contracts” finalised by Christmas; also, that Professor Coats or himself said that Professor Jackson’s reappointment for a further five years was linked to the merger discussions; and, that HRI would reappoint him for a further five year period as a strong endorsement of his value and importance to HRI.
Under cross-examination, Mr McGauran accepted that he had a discussion with Professor Jackson about the opportunities and challenges of merging the HRI with the Centenary Institute, a keenness to negotiate a new contract with Professor Jackson, to reset the relationship with the HRI Board. He also recalled that Professor Coats expressed a view he did not see a permanent role for himself in the newly merged HRI Centenary Institute, and that he would remain a board member of the new Institute but not as Chair. He did not accept that discussed was a five year contract nor contracts for other key members of the TRG.
Following the dinner, Professor Jackson emailed Mr McGauran and Professor Coats, stating that “No doubt, there are some tricky things to negotiate through to get a win-win for us all, not least what my job description looks like, now, and post-Andrew’s tenure at the HRI.” In addition, Professor Jackson stated that “ThromBio … adds a bit more spice” to the “tricky things to negotiate through”.
I accept the evidence of Mr McGauran and Professor Coats over that of Professor Jackson regarding the two material disputed aspects of the conversation at the dinner. As to the first disputed matter, I am not satisfied that they discussed his reappointment for a five year term. I do accept the evidence of Mr McGauran that Professor Coats did indicate that he would like to have Professor Jackson’s contract renewed by Christmas. I do not accept Professor Jackson’s recollection on the basis there was no discussion, with any degree of granularity as to the terms of his contract, until November 2022. It is clear from the contemporaneous documents (and, indeed, other submissions made on Professor Jackson’s behalf) that the discussions at this stage were at a high level but also, given Professor Coats’ misgivings, I do not accept, despite him wanting “to be nice”, that he would have a broad assurance about a specific term at this stage. I accept his evidence that he had only recently been employed and was just getting up to speed on the issue. Also, it is clear that he was a shrewd negotiator and slowing things down until he had worked out the lie of the land.
Further, on the second disputed aspect, I do not accept the likelihood of Professor Coats expressing a particular desire regarding the finalisation of the contracts of the other key members. Whilst Professor Jackson mentions them in his email the following day, no confirmation of the desire for renewal is extended to them by Professor Coats. Again, the hesitancy in Professor Coats (and the way he communicated) goes against this.
The same is confirmed by the email of Professor Jackson the following day, 30 September 2022. No mention is made by him of the contractual term. Professor Coats replied that he is “happy to support peter as he works with you on your contract, which we all want renewed”.
Under cross-examination, Professor Jackson was pressed on the contents of these emails. It was put to him that the email suggested an aspiration to achieve renewal—a “want” to renew. To the extent that this was a matter for Professor Jackson to accept, he appeared to accept this, but said, in the context of the follow up email stating “we would like it finalised”, indicated that they were to get it finalised by Christmas. It was repeatedly put to him that the tenor of the discussion and follow up emails were conveying mutual aspiration as opposed to a guarantee of finalisation by Christmas. Professor Jackson appeared to accept this, but in the context of mutual aspiration on those terms in dispute, and that otherwise, the contract would be finalised by the end of the year.
Regardless of his view, the evidence does no more than establish a desire to achieve agreement. I do not accept that the evidence establishes, by conduct, that it was represented to him, either that his contract would be extended by a period of five years or that HRI would finalise and enter into a collaboration agreement. The evidence was, up until this point, that HRI wanted to renew his contract and to enter a collaboration agreement. On Professor Jackson’s pleaded case, the height of the allegation, was that Professor Coats said that he “would like” to have the contracts finalised by Christmas. Even if I am wrong, and I accepted Professor Jackson’s evidence, at its highest regarding the Balmoral discussion, I do not accept that the evidence up until this point establishes the claimed representations (though, I accept that ultimately, I am required to consider the entirety of the pleaded conduct as a whole).
6 October email
On 6 October 2022, Mr McGauran wrote to Professor Jackson, copying in Professor Coats and Mr Bush, stating that HRI was in the final stages of “settling” the collaboration agreement and it would be shared within a fortnight (ASOC [17G]).
As a result of a suggestion by Professor Jackson, weekly catch ups commenced, from on or about 11 October 2022, as between Mr Bush and Professor Coats.
The delay in providing the Corrs draft of the collaboration agreement
On 26 October 2022, Professor Jackson sent a text message to Mr McGauran, in which he conveyed to Mr McGauran what he perceived to be an important issue of the “sensitivity around good Governance around the merger discussions.” The exchange was in the following terms:
Professor Jackson: Hi Peter,
Just letting you know that I’ll dial in to our midday meeting today. Unfortunately, I’m still recovering from surgery and need to take it a little easier, so I’d prefer to not attend in person.
One important issue I wanted to bring to your attention is the sensitivity around good Governance around the merger discussions. I think it would be preferable that the scientists can talk openly and not be constrained by the presence of conflicted Governors. As you know there is currently a lot of sensitivity between HRI group leaders, USyd and RPA. I think many of the scientists would prefer to have frank discussions with the independent Governors, independent of USyd or Hospital-aligned Governors.
I look forward to constructive discussions toddy.
All the best,
Shaun
Mr McGauran: Hi Shaun. I’m not surprised that you are still on the mend. You’re doing well to even be up and mobile. I take your point on the issue of aligned directors. I’ll take advice on the extent to which I can exclude them. USYD is acting in a reprehensibly [sic] in regard to Freda, Anna and John. Appallingly so. Your contribution was most welcome today. You were right in all aspects, except the 2 years. I’ll do it in 1! Best, Peter
On 27 October 2022, Professor Coats emailed Professor Jackson, Mr Bush and Dr Gainsford attaching the “proposed Affiliation [collaboration] agreement and shareholders deed”. Professor Coats wrote “perhaps we could discuss next Tuesday, cheers, Andrew”.
Both Mr Bush and Professor Jackson gave evidence of recalling receipt of the draft collaboration agreement on 27 October 2022 by email. Professor Jackson recalled the key terms of the collaboration agreement. It was his evidence that a very significant issue was apparent for Mr Bush and ThromBio, namely the funding of his lab, and that the “long form of the agreement” did not “reflect what was discussed with Rob McInnes and Stephen Hollings”.
It was Professor Coats’ evidence that he continued to have weekly meetings following this email, where Mr Bush provided Professor Coats with feedback in relation to the agreement.
Events prior to the 21 November 2022 board meeting
What is curious about the weekly meetings as between Professor Coats and Mr Bush, is that there are no contemporaneous records of what was discussed. However, there was no real dispute in this regard. Mr Bush gave evidence that he did not recall whether he raised in those meetings ambiguous parts of the collaboration agreement which caused him concern. Professor Jackson recalled those weekly meetings partly centred around the STARS trial, but also the collaboration agreement. Although, it was Professor Jackson’s evidence that he did not go to some of those meetings, so that Mr Bush could have a full, frank discussion with Professor Coats and not feel that he was “complicating it”. Professor Coats gave evidence that the “more important thing” was the conduct of the STARS trial, as opposed to focusing on the partnership with ThromBio, and the collaboration agreement. However, Professor Coats gave evidence that during those weekly meetings, Mr Bush provided feedback in relation to the collaboration agreement, and there was discussion on terms.
On 11 November 2022, Professor Jackson emailed Professor Coats and Mr Bush, copying in Mr McGauran. In his email, Professor Jackson thanked Professor Coats and Mr Bush for their collective input the previous Tuesday about finalising various agreements “to give comfort to HRI, ThromBio and my lab”. Professor Jackson shared his view that he felt their discussions were “progressing well”, and there was “good alignment” on what they sought to achieve. He noted that they had agreed a deadline by the end of November 2022, and he was happy to meet more frequently to meet that deadline. He expressed the view that the next step was to agree on major outstanding issues and address these the following Tuesday. Professor Jackson asked in that email that Professor Coats provide him in dot point form, a list of points “collectively agreed on my role at HRI moving forward on my authority, budget, reporting lines, etc.”.
It was Mr McGauran’s evidence that despite receiving the email, he was not present at that previous meeting referred to and accepted that he no longer had much involvement insofar as the employment contract discussions were concerned.
Professor Coats did not share Professor Jackson’s view about there having been good progress and good alignment.
On 17 November 2022, there was a text exchange between Professor Jackson and Mr McGauran where Professor Jackson stated:
…
You and I need to have a face-to-face meeting first to make sure we have alignment in our thinking. If not, there is little chance we will come to an agreement over my future role and the commercialisation. I need (and must have) a transparent and trusting relationship with the Chair. It’s the only way we will move this forward constructively.
As I explained to Andrew on Tues, I have been totally honest and sincere in what information I have shared with you both. I can see that I have been telling you things that you may not want to hear, but in the end, it’s better we have a clear understanding of each other’s position on some very tricky issues.
Let me know when we can meet?
This text message is telling in a number of respects. It reveals that Professor Jackson wanted to get the Chair, Mr McGauran, on board. This appeared to be so, because of the apparent divide between himself and Professor Coats and also where he could see, based on the (then) negotiations, that they were not there yet, indeed, a deal on both agreements might not even get there.
Professor Coats provided the requested “dot point” list by email on 18 November 2022, copying in Mr McGauran. That email was in the following terms:
Dear Shaun, thank you for the discussions on Tuesday after our regular Thrombio call. You will remember I had asked you to consider 4 headline items {title, salary, responsibility, support budget) so we could work on a renewed contract for you and you stated you preferred me to look at you old contracts and revert to you, having done that. I have done that and discussed the situation with Peter. We both desire you to stay in a senior position at HRI and to be as proud of working with HRI as we are of having you. Your contracts were initially as Scientific Director and thereafter as Director of CV Research, and you have moved from full-time to 0.8.
I attach a summary of your contracts at HRI (if there are any errors please do let us know) and separately our proposed lead terms for an extended and renewed contract.
As I discussed on Tuesday there are reasons why we would like a revised title for your role which is intended to be as good as the old title, we can be flexible on this matter if you have preferred wording. The matters that are not so flexible are the level of remuneration for 0.8 in this role and the formal reporting lines of the post.
We have a meeting scheduled next Wednesday for Peter and I to meet you.
Have a great week-end and I hope we can settle this matter soon so we can work together on a great future for HRI.
With my best wishes,
Andrew
The attachment included the previous (and proposed) term, titles, reporting lines, location and salary. Upon his reverting, it appeared that Professor Coats was stating that the proposed:
(a)term, was from 2023–2027 (“31/12/2027, within 6 months of the end date parties will enter into negotiations for a new contract, with no obligation on either party to agree such a new agreement”);
(b)title, was “Director of HRI Research at CPC”, but where the contract is only valid if “contemporaneous with signed Collaboration Agreement”;
(c)reporting line, was to “HRI CEO and CPC-Academic Director”;
(d)location, was at the CPC;
(e)FTE, was “0.8 (28/35 hours)”;
(f)gross salary of $603,197; and
(g)research group supports to be “as per HRI regulations and specific support for SS [Associate Professor Simone Schoenwaelder], YY [Dr Yuping Yuan] and IA [Ms Imala Alwis] as stated in existing contract”.
With respect to this evidence, Professor Coats gave oral evidence to the following effect. He understood that remuneration may have been in issue, although he accepted that Professor Jackson had not requested a higher figure. Professor Coats believed that title was a major issue for Professor Jackson. Professor Coats accepted that, by the terms contained in the spreadsheet, he was proposing for Professor Jackson to hold the title of Director of HRI Research at CPC for a term until 31 December 2027, and agreed he had, by that time, modified his position, and was content for an extension of his contract for a period of five years, provided it was signed by the end of the year. Professor Coats agreed he did not say anywhere in his proposal that it needed to be signed by the end of the year.
I do not accept that the fact of the inclusion in this document (the first documentary evidence of a five year term), meant that it ought be accepted that Mr McGauran had “promised” a five year term previously, contrary to Professor Jackson’s closing submission. It is a proposition put by Professor Coats to Mr McGauran and then from Professor Coats to Professor Jackson.
Prior to sending this email to Professor Jackson, Professor Coats wrote to Mr McGauran, expressing his view that Professor Jackson continued to “avoid stating his requirements” and his belief that “his expectations are unrealistic”. Professor Coats’ email to Mr McGauran attached the summary of past key terms and what he proposed and said:
… They are at the top end of comparable positions within Australia for an institute Director role and therefore above any role that is below director level. I do not believe he has a serious offer from anywhere else and I absolutely believe he will never get the level of support elsewhere for his commercial interests that he gets from us, so is is on a very good wicket at HRI, which he will not put at risk, so I believe we should offer something but not too much – ie no more [and] no less than his present contract, and stick with it, no matter how much he blusters and huffs and puffs.
…
Negotiation points for us:
1.It is very generous
2.He is being asked only to work 28 hours per week
3.Thrombio is allowed to operate within HRI supported areas
4.He is being paid the same (or more) than in prior roles where he was full-time with more responsibilities
…
I think if you get a chance to have a quick look at these and we speak tonight you will be better armed for your 1:1 with Shaun on Monday. He will try to negotiate with you behind my back.

It was Professor Coats’ evidence that he told the Board these concerns, not because of, or for a reason which included any belief or suspicion that Professor Jackson could, proposed to or may make a protected disclosure. Professor Coats did not believe that Professor Jackson or Mr Bush had a genuine concern about HRI’s management of the discretionary funding because (a) he had already informed Professor Jackson and Mr Bush that the allocation of top-ups was discretionary and the total amount of top-ups was approved by the Board on a year to year basis; (b) Professor Jackson was himself responsible for approving the allocation and annual sign off on HRI’s annual financial statements during his time as Scientific Director; and (c) top-funding did not roll over multiple years and could be reclaimed if the Scientific Director felt there was a better use of the money. He was not directly challenged on this evidence. In any event, I do not believe that Professor Coats believed that the alleged concerns were genuinely held. This is consistent with the way that he described them to the Board, as only now being raised and in the context of delay and protracted negotiations. For all of the reasons above, I accept that Professor Coats did hold the concerns he expressed to the Board. It is also evident that he was motivated to bring in Professor McMullen.
Professor Jackson made a range of criticisms of Professor Coats’ evidence. To the extent that allegations related to his evidence with respect to the negotiation of the employment contract and the collaboration agreement, I rely on my above findings. Three additional matters, raised in the closing submissions, related to his alleged conduct the subsequent year after the determination of non-renewal in 2023. In addition, criticism was made of his evidence that he denied that he had made the allegation that Professor Jackson had exceeded delegated authority. But no evidence is relied upon by Professor Jackson to prove why his denial was incorrect. Lastly, it was asserted that his evidence relating to a conversation with Professor Jackson in November 2022 ought not be accepted.
For all of the reasons given above, I accept Professor Coats’ evidence as to the absence of a belief or suspicion. I accept that he did not always accurately account to the Board about matters relating to the funding of Professor Jackson’s lab and contractual negotiations. However, for the reasons I have previously stated, I am not satisfied that, these inaccuracies stemmed from a prohibited belief or suspicion. I accept HRI’s submission that this case theory is illogical because much of Professor Coats’ alleged misleading conduct (at the Board meetings in November 2022 and February, April and May 2023) pre-dated the issue of historical transactions being raised in June 2023. Further, and fundamentally, there was no evidence that HRI had any awareness of how much these transactions were worth until after receiving Mr Bush’s paper on 6 July 2023. This thesis ignores the fact that the Board’s concerns regarding Professor Jackon’s employment began around April 2023 but was brought to the fore by the Halstead email in May.
Additional matters raised by Professor Jackson
For the reasons given above, I do not accept that by reason of HRI not calling evidence of legal advice given by Ms Harding and positively asserting privilege over that advice, HRI has failed to discharge its onus. It is open for HRI to maintain a claim of privilege over communications with its legal advisors.
Further, by reason of the reasons given above, I do not accept, that each of the denials of HRI’s witnesses concerning their reasons for supporting the decision not to renew Professor Jackson’s contract, ought not be accepted by reason of the claimed unchallenged evidence and contemporaneous documentary material relied upon by Professor Jackson.
Additionally, Professor Jackson claimed the 15 August 2023 letter from HRI to Professor Jackson was indicative of a flawed human resources process that ought to call into question HRI’s conduct and motives. By letter dated 15 August 2023, Mr McGauran, in his capacity as Chairman of the Board, wrote to Professor Jackson expressing concerns that over the period of the preceding six months, he had not been performing significant parts of his role and that in the course of a financial audit of the STARS trial, it came to light that he had been authorising various expenditures that were beyond the applicable $10,000 of delegated authority that Professor Jackson held. The letter also stated “HRI is not proposing to continue discussions with you about any further employment after the expiry of the Term”, cautioned that if the expressed “concerns are borne out” then his employment for the balance of the term “may be untenable” and requested a written response within 10 calendar days.
It is clear that the Board considered, and resolved, not to renew Professor Jackson’s employment, or more accurately, as already found, not to continue with the negotiation of a new contract. It was clear from the sequence of events, and the content of the 15 August 2023 letter, that the intention of that letter, was to allow Professor Jackson the opportunity to respond to the concerns before HRI made any decision to terminate his employment before the expiry of the contract’s term. I am of the view that, despite this less than orthodox human resources approach, it does not support the adverse inference Professor Jackson submitted should be made.
Whether the claim qualified for protection because it related to personal work-related grievances (issues 12 and 15)
A disclosure is not protected, under Part 9.4AAA, if the information disclosed “concerns a personal work-related grievance of the discloser” and does not concern a contravention, or an alleged contravention, of s 1317AC that involves detriment caused to the discloser or a threat made to the discloser: s 1317AADA(1).
Accordingly, even if it were accepted that the voting directors or Professor Coats believed or suspected that Professor Jackson may or could make a disclosure about historical discretionary transactions, or otherwise about the funding of his lab, the disclosure would not qualify for protection if it constituted a “personal work-related grievance” within the meaning of s 1317AADA.
For the information disclosed to constitute the exception, and be a personal work-related grievance, it must fall within the descriptors prescribed in s 1317AADA(2).
That is:
1317AADA Personal work‑related grievances
(1)Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser) to the extent that the information disclosed:
(a)concerns a personal work‑related grievance of the discloser; and
(b)does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.
Note:A disclosure concerning a personal work‑related grievance that is made to a legal practitioner may qualify for protection under this Part under subsection1317AA(3).
(2)For the purposes of subsection (1), the information disclosed concerns a personal work‑related grievance of the discloser if:
(a)the information concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally; and
(b)the information:
(i)does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and
(ii)does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).
Examples of grievances that may be personal work‑related grievances under paragraph (a) (but subject to paragraph (b)) are as follows:
(a)        an interpersonal conflict between the discloser and another employee;
(b)        a decision relating to the engagement, transfer or promotion of the discloser;
(c)        a decision relating to the terms and conditions of engagement of the discloser;
(d)a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.
HRI contended (and had pleaded) that the information disclosed fell within this exception because Professor Jackson’s and Mr Bush’s querying discretionary funding transactions occurred in the context of the negotiations of Professor Jackson’s employment contract and where issues had been raised with him about concerns Professor Jackson was exceeding his delegated authority.
Ultimately, in closing, there was very little submitted by either party with respect to this issue. By reason of the findings already made, there is no necessity for the Court to decide this issue. Given the limited ventilation of the issue, the Court is loathe to chart new territory on this issue. HRI proceeded on the basis that this issue was determined through the prism of what HRI believed rather than as a matter of fact whether it was established that the information disclosed fell within the exception. No submission was made by Professor Jackson in this respect.
The difficulty, without assistance, is what HRI and Professor Jackson both say based on the evidence was known to HRI relevant to the issue of HRI’s state of mind. The evidence established that the voting directors had different states of knowledge as to what the allegation of the historical transactions meant. Further, the evidence established that they had no knowledge of the quantum of the alleged shortfall. The only person who knew that was Professor Coats. No submission was made by the parties, which assisted the Court in determining, how based on these facts, the Court could be satisfied that HRI believed that the information did or did not have significant implications for HRI.
If it were required that the issue be decided on the objective facts, the Court would accept, on the basis of the above findings, that s 1317AADA(2)(a) was established, that is, the information concerned a grievance about a matter in relation to Professor Jackson’s employment. However, the Court was not assisted as to how, as a matter of fact, it was not information that has significant implications for the regulated entity: s 1317AADA(2)(b)(i). The allegation, as crystallised in Mr Bush’s 6 July 2023 paper, was that HRI had failed to provide agreed financial support to be allocated to Professor Jackson’s discretionary account in 2013 and 2014, amounting to a shortfall of $606,267. The Court was not asked to, nor could determine on the evidence, what the financial status of Professor Jackson’s lab was at the relevant time. Accordingly, it is unclear as to how the Court could come to any concluded view on this issue.
HRI did not hold the belief or suspicion
For the above reasons, HRI has discharged its onus in establishing that none of the voting directors nor Professor Coats held the alleged belief or suspicion.
HRI did not act for a proscribed reason (issue 13)
Further, to the extent that it is necessary, HRI has discharged its onus of establishing that HRI did not act for the prohibited reason.
First, HRI has proven that none of the voting directors nor Professor Coats held the alleged belief or suspicion.
Secondly, for the above reasons, I am of the view that the evidence establishes that Dr Gainsford did not make a material contribution or had a material effect on the Board’s decision on 24 July 2023. I do not accept that the evidence establishes that Dr Gainsford’s state of mind is relevant in determining whether HRI had the proscribed belief or suspicion. Given the same, I do not accept that the Court also should draw any other adverse inference from HRI not calling Dr Gainsford. Even if I were wrong about this, it is my view that even if I were satisfied that an inference could be drawn, I would still be satisfied on the basis of all the other evidence relied upon by HRI that HRI has discharged its onus.
Thirdly, each of the voting directors gave consistent, cogent evidence of their reasons for voting for the 24 July 2023 resolution. As is evident from an assessment of each of their evidence – their reasons differed from one another and reflected their own history of involvement with Professor Jackson, their own expertise and their own differing knowledge and perspectives of the events leading up to the resolution.
Fourthly, for the reasons set out above, I accept Professor Coats’ evidence as to his motivations.
Fifthly, the chronology of events fortifies the evidence of the voting directors and Professor Coats. I do not accept that there was a pivotal point after 11 May 2023 that led to a calculated escalation of matters by a purported contrast to the period before. All was not rosy as at 3 February 2023 – the parties remained in disagreement on material matters concerning Professor Jackson’s future contract. Significant material issues had come to light after 3 February 2023 – the viability of the STARS trial, purported overcommitment of HRI funds to the drug manufacture (where HRI had its own financial strain) and alleged breaches of delegation. On any rational review of the circumstances, the viability of Professor Jackson’s ongoing position, was an issue that needed to be considered from this point on.
The evidence established that the momentum had been building for a very long time as to the viability of Professor Jackson’s further employment. It is evident that the protracted negotiations regarding his future employment had been an issue for the Board in 2022. Professor Coats had his own ambitions and had been interested in getting Professor McMullen from late 2022 (in the knowledge that she would not work with Professor Jackson).
Consistent with this chronology of events, it was evident that many of the voting directors (including Mr McGauran) and Professor Coats had material concerns (which formed part of their reasons) well before any allegation of the prohibited suspicion or belief purportedly becoming known.
This was evident not only from Board minutes but also was illustrated in the unsolicited correspondence Mr Halstead sent to the Board on 8 May 2023 (where there is no allegation of any purported belief or suspicion on the part of HRI at this time).
Sixthly, to the extent that there was any knowledge, by some of the directors about Professor Jackson querying discretionary funding, it is clear that none of the voting directors knew, as at 24 July 2023, what the alleged shortfall was in dollar terms. It was only ever articulated in Mr Bush’s 6 July 2023 to Professor Coats which the voting directors did not receive.
Seventhly, the content of the Options Paper is telling. The potential for Professor Jackson raising historical matters was raised with the Board as a potential consequence of option 1. The evidence reveals that the voting directors had different understandings of what the reference to “historical matters” meant. Regardless, the advice was that there was a potential that by resolving not to renew Professor Jackson’s contract, it would lead to back and forth correspondence for some time (potentially weeks) and could lead to a mediation of the dispute. This illustrated the concern about the consequence of Professor Jackson raising historical matters – further protracted communications and having to deal with the historical matters. Despite this possibility being raised with the Board, the Board resolved to go down a path which would not quell this controversy but would potentially lead to a forum in which it had to be dealt with.
Reasons regarding the privilege claim
Unfortunately, just prior to the start of the hearing, Professor Jackson filed an application for production to inspect certain privileged documents that had been identified in HRI’s verified list of discovery. The application was not brought to the Court’s attention until effectively two and half business days before the hearing was to commence and where Professor Jackson had not filed any submissions in support of that application such that it could not be dealt with other than mid-hearing the next week. The application was then required to be determined in a short period, mid-stream (as it were) so as not to lose the limited time available to complete the evidence. Whilst Professor Jackson accepted that the documents were privileged communications, he claims that that privilege had been waived. The application was heard and Professor Jackson’s application was dismissed on 27 September 2024, where the parties agreed reasons could be given in the final disposition of the matter. These are the short reasons why Professor Jackson’s application failed.
The preservation of legal professional privilege is fundamental to the administration of justice: It promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisors given the law is a complex and complicated disciple and ensuring that clients will make full and frank disclosures to their legal advisers: Grant v Downs [1976] HCA 63; 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ; EssoAustralia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49 at [35] per Gleeson CJ, Gaudron and Gummow JJ. Legal professional privilege protects the confidentiality in the communication. However, a person may assert there has been a waiver of that privilege. The onus lies on the person asserting waiver to establish it has occurred: New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543 at [54]. The question of waiver is determined by identifying whether there has been conduct by the privilege holder inconsistent with the maintenance of the confidentiality: Mann v Carnell [1999] HCA 66; 201 CLR 1 at [23], [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ.
The question therefore to be determined is whether HRI (the privilege holder) made an assertion as part of its case that lays open the privileged documents to scrutiny, because an inconsistency arises between the making of the assertion and the maintenance of the privilege.
The disputed privileged documents fall into three categories:
(a)the notes of Ms Harding (solicitor), Ms Dwyer, Dr Gainsford and Dr Krskova of a meeting between MinterEllison and those persons on 5 July 2023 in relation to Professor Jackson’s employment (Documents 1–4);
(b)the notes of Ms Dwyer, Dr Gainsford, Dr Krskova and Mr Halstead of a meeting between MinterEllison and those persons on 17 July 2023 in relation to the Options Table (Documents 5–8); and
(c)an email from Ms Song of MinterEllison to Ms Harding, copying Mr Fox, regarding a file note of the meeting between the Heart Research Institute and MinterEllison on 17 July 2023 in relation to the Options Table.
Professor Jackson placed reliance upon the following parts of HRI’s evidence, [205]–[222] of Professor Coats’ affidavit affirmed 29 August 2024, [52]–[58] of Mr Boyle’s affidavit affirmed 28 August 2024, [41]–[53] of Mr Pollitt’s affidavit affirmed 28 August 2024, [111]–[112], [117], [119] and [125] of Mr McGauran’s affidavit affirmed 2 September 2024. HRI relied upon the affidavit of Professor Coats affirmed on 20 September 2024.
The determination of whether there has been waiver is highly fact dependent. The Court is required to consider the conduct and determine whether that particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The starting point must be an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material: Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 at [45].

Here, the particular conduct is the reference, by HRI, in order to discharge its onus, to the Options Paper it had received before making its decision (referred to in these reasons above). The relevant portions of HRI’s evidence relied upon by Professor Jackson revealed the following. In early June 2023, Mr McGauran engaged MinterEllison to provide advice as to options in relation to Professor Jackson’s employment. On 13 July 2023, the Options Paper was sent to members of a sub-committee. The sub-committee had been formed to discuss the Options Paper and report back to the Board. A meeting of the sub-committee was held on 19 July 2023. On 19 July 2023, Dr Krskova sent an email to the Board members attaching the Options Paper. On 21 July 2023, all Board members were sent the short report prepared by Ms Dwyer and Dr Gainsford. Professor Boyle, Mr Pollitt and Mr McGauran all gave evidence of receipt of the Options Paper and their views why they voted for the first proposed option to be taken. However, it was clear from the evidence that they each brought their own experience, history of dealings with Professor Jackson and expertise to bear in the determination of the issue and gave different reasons for their decision.
The documents in issue concern notes taken at two meetings between HRI representatives and MinterEllison on 5 and 17 July 2023 as well as an email from an employee of MinterEllison to Ms Harding, copying a MinterEllison partner, attaching a file note of the meeting on 17 July 2023. Only one of the voting directors, Mr Halstead, was in attendance at one of the meetings (on 17 July 2023).
Professor Jackson submitted that HRI, having put its state of mind in issue in submitting that none of its reasons for its decision to not renew Professor Jackson’s contract of employment were for the proscribed (prohibited) ones alleged by Professor Jackson, and, having voluntarily disclosed privilege materials to support that state of mind, cannot otherwise assert privilege over confidential communications associated with the disclosed privileged material. Professor Jackson argued that, HRI was effectively choosing to “cherry-pick” particular privileged documents which do not represent the whole of the material relevant to the issue. It was said that HRI, having disclosed some documents containing legal advice, it will be inconsistent for it to maintain privilege over documents and information considered or provided in formulating, or which underpinned or influenced that advice.
The Court is concerned with the identification of inconsistency with the maintenance of confidentiality which effects a waiver of privilege; not a question of fairness at large. It is not enough that a privileged communication may be relevant to an issue in the proceedings. Here, it is not a case of HRI putting its state of mind in issue, rather HRI has furnished evidence to discharge its onus. It is not enough to say the HRI having disclosed privileged documents in support of its submission as to the reasons of the Board in not renewing Professor Jackson’s contract, that the result is a wholesale inconsistent act of maintaining privilege over the totality of the communications and advice from MinterEllison. Furthermore, as I have stated, I do not consider that any selective forensic ploy has been adopted here at all.
I accept HRI’s submission, that the relevant inconsistency is between the conduct of the client and maintaining confidentiality in the communications in question. This requires careful consideration of the actual conduct of the client. Here, where the relevant conduct was HRI’s reliance on legal advice in its evidence in this proceeding; it is necessary to consider, the purpose for which HRI is relying upon or seeking to use the advice in its evidence in this case. It is then a question of whether the purpose for which it relies on that advice, is inconsistent with maintaining confidentiality in the other documents. Inconsistency may arise if HRI, by that conduct, is making an express or implied assertion about the contents of those other communications, or laying those other communications open to scrutiny. However, this is not what has happened here.
Professor Jackson relied upon a number of authorities where privilege was waived with respect to associated material. However, it is my view that they may be each distinguished from this case. In this case, HRI relies the receipt of the advice as contained in the Options Paper, not with respect to any communications on 5 or 17 July 2023. None of HRI’s witnesses, aside from Professor Coats, rely upon at all, or even refer to the meetings, on 5 or 7 July 2023 about which the file notes are being sought. To the extent that Professor Coats makes reference to the meeting on 17 July 2023, it is for the purpose of describing the occasion of the privilege and does not disclose expressly or impliedly the content of the communications. The Options Paper is not relied upon as if it were an expert report, and where HRI was seeking to maintain privilege over instructions or material influencing that report. HRI’s conduct, is that it relied upon the advice, as contained in that paper, on its face and that was the only purpose for which HRI relied upon that advice. It is my view, that given that purpose, there is no inconsistency between HRI’s conduct and maintaining confidentiality over material or information that may have underpinned that advice as a matter of substance.
In AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30, the legal advice (said to waive associated documents) concerned its claim that it had not breached trade sanctions. The advice was deployed for the purpose of defending the Board from allegations that they had breached trade sanctions in various contexts including in investigations that were being conducted and in communications and discussions with representatives of the Australian Government. The substance or merit of the advice was relied upon to defend the allegations and to foreclose further legal proceedings against them. In that context, the Court reached the conclusion that deploying advice for that purpose was inconsistent with maintaining confidentiality over the material that was taken into account in formulating the advice. This is because it would be inconsistent to ask the Court to accept an opinion, but seek to maintain confidentiality over the material that the expert took into account.
Furthermore, the circumstances here are very different from Thomas v New South Wales [2006] NSWSC 380 (also relied upon by Professor Jackson). That case concerned whether a malicious prosecution proceeding should be transferred from the District Court to the Supreme Court, and the resolution of that substantive issue, depended on whether the amount to be awarded to the plaintiff if successful would exceed a certain monetary threshold (such that the District Court did not have jurisdiction). The plaintiff applied to transfer the proceeding from the District Court to the Supreme Court and in support of that application, put on an affidavit from his solicitor which attached an advice from counsel on quantum. Again, the substance or merit of the advice was being relied upon and was capable of being tested. In that case, it would be inconsistent with relying on the advice for that purpose to maintain confidentiality over the material that gave rise to that advice.
The circumstances of McKenzie v Cash Converters International Ltd [2017] FCA 1564 (one of the authorities relied upon by Professor Jackson) were very different. In McKenzie, the legal advice concerned whether the supplier and the service recipient had acted in good faith in an unconscionable conduct case. Cash Converters sought to rely on numerous advices received from Senior Counsel. Those advices were generated as a result of numerous questions being asked of Senior Counsel by Cash Converters after each received and then answered in further advice. Cash Converters sought to rely on those advices to prove a defence (arising under s 12CC(1) of the Australian Securities and Investments Commission Act 2001 (Cth) that they had acted in good faith because of the receipt of positive opinions about the legality of two aspects of their loan brokerage model. The only purpose for which HRI relies on the legal advice, concerns not its state of mind, rather HRI has furnished evidence to discharge its onus and not the broader question of good faith.
Additionally, it may be noted, though not relevant to the determination of waiver, but which is otherwise relevant to the overall dispute, the fact of the advice, and where it fitted within the evidence, was peripheral to the overall determination of the issues required to be determined in the case. It was not the case that HRI was seeking to rely on the advice to justify the decision it had made – that is, that HRI had received legal advice that it should decide not renew Professor Jackson’s employment. Rather it was given an Options Paper that professed no view as to which outcome should be taken. Furthermore, the voting directors were not privy to the circumstances (save for Mr Halstead, to the extent that he, attended the meeting on 17 July) that had led to its generation and therefore, such that limited reliance could be placed on it per se. None of the voting directors were challenged as to their reasons by reference to any undisclosed legal advice nor the Options Paper (save for Mr Rassi). In that regard, the extent of the challenge, was by reference to an aspect of the Options Paper which appeared on the face of the document. Mr Halstead was not cross-examined at all regarding the meeting on 17 July 2023. Further, it is unclear how the 17 July meeting would have been relevant, when the Options Paper was circulated before then. Indeed, as is evident from the above reasons, each voting director had independent reasons for why they chose to vote in the way that each of them did. Their reasons were largely unchallenged. It is my view, that this was not a case where a party was seeking to deploy, with forensic advantage, a part of an advice. Rather, it appears that HRI’s lawyers have acted responsibly and disclosed this Options Paper, not because it had any great utility in the case, but because it was before the voting directors at the time they made their decision.
Conclusion
Given Professor Jackson has not succeeded with respect to each of his claims, there is no need for me to consider the one aspect of relief that was to be considered together with liability, reinstatement.
For all of the above reasons, Professor Jackson’s application must be dismissed. It is not known whether there will be any application for costs, given the operation of s 1317AH of the Corporations Act. Orders will be made to deal with any such application if made.

I certify that the preceding five hundred and six (506) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.
Associate:
Dated: 2 April 2025

File number:	NSD 773 of 2024
Judgment of:	RAPER J
Date of judgment:	2 April 2025
Catchwords:	CORPORATIONS – whistleblower protections – claim for relief under ss 1317AD and 1317AE of the Corporations Act 2001 (Cth) – whether the respondent engaged in conduct that was a “detriment” within the meaning of s 1317ADA by not renewing the applicant’s employment contract – whether the respondent had the requisite suspicion or belief, under s 1317AD(1)(b), which was the reason, or part of the reason for the detrimental conduct – where the respondent is a company – whether the respondent’s state of mind comprised the voting directors or others with a material contribution to the decision-making process
CONSUMER LAW – misleading and deceptive conduct – where there were negotiations regarding a new employment contract and a collaboration agreement to commercialise a drug – whether the respondent’s conduct had a tendency to lead the applicant to believe that his employment contract would be extended for five years and the respondent would finalise and enter into a commercialisation agreement with the applicant’s entity
EVIDENCE – legal professional privilege – whether legal professional privilege is waived – where privileged documents comprise file notes of legal advisors, employees and directors of respondent from meetings in relation to non-renewal of applicant’s employment contract – whether the respondent has waived privileged over certain advice
Legislation:	Australian Securities and Investments Commission Act 2001 (Cth) s 12CC(1) Corporations Act 2001 (Cth) ss 1317AA, 1317AA(4), 1317AA(5), 1317AADA, 1317AADA(1), 1317AADA(2), 1317AADA(2)(a), 1317AADA(2)(b)(i), 1317AC, 1317AC(1)(c) 1317AD, 1317AD(1), 1317AD(1)(a),1317AD(1)(b)–(c), 1317AD(1)(c), 1317AD(2B), 1317AD(2B)(a)(i), 1317AD(2B)(b), 1317ADA, 1317ADA(b), 1317ADA(j), 1317AE, 1317AH Competition and Consumer Act 2010 (Cth) sch 2 ss 18, 236 Federal Court of Australia Act 1976 (Cth) s 37M Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth)
Cases cited:	Australian Olympic Committee, Inc v Telstra Corporation Ltd [2016] FCA 857 Australian Securities and Investments Commission v Mariner Corporation Ltd [2015] FCA 589; 241 FCR 502 AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408; 48 NSWLR 1 EssoAustralia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; 201 CLR 49 Federal Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 Grant v Downs [1976] HCA 63; 135 CLR 674 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Mann v Carnell [1999] HCA 66; 201 CLR 1 McKenzie v Cash Converters International Ltd [2017] FCA 1564 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; 241 CLR 357 Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 New South Wales v Betfair Pty Ltd [2009] FCAFC 160; 180 FCR 543 Reiche v Neometals Ltd (No 2) [2025] FCA 125 Thomas v New South Wales [2006] NSWSC 380 Watson v Greenwoods & Herbert Smith Freehills Pty Ltd [2023] FCAFC 132; 413 ALR 227
Division:	Fair Work
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	506
Date of hearing:	23 September 2024 to 27 September 2024, 30 September 2024, 2 October 2024 to 4 October 2024, 17 October 2024
Date of last submission:	18 February 2025
Counsel for the Applicant:	Mr D Mahendra with Mr P Boncardo
Solicitor for the Applicant:	Maurice Blackburn
Counsel for the Respondent:	Mr M Seck with Mr D Fuller
Solicitor for the Respondent:	MinterEllison

ORDER MADE BY:	RAPER J
DATE OF ORDER:	2 APRIL 2025