Mount v Dover Castle Metals Pty Ltd

[2025] FCA 101

FEDERAL COURT OF AUSTRALIA

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

File number:

NSD 1099 of 2021

Judgment of:

KATZMANN J

Date of judgment:

21 February 2025

Catchwords:

CORPORATIONS – whistleblower protections – where applicant employed as Chief Executive Officer – where applicant seeks orders against employer, a company, and three of its four directors – where applicant claimed to have made certain disclosures of information to particular directors of company which qualify for protection under Pt 9.4AAA of Corporations Act 2001 (Cth) – where applicant alleges that respondents contravened ss 1317AAE and 1317AC and applied for declarations and pecuniary penalty and compensation orders – where s 1317J limits the classes of persons who may apply for declarations of contraventions, pecuniary penalty or compensation orders and applicant not included – whether applicant had standing to make application

CORPORATIONS – whistleblower protections – where applicant also applied for an order under s 1317AD of Corporations Act and claimed that respondents had engaged in detrimental conduct by terminating his employment and damaging his reputation — whether applicant had reasonable grounds to suspect misconduct or an improper state of affairs in relation to the company – where respondents accepted that some of the disclosures qualify for protection, whether all of them did –– where a shareholder with corporate governance experience participated in discussions with directors, including at board meetings, whether shareholder also an “officer” as defined in s 9 — where one disclosure made to admittedly “eligible recipients” as defined in s 1317AAC and to another found not to satisfy definition, whether the fact that disclosure made to ineligible recipient deprived the disclosure of protection — whether company dismissed applicant because director respondents believed or suspected he had made a disclosure that qualifies for protection under Pt 9.4AAA – where one of director respondents disparaged applicant to certain shareholders, whether director damaged applicant’s reputation – whether damage to reputation may be presumed – if reputational damage established, whether director engaged in disparagement of applicant because he believed or suspected that applicant had made a disclosure that qualifies for protection – where applicant belatedly admitted he had no entitlement to retain company car after dismissed from employment but company’s requests for return of company car following dismissal went unheeded – where director then reported vehicle as stolen and arranged for it to be towed away, whether director’s conduct caused applicant a detriment – if so, whether when director engaged in detrimental conduct he believed or suspected applicant had made a disclosure that qualifies for protection

INDUSTRIAL LAW – wrongful dismissal – where applicant employed under one year fixed term contract – where applicant summarily dismissed after three weeks –whether dismissal wrongful – whether applicant repudiated contract by engaging in serious misconduct – whether employer entitled to rely on conduct occurring after dismissal – where applicant obtained other work after dismissal – where earnings from other work exceeded amount he would have received if he had remained in employment for duration of term, whether applicant suffered loss – whether applicant wholly mitigated loss – whether additional income collateral, unrelated or extraneous to termination of employment

Legislation:

Corporations Act 2001 (Cth) ss 9, 79, 139, 180, 181(1), 182(1), 183(1), 198D, Pt 9.4AAA, 1317AA, 1317AAA, 1317AAB, 1317AAC, 1317AADA, 1317AAE, 1317AB(1), 1317AC, 1317AD, 1317AE, 1317AF, Pt 9.4B, 1317E, 1317J, 1317QE, 1332

Evidence Act 1995 (Cth), ss 64, 136, 140

Fair Work Act 2009 (Cth) Pt 3-1, s 123, 361

Fair Work (Registered Organisations) Act 2009 (Cth) s 337BA(2)

Federal Court of Australia Act 1976 (Cth) s 21

Public Interest Disclosure Act 2013 (Cth) s 173(1)

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

Federal Court Rules 2011 (Cth) r 16.08

Explanatory Memorandum to the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 (Cth)

Revised Explanatory Memorandum to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018

Supplementary Explanatory Memorandum to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Cth)

Report of the Parliamentary Joint Committee on Corporations and Financial Services, Parliament of Australia, Whistleblower Protections (Report, September 2017)

Cases cited:

Arizabaleta v The King [2023] NSWCCA 217

Belbin v Lower Murray Urban and Rural Water Corporation [2021] VSC 535

Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66

Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R 67

Cassimatis v Australian Securities and Investments Commission (2020) 275 FCR 533

CGU Insurance Limited v One.Tel Limited (In Liquidation) (2010) 242 CLR 174

Colin R Price and Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404

Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312; 176 ALR 693; 49 AILR ¶4–436; 103 IR 160

Dedakis v Deligiannis [2024] NSWSC 1018

Edenden v Bignell [2007] NSWSC 1122

Elisha v Vision Australia Limited [2024] HCA 50; (2024) 99 ALJR 171

Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 5 ACSR 424

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89

Fischer v Nemeske Pty Ltd (2016) 257 CLR 615

Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531; 234 IR 1

Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

George v Rockett (1990) 170 CLR 104

Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560

Gianoutsos v Glykis (2006) 65 NSWLR 539

Gore v Australian Securities and Investment Commission (2017) 249 FCR 167

Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271

Kantor v Vosahlo [2004] VSCA 235

Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285

Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 613

Macks v Viscariello (2017) 130 SASR 1

Martin v Norton Rose Fulbright (2021) 289 FCR 369

Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221

Mount v Dover Castle Metals Pty Ltd [2021] FCA 1356

Nece Pty Ltd v Ritek Inc (1997) 24 ACSR 38

North v Television Corporation Ltd (1976) 11 ALR 599

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Palmer Bruyn & Parker Pty Ltd v Parsons [2000] NSWCA 53; Aust Torts Reports ¶81-562

Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; 252 ALR 619; 71 ATR 23

Quinlan v ERM Power Ltd (No 1) [2021] 7 QR 377

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460

Rankin v Marine Power International Pty Ltd [2001] VSC 150; 107 IR 117

Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403

Ryan Mount v Dover Castle Metals Pty Ltd, Matthew Haindl, George Tucker, Simon Tripp [2021] FWC 6043

Serventi v John Holland Group Pty Ltd [2016] FCA 1049; 58 AILR ¶100-527

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357

Smith (in liq) v Bone (2015) 233 FCR 568

Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245

Talacko v Talacko (2021) 272 CLR 478

Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1

Taylor v Oakes Roncoroni & Co [(1922) 127 L.T., at p. 269; 27 Com. Cas., at p. 266]

The Environmental Group Ltd v Bowd [2019] FCA 951;137 ACSR 352

The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 201; [2017] Aust Torts Reports¶ 82–337

Viscariello v Macks [2014] SASC 189; 103 ACS 542

Watson v Foxman (1995) 49 NSWLR 315

Williams v Printers Trade Services (1984) 7 IR 82

Austin RP and Ramsey IM Ford, Austin & Ramsay’s Principles of Corporations Law (LexisNexis, subscription service, last updated November 2024)

Ford HAJ, Principles of Company Law (5^th ed, Butterworths, 1990)

Moss P, Review of the Public Interest Disclosure Act 2013 (Review, July 2016)

Neil I and Chin D, The Modern Contract of Employment (2^nd ed, LawBook Co, 2017)

Pennington R, Pennington’s Company Law, 5^th ed, Butterworths, 1985

Popplewell LJ, “Judging Truth from Memory: The Science”, a speech given to the Commercial Bar Association, 16 November 2023

Ramsay IM, Company Directors: Principles of Law and Corporate Governance (2^nd ed, LexisNexis, 2023), [3.2]

Sappideen C et al., Macken’s Law of Employment (9^th ed, Lawbook Co, 2022)

JJ Spigelman AC, “Truth and the law” in N Perram and R Pepper, The Byers Lectures 2000–2012 (The Federation Press, 2012, p 250)

Spencer Bower G, A Code of the Law of Actionable Defamation, (2^nd ed, Butterworth, 1923)

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

702

Date of hearing:

11-15, 18-22, 25-26 March and 10-11 April 2024

Counsel for the Applicant:

Mr MS White SC with Mr D O’Dowd

Solicitor for the Applicant:

Gillis Delaney Lawyers

Counsel for the Respondents:

Mr SR Meehan SC with Mr G Fredericks

Solicitor for the Respondents:

Paul Almond Employment Law Pty Ltd

Table of Corrections

14 March 2025

In the last sentence of paragraph [2], the words “less than” have been deleted before the words “three weeks”.

ORDERS

NSD 1099 of 2021

BETWEEN:

RYAN MOUNT

Applicant

AND:

DOVER CASTLE METALS PTY LTD

First Respondent

MATTHEW HAINDL

Second Respondent

GEORGE TUCKER (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	KATZMANN J
DATE OF ORDER:	21 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The further amended originating application be dismissed.

2.The question of costs be reserved, to be determined on the papers unless the Court decides otherwise.

3.Any application for costs be filed and served by 4pm on 14 March 2025, supported by any affidavit evidence and submissions.

4.Any affidavit(s) and submissions in response be filed and served by 4pm on 4 April 2025.

5.Any evidence and submissions in reply be filed and served by 4pm on 11 April 2025.

6.No submissions may exceed five pages without the leave of the Court.

7.If no application for costs is made within the time fixed by order 3 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.

INTRODUCTION	[1]
BACKGROUND FACTS	[6]
January – February 2021	[12]
DCM engages FTI Consulting	[12]
Mr Nettelbeck is removed as a director	[13]
Mr Perdikaris joins the board of DCM and enlists the assistance of Mr Mount	[16]
Mr Mount introduces Mr Perdikaris to Resolve Litigation Lawyers	[27]
March 2021	[30]
DCM receives reports from FTI Consulting	[30]
DCM considers hiring Mr Mount	[34]
Mr Mount visits the mine site	[36]
Mr Mount has concerns about DCM’s operation	[39]
Mr Mount attends DCM board meeting	[43]
DCM hires Mr Mount	[45]
Mr Haindl and Mr Mount exchange text messages – alleged safety “incident” raised	[49]
Mr Mount sends First Whistleblower report to Mr Perdikaris and Mr Tripp	[53]
Mr Mount instructs Mr Haindl to suspend operations on the mine site	[55]
Mr Mount instructs Mr Haindl to stop all work at the mine site except for “light camp duties”	[58]
Mr Mount sends Mr Stewart, Mr Perdikaris and Mr Tripp the Second Whistleblower Report	[68]
Mr Mount attends his second board meeting, his first as Acting CEO	[71]
Mr Mount complains about insubordination	[75]
Mr Mount attends his final board meeting	[81]
The day before the meeting	[82]
The day of the meeting	[85]
April 2021	[87]
Mr Perdikaris is removed from the board and Mr Mount’s employment is terminated	[87]
Mr Mount brings proceedings in the Fair Work Commission	[91]
October 2021	[93]
Mr Mount commences court proceedings	[93]
THE WITNESSES	[96]
THE CLAIMS	[108]
THE ISSUES	[110]
PROOF	[114]
THE PROCESS OF EVALUATION	[116]
THE CORPORATIONS ACT CLAIMS	[121]
The legislative framework	[121]
The dispute	[153]
The standing issue (agreed issue 1)	[154]
The s 1317AAE claims:  disclosure of confidential information (agreed issues 3 to 5)	[168]
Did Mr Tripp disclose the relevant information to Mr Haindl? Did Mr Haindl disclose the relevant information to Mr Arthy?	[175]
Did Mr Tripp read or know of the First Whistleblower Report before Mr Haindl’s conversation with Mr Arthy?	[178]
Did Mr Tripp disclose the confidential information to Mr Haindl?	[194]
Did Mr Haindl disclose the confidential information to Mr Arthy?	[207]
The claims	[236]
Which disclosures qualify for protection?	[242]
Were there reasonable grounds to suspect that all the information in the First Whistleblower Report concerned misconduct or an improper state of affairs or circumstances (agreed issue 3)?	[253]
Was Mr Stewart an eligible recipient?  What difference would it make if he were not?	[274]
The disparagement of Mr Mount (agreed issues 8 and 9 and 17 to 20)	[293]
Matthew Azar	[299]
Wayne Clare	[306]
Richard Colreavy	[320]
Freddy Jaja	[330]
Frank Joslin	[346]
Rogan Yates	[348]
Consideration	[352]
The decision to remove Mr Mount (agreed issues 6, 7, 11, and 12 to 14)	[369]
The Issues	[369]
Whose state of mind is attributable to DCM in relation to the decision to terminate Mr Mount contract?	[379]
The evidence upon which DCM relied	[380]
What happened at the 31 March board meeting?	[383]
The termination of Mr Mount’s employment	[436]
Has DCM discharged its onus of proof?	[465]
The demand for the return of the company car and reporting it as stolen (agreed issues 10, 15 and 16)	[545]
Conclusions	[550]
THE CONTRACT CLAIM	[552]
The pleaded case and the dispute (agreed issues 29 to 41)	[552]
The legal principles	[559]
Consideration	[567]
Complicity in removal of Messrs Haindl and Tucker from 31 March board meeting	[568]
The breakdown in the cohesion of the board and senior management	[569]
The Resolve Litigation Lawyers issues (agreed issues 32 to 40)	[570]
The engagement of Resolve (agreed issues 31 to 37)	[570]
Purporting to instruct Resolve on behalf of DCM after Messrs Haindl and Tucker had informed him on 10 April that his engagement had been terminated (agreed issues 38 to 40)	[620]
Disclosing to Mr Perdikaris confidential information of DCM after he knew that Mr Perdikaris had been removed as a director (agreed issue 31)	[630]
Acting at the direction and in the personal interests of Mr Perdikaris in conflict with duties to DCM (agreed issue 41)	[636]
Conclusion	[658]
DAMAGES/COMPENSATION	[659]
The claim for damages for wrongful dismissal	[663]
The scope of the dispute	[667]
The extent of the loss	[671]
OVERALL CONCLUSIONS	[699]
DISPOSITION	[701]

REASONS FOR JUDGMENT

KATZMANN J

INTRODUCTION

1. Dover Castle Metals Pty Ltd (DCM) operates a mine in North Queensland.  On 18 March 2021 Ryan Mount was appointed its Acting Chief Executive Officer for a period of 12 months.  Days before accepting the appointment Mr Mount inspected the mine and identified a number of safety risks.

2. Two days after he started work for DCM, Mr Mount asked for a report on a safety concern from one of the directors who also worked for DCM as a geologist.  He repeated his request on several occasions.  He also issued directions limiting the work that should be performed in order to minimise the risk of injury but those directions were not followed.  He requested the assistance of DCM’s directors and sought their intervention to stop work he had not authorised.  He believed that the company had been mismanaged and that two of its four directors had behaved improperly.  He recorded his opinions in two so-called whistleblower reports which he emailed to the other two directors.  On 4 April 2021 he emailed the directors complaining about the undermining of his authority and the lack of communication, informed them of his obligations concerning health and safety at the mine, and told them that, if workers continued to ignore his directions, he was legally obliged to report the matter and seek the intervention of Resources Safety and Health Queensland.  Within days, DCM summarily terminated his contract — three weeks into its term.

3. In this proceeding Mr Mount sues both DCM and its then directors. He alleges that he was wrongfully dismissed. He also alleges that numerous of his communications including those relating to safety risks at the mine were protected by Pt 9.4AAA of the Corporations Act 2001 (Cth) which DCM and others disclosed in contravention of s 1317AAE of that Act and that he was victimised for making the allegedly protected disclosures in contravention of s 1317AC. He seeks damages for breach of contract, declarations that DCM and its directors contravened ss 1317AAE and 1317AC, and compensation under ss 1317AD and 1317AE on the basis that his contract was terminated because of his disclosures. He also seeks orders under the Corporations Act for exemplary damages and pecuniary penalties.

4. Most of Mr Mount’s claims were hotly contested and the respondents denied he was entitled to any relief.

5. As originally formulated, the originating application and statement of claim included various claims under Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act).  In their defence the respondents denied that Mr Mount was an employee of DCM and Mr Mount discontinued all those claims.  Within a week of the commencement of the trial, however, the respondents filed an amended defence which effectively admitted that Mr Mount was DCM’s employee and in submissions the respondents accepted as much.

   BACKGROUND FACTS

6. Having regard to the way in which the case was pleaded and conducted, a considerable amount of evidence was adduced.  A good deal of it was only of peripheral relevance.  Some matters were the subject of agreement or uncontested evidence.  At this point I turn to the background facts in order to put the issues in context.  I will refer later to other matters of fact upon which the parties agreed only where necessary.  Throughout this judgment, where I make factual assertions, they are about matters which were or became uncontroversial, or they result from my resolution of the issues.

7. DCM was incorporated on 2 June 2014.  It is involved in the business of mineral exploration.  In or about the middle of 2014, it was granted an initial mining exploration licence for a tenement in Far North Queensland.  Since then, it acquired additional mining tenements in the same area.  I will refer to these tenements as the mine or the mine site.

8. On 15 July 2014 Craig Nettelbeck became a director of DCM.  On 16 February 2017 Matthew John Haindl, the second respondent, a project geologist and (like his father, Walter) one of the founders of DCM, was also appointed a director.

9. Additional directors were appointed in 2021.  They were George Tucker, Christos Perdikaris (also known as Chris Perdis), Simon Tripp and Philip Christensen.  Mr Tucker was appointed a director on 5 February 2021, Messrs Perdikaris and Tripp on 8 March 2021.  Messrs Perdikaris, Tripp and Tucker were also shareholders of DCM either directly or as beneficiaries of a bare trust.  Mr Christensen served as managing director of DCM from 3 June 2021 until 27 June 2022.  From time to time he also provided legal services to DCM through his firm, Christensen Legal.

1. In about December 2020 and January 2021 allegations of fraud were made against Mr Nettelbeck.  Mr Haindl contacted Mr Christensen in December 2020 and asked him to do some work in relation to those matters.

2. All the relevant events occurred within the first few months of 2021.

   January – February 2021

   DCM engages FTI Consulting

3. On 13 January DCM engaged FTI Consulting, a firm of forensic accountants, to inquire into the potential misuse of company funds by Mr Nettelbeck and/or others.  Apparently it was Mr Haindl’s idea.  On 22 January Kelly Trenfield, Senior Managing Director of FTI, provided an initial memorandum which DCM passed on to Mr Christensen for advice.

   Mr Nettelbeck is removed as a director

4. On 8 February Mr Nettelbeck was removed as a director by a resolution of the shareholders, presumably on the basis of Mr Christensen’s advice.

5. On 10 February Mr Christensen wrote to Mr Nettelbeck’s lawyer, Wendy Jacobs of Keypoint Law, amongst other things informing her of his removal as a director and the background to it and seeking certain undertakings from Mr Nettelbeck.  Mr Christensen claimed that Mr Nettelbeck had admitted to misappropriation of company funds over a number of years.

6. On 11 February Ms Jacobs responded, refuting the allegations made against Mr Nettelbeck including the assertion that he had made admissions and making allegations of impropriety on the part of Mr Haindl and Mr Tucker.  She attributed the allegations conveyed by Mr Christensen and the consequential actions to an “internal dispute between Mr Haindl and Mr Nettelbeck in relation to other matters”.  Among other things, she alleged that Mr Haindl and Mr Tucker had defamed her client to investors; that Mr Tucker had not been validly appointed as a director; and that Mr Haindl had breached his duties as a director from the time of his appointment.  She also sought undertakings, including from Mr Tucker that “he will not purport to act as a director of the company”.  Both lawyers foreshadowed litigation.

   Mr Perdikaris joins the board of DCM and enlists the assistance of Mr Mount

7. The same day or thereabouts, Messrs Tucker and Haindl informed Mr Perdikaris that Mr Nettelbeck had misappropriated company funds and had been removed as a director.  They said they would make the bank records available so that he could see for himself what had happened and later did so.  Mr Perdikaris became concerned about his investment, which was over $1 million at the time, and proposed to Messrs Tucker and Haindl that he be appointed to the board.

8. On or about 17 February Mr Perdikaris telephoned Mr Mount, whom he had known for years, to see if he was interested in managing the business of DCM.  Apparently the directors were in agreement that the company “could do with a CEO”.  As he had not been appointed to the DCM board and apprehended that Messrs Haindl and Tucker were not inclined to go ahead with his appointment, Mr Perdikaris also asked Mr Mount for advice on how to secure it.

9. Mr Mount is a director of Axiom Mining Limited, a foreign company registered in Australia as a public company.  For about 10 years, until April 2020, he was its Chief Executive Officer.  In that role he was involved in developing mining exploration and mining teams in Asia, Australia and the Pacific; leading and advising on “turnarounds” of mining companies, including in the areas of rebranding, devising business plans and implementing commercial strategies; securing capital; developing relationships with relevant governments in Australia and overseas; and public company and financial regulation.  His work relevantly involved establishing and constructing exploration and mine sites including accommodation and logistics and implementing safety management systems, standard operating procedures, quality assurance and quality controls, including for the physical handling of geological and metallurgical samples and data collection and management.

10. Before working for Axiom, Mr Mount was a stockbroker and corporate advisor.  From about 2007 to 2010 he worked for Yellow Brick Road Securities Ltd.

11. Mr Mount met Mr Perdikaris in about 2006.  Mr Perdikaris was a client of his at Yellow Brick Road and had been a shareholder of Axiom since 2008.

12. After he received the call from Mr Perdikaris on or about 17 February 2021, Mr Mount undertook some preliminary investigations of his own into DCM.  First, he carried out an internet search and examined information about DCM on the register of the Australian Securities and Investments Commission (ASIC) but was unable to find much information from public sources so he asked Mr Perdikaris whether he could send him some information.  On 19 February, in response to that request, he received some documents, including DCM’s constitution, a shareholder register and a copy of a trust deed recording that Mr Tucker held shares on behalf of various other parties (Tucker Bare Trust).

13. On 18 February 2021, Mr Mount provided advice to Mr Perdikaris about how he could “formalise” his appointment to the board of DCM.

14. Mr Mount spoke to Mr Perdikaris again on or about 20 or 21 February, asking him whether he had had “any luck finding any geological report or the like for the project”.  Mr Perdikaris said he had not.

15. Mr Mount and Mr Perdikaris met twice after these conversations, on 22 February at the China Doll restaurant in Woolloomooloo and on 10 March 2021 at the Bathers Pavilion restaurant in Mosman.  At the Bathers Pavilion meeting Mr Perdikaris introduced Mr Mount to Mr Tripp.

16. On 22 February Mr Mount emailed a report on DCM to Mr Perdikaris (for his eyes only) “in reference to the allegations of fraud within the Company”.  The report was based on the publicly available material he had seen.  Mr Mount identified shareholders (commenting on some of them, raising questions from time to time); certain “share issues” including in relation to shareholders’ rights and the Tucker Bare Trust.  Mr Mount professed to be unfamiliar with the concept of a bare trust and considered it “strange”.   I pause to observe that there is nothing unlawful or improper about a bare trust.  Although it has been said that the expression is “plagued by terminological indeterminacy” (Fischer v Nemeske Pty Ltd (2016) 257 CLR 615 at [107] per Gageler J), typically a bare trust is merely a trust in which the trustee “has no interests in the trust assets other than those which exist by reason of the office of trustee and the holding of legal title” and “no active duties to perform other than those which exist by virtue of the office of the trustee, with the result that the [trust] property awaits transfer to the beneficiaries or awaits some other disposition at their direction”: CGU Insurance Limited v One.Tel Limited (In Liquidation) (2010) 242 CLR 174 at [36] (French CJ, Heydon, Crennan, Kiefel and Bell JJ). See also Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281 (Gummow J).

17. The report concluded with two queries:  first, whether each year Mr Perdikaris had been provided with the company accounts and directors’ reports and second, whether Mr Perdikaris had been invited to the annual general meetings.  Three other documents were attached to the email.  They were a draft request to Mr Tucker from Mr Perdikaris’s company, Metohes Pty Ltd, requesting a copy of the register of the Tucker Bare Trust; a draft request from Metohes to DCM for a copy of the share register; and a draft request from Metohes to DCM for a copy of the recent “Financial and Directors Report”.  In the covering email Mr Mount offered some brief advice about how to communicate the requests should Mr Perdikaris decide to make them.  He concluded by saying:

    To be clear, I have had no involvement in Dover Castle & I make no accusations of anyone - I have been requested to provide the attached which I have done.  To the best of my knowledge it is true and I have relied on documents which purport to be true and accurate.

    Mr Mount introduces Mr Perdikaris to Resolve Litigation Lawyers

18. On 24 February Mr Mount sent an email to Nicola Nygh, a solicitor with Resolve Litigation Lawyers, introducing Mr Perdikaris to her.  Ms Nygh had a professional relationship with Mr Mount through Axiom.  The email provided background information, conveyed certain concerns of Mr Perdikaris and explained that Mr Perdikaris had the following “ultimate objective[s]” “in the following order”:

    (1)having himself appointed to the board so that “he [could] have confidence in the information”;

    (2)removing Mr Tucker from the board;

    (3)DCM being converted to a public company so that all shareholders are provided with regular information; and

    (4)returning any monies and assets owing to DCM.

19. Attached to the email were copies of the Tucker Bare Trust deed, the DCM constitution, the ASIC search on DCM, and other ASIC documents relating to the company.

20. The following day, Mr Perdikaris retained the services of Resolve.

    March 2021

    DCM receives reports from FTI Consulting

21. Ms Trenfield provided FTI’s initial report to DCM on 3 March.  The initial report contained a section, then numbered 8, entitled “other matters”, which reads as follows:

    During my review I identified significant brokerage fees incurred by the Company. Payments for those fees were made to related parties in that I have been advised George Tucker is an associate of Sequoia Asset Management. As part of my engagement, and for comparison purposes, I have also been asked to quantify the payments made to Sequoia Asset Management and George Tucker. Below is a table summarising the payments made to these parties:  

Party	Amount Paid ($)
Sequoia Asset Management	219,230.07
George Tucker	476,936.79
Total	696,166.86

Supporting documents uploaded to Xero indicate George Tucker was billing the Company as a Sole Trader under the ABN 97245059011 with a different address and bank details to Sequoia Asset Management.

1. Ms Trenfield sent DCM an amended report on 4 March and FTI’s final report on 9 March.  Neither the amended report nor the final version contained that section 8.  Mr Tucker deposed that he was unaware of, and uninvolved in, any decision or proposal to remove his name from the original report.  Mr Haindl remembered discussing the section with Mr Christensen and Mr Tucker and testified that Mr Christensen had said that it was “basically somewhat irrelevant” and advised that the section be removed.

2. On 4 March an assistant to Mr Perdikaris, Melissa Mason, forwarded to Mr Mount an email chain attaching the amended FTI report.  The email chain included emails from Ms Trenfield to Mr Haindl and Mr Christensen referring to the initial report, and a subsequent email from Ms Trenfield to Mr Haindl and Mr Christensen containing the amended report.

3. Later that day, Mr Perdikaris’s wife, Cindy Perdikaris, sent Mr Mount an email attaching a copy of DCM’s share register.

   DCM considers hiring Mr Mount

4. As I mentioned earlier, on 8 March Mr Tripp and Mr Perdikaris were appointed directors of DCM.  At lunch that day Mr Perdikaris promoted to Mr Tripp the possibility of Mr Mount being offered a role as CEO of DCM in the wake of Mr Nettelbeck’s removal.  Mr Tripp expressed concerns about Mr Mount’s reputation.

5. At the meeting at the Bathers Pavilion on 10 March, there was a discussion about Mr Mount’s appointment as CEO of DCM following which Mr Mount agreed to “come on board”.  Mr Tripp was satisfied he would be able to do the job.  That evening Mr Mount received phone calls from Mr Haindl and Mr Tucker.  The following day Mr Haindl sent Mr Mount a report to shareholders dated 15 December 2020.

   Mr Mount visits the mine site

6. On 13 and 14 March Mr Mount visited the mine site at Mr Perdikaris’s expense and inspected the tenements.  On each occasion he was met by Mr Haindl.  Mr Haindl accompanied Mr Mount on a tour of the site.  Mr Mount took photographs and made notes of his observations.  He also asked Mr Haindl numerous questions.  On 14 March Mr Mount started recording some of their conversations, albeit without Mr Haindl’s knowledge.  When asked why in cross-examination he said he was “very concerned” about what he had seen the previous day, “felt that there was something very amiss”, and “wanted to protect [himself]” from the possibility of “being involved in a scam”.

7. During the tour of the site Mr Mount noticed a number of “historical mine shafts”, none of which were barricaded or fenced; old, weathered, sample bags lying around; and a number of uncapped drill holes, most of which were also “missing their tagging and pegging”.  He also observed that Mr Haindl was not wearing a seatbelt and drove at a speed of 20 kilometres an hour despite the fact that the speed limit identified in the induction document was 10 kilometres an hour.  When they stopped at the site of parts of a mill or processing plant, Mr Mount observed that a lot of the equipment seemed old and rusty and that it was not arranged in an orderly way in preparation for installation, even in the workshop area.  He concluded that construction had not progressed for an extended period of time.  When he asked Mr Haindl when construction would be complete and the mill commissioned, he was assured “it will be June or July” but “definitely by July”.  Mr Mount also expressed concerns about a waterway running towards the plant area, which could affect “environmental approvals”, and a donga (a modular transportable building) said to accommodate Matthew Hancock, who worked for DCM at the site, apparently being used as a storage facility.  In the donga he had been assigned, Mr Mount saw, among other things, a gun safe and, when he questioned Mr Haindl about the use of guns on the site, he was told that they had been used by Mr Nettelbeck and that “some of the boys just like to do some shooting”.  He perceived the presence of guns on the site to be a safety risk, especially in circumstances where alcohol was permitted to be consumed there.

8. When Mr Mount asked Mr Haindl whether he or DCM had “a defined exploration objective or strategy”, Mr Haindl replied “not really”.  When Mr Mount asked Mr Haindl to show him the financial model and business plan, he could not produce one.

   Mr Mount has concerns about DCM’s operation

9. The site visit caused Mr Mount numerous concerns.  As he put it in his affidavit, they were:

   (a)The wrong assay method had been used for many years in relation to something as important as mineral exploration and expensive drilling costing millions of dollars;

   (b)      There were issues with safety, including:

   i.That the site induction was not readily available on his arrival;

   ii.A lack of fencing and barricades around mine shafts;

   iii.Drinking of alcohol, including in and around motor vehicles;

   iv.Gun storage at the Site, considering that alcohol was also drunk at the Site;

   v.Lack of a site map;

   vi.Lack of information about the telephone number for the satellite phone;

   vii.Missing keys, and no clear plan or arrangement for how keys should be stored (such as a key box or register for keys);

   viii.Significant non-compliance with the site induction rules, including by driving faster than the published speed limit and not wearing a seatbelt, which, while minor in itself, caused concern that safety plans generally might be on paper only rather than as actual protocols which were intended to be implemented in practice and breaches of other parts of the site induction booklet such as but not limited to ‘warning signs’, ‘gloves’, ‘Housekeeping on Site’ and ‘Housekeeping at the Camp’;

   ix.General lack of organisation, such as missing keys, confusion over whether or not gates were locked, sample bags lying around, lack of cleanliness at the camp, lack of information about who would be working on Site or directing workers, which could indicate an overly relaxed attitude towards issues generally;

   (c)The mill/processing plant was being built by a waterway, with potential environmental impacts and ramifications for environmental approvals;

   (d)The mill/processing plant was supposed to be commissioned for commercial production in June or July 2021, but:

   i.It was still under construction and did not appear to have been worked on for an extended period of time;

   ii.The plant site was not in an ordered state, which caused me to perceive that there may not be a clear person responsible for what was happening there;

   iii.There was no clear timeframe of when the equipment would be delivered, or clarity about what was causing delay in its delivery;

   iv.Mr Haindl had not been able to tell him about the required permits and licenses for production to commence;

   (e)Mr Haindl did not have knowledge about matters relevant to the viability of the business including:

   i.Why nearby companies had failed in their businesses;

   ii.Whether tin porphyry or tin tailings were being mined in Australia;

   iii.Data about the drilling campaigns;

   iv.What permits or licenses were required for commercial production;

   v.Lack of exploration plan and exploration strategy;

   vi.Lack of business plan.

   (f)The existing samples had not been safely and securely stored in an orderly manner and some samples were left out exposed to the weather for a prolonged period of time, which would impact on the ability of Dover to re-assay those samples;

   (g)There was a greater risk of technical breaches in circumstances where the previous managing director had been removed from his role due to allegations of fraud;

   (h)      There was unnecessary spending, such as:

   i.Hiring a rental car — specifically, a Landcruiser which I understood to be an expensive option - rather than utilising one of the vehicles already owned by Dover, even though the rental car had minimal use during his time at the Site; and

   ii.Building a camp at the Site rather than using cheaper rental accommodation on a neighbouring property, although I did not have specific figures where Mr Haindl had not told him the construction cost or maintenance;

   (i)Mr Haindl seemed to have answered some of his questions in a manner that seemed to be evasive or intended to obscure the truth, including:

   i.When he told him that all of the raw samples were stored securely and away from the elements, even though I observed that this was not the case;

   ii.When he told him that he would have geological data formatted in software available for him to view overnight, when this did not occur;

   iii.When he was unable to provide information about the construction or maintenance costs of the camp;

   iv.When he told him that Dover had received $150,000 from the Queensland government as a grant, and then, after questions, said that Dover had not yet received the grant money as they were waiting on a report which was to be submitted on Monday;

   v.His general demeanour and body language as set out above in response to his questions;

   (j)That, so far as I could tell from his questions, there did not appear to be sufficient data to support some of the claims being made to shareholders about whether the proposed mining operation at the Site was commercially viable or the timelines for commercial production.

10. That evening Mr Haindl provided Mr Mount with a number of the documents he had requested, including a financial model.  Mr Mount considered that the financial model was incomplete because it was “mostly devoid of any numbers” and was “lacking the inputs” of costs.  He also noted that it did not include a business plan, a JORC resource estimate report or a map of the site.  I interpolate that JORC is an acronym for Joint Ore Reserve Committee, the governing body for reporting standards for resources and reserve calculations.  A JORC report is a report prepared in accordance with the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves.

1. In an email an hour and a half later, Mr Mount offered a number of “ideas/suggestions” for Mr Haindl to consider, which he later forwarded separately to Mr Perdikaris and Luke Stewart.  Mr Stewart, was the CEO of an environmental consultancy, EMM Consulting Pty Ltd.  He was introduced to Mr Tucker in 2015 after which he decided to purchase shares in DCM.  He was contacted by Mr Tucker in about January 2021 to provide assistance to DCM after the departure of Mr Nettelbeck.  At all relevant times he attended DCM board meetings but, on his account, which I accept, was not then a party to any decisions of the board.

2. On 16 March, in response to Mr Mount’s request, Mr Haindl sent Mr Mount a copy of a “maiden” JORC Resource Estimate Report dated 7 May 2018 but representing the position as at December 2017.  Aspects of that report caused Mr Mount concerns about the quality of the data held by DCM “and the risk that there were misjudgments of technical aspects of the exploration program which adversely impacted the capacity of [DCM] to assess the project’s potential”.

   Mr Mount attends DCM board meeting

3. On 17 March Mr Mount attended a DCM board meeting at Mr Perdikaris’s house.  Mr Haindl, Mr Perdikaris, Mr Stewart, Mr Tripp and Mr Tucker also attended the meeting.  During the meeting various matters were discussed and Mr Mount was questioned about his experience, strengths and connections in the mining industry.  The board agreed in principle to hire Mr Mount on terms he proposed.

4. At that meeting Mr Mount disclosed to the board that he was an advisor to Mr Perdikaris.  Neither at that meeting nor any other time before or after he started work for DCM, however, did he or Mr Perdikaris disclose to the other directors that Mr Perdikaris had the objective of securing Mr Tucker’s removal as a director or that Mr Perdikaris had sought or obtained advice from Resolve in furtherance of that objective.

   DCM hires Mr Mount

5. DCM engaged Mr Mount as its Acting CEO on 18 March and Mr Mount began work for the company the same day.  The parties agreed that “written terms” were as set out in an email Mr Mount sent to the directors that day:

   - fixed term agreement (12 months)

   - $20k / month via either employment agreement or service agreement (TBA)

   - all usual employment conditions - e.g. workers comp/insurance, sick, annual leave - Mon-Fri 830 - 5pm however it is expected of CEO’s to work reasonable extra hrs, if required, and at varied times including sometimes on weekends - with no overtime claimed; when on site, work hrs are 6am to 6pm (or all of day-light)

   - standard clauses of good faith, no conflicts, confidentiality etc

   - work out of office in Sydney however it is expected of [Mount] to travel to QLD (particularly Brisbane and the project sites), and generally anywhere in Australia, if required by the business.

   - full provision of the company car; and work related costs associated to it.

   - If significant value-adding milestones have been achieved in the business this year, it would be appreciated that a discussion on potential introduction to equity would be had with the Board.

6. The following day, 19 March, Mr Tucker provided Mr Mount with a company car.

7. Although a written contract was anticipated, Mr Perdikaris asked Mr Stewart to assist in the preparation of an employment contract, and Mr Stewart agreed to do so, none was forthcoming.

8. During the time he worked for DCM, Mr Mount did not work for any other company or person except for about an hour of unpaid work he did for Axiom in his role as a director.

   Mr Haindl and Mr Mount exchange text messages – alleged safety “incident” raised

9. On 19 March, there was an exchange of texts between Mr Haindl and Mr Mount.  Mr Haindl informed Mr Mount he had made arrangements for his brother, James, who also performed work for DCM, to travel to Cairns to purchase some hardware, as he would otherwise be alone on the site overnight and that “[w]e need to work out rosters so no one is at the mine alone”.  Henceforth, I will continue to refer to Matthew Haindl as Mr Haindl unless it is necessary to distinguish between him and his brother.  At 2.11pm the following day, 20 March, Mr Mount sent Mr Haindl an email in the following terms:

   Referring to our SMS text exchange last night can you please provide me with a safety incident report.  If Dover does not have a template or procedure for reporting the occurrence, can you, in this instance, provide me with all of the facts of the situation including recommended remedies to the situation.

10. About half an hour later Mr Mount emailed Messrs Haindl, Perdikaris, Tripp and Tucker, copying in Mr Stewart, reporting on the events the previous day in which, among other things, he said:

    There was a minor safety incident last night.  I have requested a safety incident report.

11. At 8.44pm on 21 March Mr Mount emailed Mr Haindl reiterating the need for “the incident report re Friday night safety situation/concern”.

12. At 5.43am on 22 March Mr Haindl emailed Mr Mount, relevantly expressing uncertainty about the “incident”, asking whether it was his “concern of having people alone at the mine”.  In his reply, sent at 6.28am (copied to Messrs Perdikaris, Tucker, Stewart, Hancock and Tripp), Mr Mount confirmed that it was:

    Yes, your concern for him being alone on Friday night is considered a safety incident. It needs to be written up, sent to me. From there we will review the situation, and take any actions needed to ensure our personnel are safe.

    Mr Mount sends First Whistleblower report to Mr Perdikaris and Mr Tripp

13. At 8.58am the same day (four days after he started work) Mr Mount sent an email to Mr Perdikaris and Mr Tripp headed “Confidential report to new directors – subject to Whistle‑blower Protection Act”, attaching what was said to be the First Whistleblower Report, though not the first allegedly protected disclosure.  The report began as follows:

    It has become apparent to me that there is widespread fraud in the business.

    I provide you this report to make you aware of some urgent and critical matters.

    This report is by no means complete in the sense that this is all that I am aware of, or suspect; sadly, there are so many ‘red flags’ or blatant breaches of the law, ethics and general/basic business functions, that I need more time to investigate so to factually report to you (and at the same time keep the wheels turning with the business!)

    In light of the situation of that you are in as new directors, in what I believe is trying to do the honourable thing and save the company, by putting it back on a proper path and especially that you intend to raise capital, I hereby make you aware of the following, under my rights of the Whistleblower Act[.]

    (Original emphasis.)

14. Mr Mount proceeded to make allegations of improper conduct, negligence and/or incompetence against Mr Haindl, Mr Nettelbeck and Mr Tucker.

    Mr Mount instructs Mr Haindl to suspend operations on the mine site

15. At 9.09am Mr Mount emailed Mr Haindl asking him to suspend operations on the site.  The email reads:

    What we need in the very first instance is the following:

    - All correspondence between you and ALS re sampling / assaying problem - LIDAR and drone results for the legacy dumps volume/Tonnage (feedstock for phase 1) & any other survey and geological testing reflecting the value(s) and size(s) of the historical legacy dumps - Safety incident report (from Friday night).

    - List of all permit and licences for the commercial mining and processing (have requested this five times)

    - What component of the processing plant(s) are not currently on site; if they are not on site are they available now to be transported to site.

    - List of companies who applied for the Kaboora tenement Can you please compile this for me in professional format this morning, and put on a hard drive for my collection.  This will need to be a priority.

    Separately, Can you suspend operations on site (say until Thursday's board meeting), and have James cut some copies of the keys for all of the project sites.

16. At about 11.00am Mr Mount met with Mr Perdikaris and Mr Tripp at Mr Perdikaris’s home.  Mr Perdikaris’s evidence is that he called the meeting in order to discuss the First Whistleblower Report.  As will be seen, the weight of the evidence is that the meeting was arranged before the First Whistleblower Report was circulated and for a different purpose.

17. At 11.36am Mr Haindl sent Mr Mount a report on the safety incident.  This was his description of the incident (without alteration):

    Concern was raised over staff being alone at the mine site.  The Dover Castle mine site is very remote.  Steps have always been taken and safety procedures have been in place to minimise potential risks on site.  One in the past has always been the supervision of staff on site being never work in a remote location alone.

    Mr Mount instructs Mr Haindl to stop all work at the mine site except for “light camp duties”

18. At 3.21pm Mr Mount sent an email to Mr Haindl in which, among other things, he requested that work at the site cease “apart from light camp duties”.  The substance of the email reads as follows (errors in original):

    As just discussed let’s cease any work at site at the moment; as I understand it there is James and two others at camp working on rehab and garnet blasting.

    - lets focus the company’s energies on the reports needed for the next board meeting.

    - Not having work on our project site this week reduces our risk and any potential safety risk to our stakeholders.

    - I think it is well worth leaving Micheal Arthy’s two guys at site, with enough rations for the week but they are to do only light duties around the camp only and to not take an safety risks.

    - James can travel back to Sydney to assist you with any work he can help you with. James can also bring a copy of ALL keys for our project site(s).

    - If we are concerned of theft maybe leave the vehicles and XRF’s at the previous accommodation you mentioned (a school or caravan park in Petford?) This may not be needed.

    Chris, mentioned to me you are working on a feasibility study for tomorrow, so you can focus your energies on this and the key items I requested this morning (some of which conveniently feeds into the FS).

    I won’t come by the office this afternoon so to leave you to your work; and will come by after the you get though the above, sometime tomorrow midday/PM.

    I am available if required.

19. Michael Arthy was an earthmoving contractor.

20. At 4.02pm Mr Haindl replied.  He informed Mr Mount that he would tell staff at the site to cease work with the exception of Mr Arthy’s “two guys” and “get James” to return the keys to Sydney and prepare an inventory of the “gear waiting to be floated to site”.

21. At 5.48pm Mr Mount sent an email to James Haindl, copying Matthew, instructing James that the employees of Arthy Earthmoving on the DCM site that week should be “on light camp duties only (essentially security)”, limited to checking the plant a few times a day but most other times remaining “camp bound”.

22. At 8.24pm Matthew Haindl emailed Mr Mount, saying:

    As discussed the painters will stay to finish their second coat of paint on machinery awaiting to be finished and Michael’s men will finish the week

23. At 8.30pm, Mr Mount replied (copying Messrs Perdikaris, Tucker, Stewart and Tripp):

    Confirming the painters will finish that second coat tomorrow and Michael Arthy’s boys will only be on light duties in the camp. not taking any safety risks.

24. At 8.34pm Mr Mount replied to the 11.36am email to Matthew Haindl saying that he would defer discussion and review of the safety issue until the end of the week.

25. At 7.15pm the next day, 23 March, Mr Mount received an email from James Haindl, referring to a worker having “water-blasted camp roofs” and preparations for “sand blasting in the morning”, which led Mr Mount to believe that his direction to do light duties only was not being followed.

26. At 9.48pm Mr Mount emailed the Haindl brothers in the following terms:

    I am quite surprised this type of work occurring. I recall only authorising the painting of the second coat and that there only be light duties around the camp.

    There MUST not be any work other than light duties in the camp until the end of the week. Please ensure there is now deviation from this.”

27. At 9.58pm he forwarded the email to DCM’s directors, copying Messrs Haindl and Stewart, and wrote:

    It appears that unauthorised work is occurring at our project site.

    Our site is a particularly high risk project site with serious lack of safety protocols.

    We are under-resourced and there appears to be contractors/employees(?)/stakeholders under “pressure”.

    It is important staff safety be prioritised. As such I seek your assistance and intervention in this situation.

    I am available any time tonight to speak with you if required.

    Mr Mount sends Mr Stewart, Mr Perdikaris and Mr Tripp the Second Whistleblower Report

28. At 10.58pm Mr Mount sent an email to Messrs Stewart, Perdikaris and Tripp, attaching a further document titled “Report to new directors of Dover”, said to be the Second Whistleblower Report, which was in substantially the same terms as the First Whistleblower Report.  In the covering email he wrote:

    There are significant safety risks with the Dover Mining Lease area - winding down this week’s work up there is to prevent incidents in [light] of the apparent stress our organisation is under and the lack of proper site management.

    Our contractor Michael Arthy has reported that he has been rang twice today by Matt Haindl stating I have passed on information that Arthy reported to the company in confidence of the instances of fraud and inappropriate conduct of contractors/employees in the area of our projects. Arthy very concerned.

    This is not conducive to keeping the site settled and minimising risk at site.

    The focus should be on employee safety, reorganising the company in a proper manner, finance and obtaining the reports relied upon for project development.

    I am not accusing any of you of breaching the legal confidence of my report or anything improper but it does seem strange that Arthy was integrated by Matt Haindl as to the specific details of my report the very next day I released the details to you.

    Indeed it is sad that the very person who has been honest with us and divulged important and legally protected information is the person we have asked to go on to site this week and protect our assets.

    I am trying to prevent tensions from being transferred from Sydney to our project site, so as to avoid safety risks, accidents and potential theft at our project site - I am concerned that the Board and management are not united on at least matters of law (as to site management and whistleblower rights), then there will be further destruction of shareholder value and harm to people involved at our project site.

    I provide you an updated report (attached) - the original report had me working through to 3am on Sunday, in an attempt to get you at least something ASAP but as such I made a few mistakes along the way, but only minor ones.

    Whilst the report is daunting I do remain positive on the tenements and am keen to move forward with a clear strategy.

    I am available to meet or speak with you on any of these matters.

    I interpolate that the assertions made in the second paragraph of the covering email were not proven to be correct.

29. The next day, 24 March, at 8.30am Mr Haindl replied to Mr Mount’s email of 9.58pm the previous night asking him to “outline exactly what” Mr Mount’s safety concerns were.

30. That day a meeting was held at Mr Perdikaris’s house at his request.  Mr Perdikaris sent an email to Mr Tripp and Mr Stewart in the early hours of the morning asking them to attend and they did.  Despite the allegation in para 73 of the further amended statement of claim, no witness gave evidence that Mr Haindl attended the meeting.  The email reads:

    Morning guys

    I’ve just woken up to the email from last night from mount. (fraud)

    I need some guidance pls on this . Can we pls meet today ?

    I haven’t asked for anything . I’m asking this I I’ve never had to deal with stuff like this whistleblower can we not talk with george or Haindl ?

    I did not have anything to do with that email !!

    I’m out between 6:00am and 7:30 am at this stage .

    Mr Mount attends his second board meeting, his first as Acting CEO

31. On 25 March Mr Mount, Messrs Tucker, Haindl, Tripp, Perdikaris, Hancock, and Stewart, attended a meeting at Mr Perdikaris’s house, which was sound recorded.  At that board meeting, Mr Haindl and Mr Hancock delivered a presentation on DCM’s business activities.  At the beginning of the meeting, Mr Stewart asked the attendees whether they had any further disclosures in addition to the matters they had disclosed at the 17 March board meeting.  Mr Hancock indicated that he needed to address certain issues.

32. During the meeting (apparently in the absence of Mr Mount), Messrs Tucker, Perdikaris and Stewart discussed matters relating to the timing and requirements for capital raising.  Mr Tucker expressed the view that the information available to the board was “more than enough” to approach shareholders in order to raise capital.  Mr Perdikaris suggested approaching shareholders to inform them that DCM was “out of money”.  Mr Tucker opposed that course, saying that was “exactly what we don’t want to say” and that “[i]f we say we’re running out, that’s when the sharks arrive, right?”  Mr Perdikaris complained about the state of the company’s financial documentation, saying “[w]e’re paying people money and right now the invoices I’ve seen horrify me.  There’s no description on those invoices of what’s been done.”

33. When Mr Mount returned to the meeting, he emphasised that he wanted a list of everything necessary to get the mine to commercial production, legal and regulatory requirements, and proper documentation about the company’s expenses.   He expressed concerns about making representations to third parties about the company’s financial position without having written evidence to support those claims.  Towards the end of the meeting, Mr Perdikaris told Mr Mount that he needed to show “a certain level of respect” to the directors and that Mr Mount’s conduct was “too much too early in that first week”.  The directors also signed a letter engaging McInnes Wilson Lawyers to provide advice about a possible claim against Logicca, the company’s former accountants and auditors.

34. During the board meeting Mr Mount emailed the Second Whistleblower Report to Ms Nygh.  At the same time, he forwarded to her the covering email he sent to Messrs Stewart, Perdikaris and Tripp at 10.58pm on 23 March.

    Mr Mount complains about insubordination

35. On 26 March at 11.17am Mr Mount emailed all the DCM directors stating that it was “great to see the Board meeting regularly”, that “[o]ne very important matter we need immediate resolution on is the activity occurring at the project site; subsequent to this the organisational structure and my authority needs to be made clear to the whole organisation”.  Mr Mount also alleged in the email that there was “distinct insubordination or a miss‑understanding of the CEO’s authority” that needed rectification.  He attached a document entitled “Health & Safety – a quick review”.

36. At 11.26am Matthew Haindl replied to Mr Mount, copying the other directors, asking for details of the alleged insubordination.  Mr Mount responded at 12.23pm in the following terms:

    You rang me on Monday seeking permission for the only work to be done on the project site this week to be the painting which was to be finished the following day (Tuesday).

    Since then I am hearing that there is significant work occurring including with heavy machinery and fuel tankers arriving; I have not received the agreement basic reporting, etc.

    If we had agreed to this on Monday why is there all this other work occurring ?

    Furthermore, there is no money left, and unless there is a proper finance plan in place we cannot legally be making any spending on discretionary items.

    The whole feasibility study process is a resource draining process for all juniors and we have a fair bit more pressure than the usual junior miner at the moment, so lets reduce work where it is not critical so to focus on the critical path elements to survival..

1. At 12.09pm Mr Mount sent an email to Mr Haindl about arrangements for producing a feasibility study.  He suggested they have a phone call to discuss, among other things, “what is achievable in a reasonable time frame under the current circumstances that would reflect a [feasibility study] and/or a basis to commit spend to construct and commissioning” and what information was “missing” from the feasibility study.  At 12.12pm, Mr Mount forwarded the email to Mr Perdikaris and Mr Stewart saying that he had left Mr Haindl a voicemail asking him to call back to discuss the feasibility study.

2. At 12.45pm Mr Tucker replied to Mr Mount’s email of 11.17am in the following terms:

   I apologise for not responding to my Dover Castle email address in the past I need to get it set up on my phone, so will get that done over the next day or so.
   In relation the email body Ryan I thought it was established yesterday that Matt Hancock will manage the mine site.
   He is the Assets and Site Operations Manager a similar role to the one he had at Newmont so he is clearly capable of managing that responsibility.
   Matt Haindl exploration manager.
   Matt Hancock site and processing manager.
   Ryan Mount runs the operational side of the business. Is there something I am missing?

   We need each member of that team to be shown the respect they deserve.

3. At 2.16pm Mr Mount replied to Mr Tucker, copying Messrs Perdikaris, Stewart, Haindl and Tripp, saying:

   1. Assuming your “Operational” actually means ‘Corporate’., then your suggested organisational structure has never been conveyed to me nor have I come across it in any other company.

   I and others in the company have sought clarity from the Board on the apparent confusion of the role of CEO and the organisational structure.

   2. As it stands I am responsible and in-charge of the project site (the QLD government also explicitly shares this view).

   My position stands on my directive of site operations.

   If the Board wishes to overrule my authority there is a process for that. If the Board wants me to assist them in that process I am available to do so.

4. On 29 March Keely Graham, a principal of McInnes Wilson met with Mr Perdikaris at his home where she was introduced to Mr Mount.

   Mr Mount attends his final board meeting

5. The final board meeting Mr Mount attended took place on 31 March 2021.  Like the other board meetings, it occurred at Mr Perdikaris’s house.

   The day before the meeting

6. The day before the board meeting Mr Mount prepared a report for the meeting.  He also spent some time on the phone with Ms Nygh.  They had a number of conversations about various matters relating to DCM, including (according to Ms Nygh’s file note) one in which Mr Mount told her that they “had to get these guys [Tucker and Haindl] out of the business”.  Ms Nygh helped Mr Mount prepare a draft report for ASIC, dealing with his whistleblower complaints.  She also prepared an advice addressed to Mr Perdikaris concerning directors’ duties and conflicts of interest which she sent to Mr Perdikaris and Mr Mount.

7. Mr Mount also contacted Jon White of Pacific People Solutions, a recruitment firm, informing him that he had been appointed Acting CEO of DCM and that he had been told that he “may soon be looking for an exploration manager” and a “plant manager”.  As Matthew Haindl was the exploration manager, the respondents submitted that it could be inferred that Mr Mount was contemplating that Mr Haindl would soon be leaving the business.

8. At 7.02pm Ms Graham emailed Mr Perdikaris a letter of advice she had prepared for DCM concerning apparent breaches by Logicca of its duties to DCM and the potential actions to recover losses the company may have incurred as a result (the McInnes Wilson advice).

   The day of the meeting

9. The last meeting Mr Mount attended took place on 31 March.  I discuss at length below what happened during the meeting.  It is sufficient at this point to observe that at some stage the McInnes Wilson advice was circulated and that subsequently both Mr Haindl and Mr Tucker were directed to leave and, on their accounts (supported by Mr Tripp and Mr Stewart but denied by Mr Mount and Mr Perdikaris), they were marched or escorted out of the room by two large, tattooed strangers whose presence they found intimidating.

10. Soon after the meeting finished, the respondents contacted Mr Christensen, seeking his advice, and steps were quickly taken to remove Mr Perdikaris from the board and terminate Mr Mount’s employment.

    April 2021

    Mr Perdikaris is removed from the board and Mr Mount’s employment is terminated

11. Mr Perdikaris was removed from the board on 6 April.  Mr Mount’s employment was not terminated until 10 April 2021.  But the decision to terminate Mr Mount’s employment was made earlier than that.  The evidence indicates that it was made on 31 March, in the wake of the board meeting that day, and formalised on 6 April.  A letter terminating his employment was emailed to the wrong email address on 6 April.

12. In the meantime, Mr Mount continued to act as CEO and also spent some time in consultation with Ms Nygh preparing to lodge a report to ASIC.

13. On 8 April, apparently under the impression that Mr Mount had received and read the 6 April email, Mr Haindl pressed Mr Mount to make arrangements for the return of the company car.

14. On 10 April, Mr Haindl and Mr Tucker separately emailed Mr Mount, this time at the correct email address, informing him that his employment had been terminated.  On 11 April Mr Mount asked for reasons but none were offered.  Assertions were made in a letter from Christensen Legal that DCM denied it had an employment contract with Mr Mount and that it had no obligation to provide him with reasons for the termination of his contract.  Once again, Mr Mount was pressed to return the company car.  This time, however, he was told that, if he did not return it by noon the following day, DCM would report the vehicle as stolen.  The car was not returned.  Consequently, on 6 May the car (with a number of Mr Mount’s personal belongings inside) was towed away from Mr Mount’s home.

    Mr Mount brings proceedings in the Fair Work Commission

15. On 27 April Mr Mount applied to the Fair Work Commission alleging that his dismissal by DCM contravened Pt 3-1 of the FW Act. The respondents contended that the Commission did not have jurisdiction to hear the dispute because Mr Mount was not an employee.

16. On 30 September the Fair Work Commission rejected the jurisdictional objection, finding that Mr Mount was an employee of DCM:  Ryan Mount v Dover Castle Metals Pty Ltd, Matthew Haindl, George Tucker, Simon Tripp [2021] FWC 6043 (Easton DP).

    October 2021

    Mr Mount commences court proceedings

17. On 15 September Mr Mount filed an application for preliminary discovery against DCM, the respondents and others with a view to commencing an action for defamation.

18. On 19 October, armed with the requisite certificate from the Fair Work Commission (saying that attempts to resolve the dispute had failed), Mr Mount commenced this proceeding.

19. On 11 November Bromwich J dismissed the application for preliminary discovery:  Mount v Dover Castle Metals Pty Ltd [2021] FCA 1356.

    THE WITNESSES

20. Mr Mount, Mr Haindl, Mr Tripp, Mr Tucker, Mr Stewart and Ms Graham provided affidavits upon which they were cross‑examined.  Ms Graham’s affidavit was procured by the respondents so she was cross‑examined by senior counsel for Mr Mount.  Mr Mount affirmed four affidavits, Mr Haindl and Ms Graham one, and Mr Tripp and Mr Tucker three, only two of which were read.

21. Mr Perdikaris was a substantial shareholder in DCM through his company, Metohes.  As at January 2021 he had invested between $1.2 to $1.5 million in DCM which amounted to approximately six percent of its equity.

22. As I mentioned earlier, Mr Haindl was one of the founders of DCM and has been a director since February 2017. He apparently holds a Bachelor of Science (Geology). At all relevant times, Mr Haindl worked for DCM as its project geologist and was the site senior executive within the meaning of s 36 of the Mining and Quarrying Safety and Health Act 1999 (Qld) (Mining Safety Act).  In his evidence Mr Haindl acknowledged that he had obligations in relation to the health and safety of people who might be affected by the operation of the mine, including to ensure that the health and safety risks were “at an acceptable level”; to develop, implement and maintain a management structure for the mine that helped to ensure health and safety of people at the mine; to develop and implement health and safety management systems; and to review safety and health management plans of contractors and service providers.  He also acknowledged that, as a director of DCM, he had obligations of due diligence in relation to safety issues at the mine, which included acquiring and keeping up to date knowledge of mine health and safety matters and ensuring that DCM “implemented processes for complying with its legal obligations”.

23. Mr Tripp described himself as a professional investor.  He was a director of DCM from 8 March 2021 to 11 March 2023, when he resigned.

24. Since about June 2014 Mr Tucker has been a senior advisor at Sequoia Asset Management in which position he performed brokerage, capital raising for companies and wealth management services.  Previously he had been an investment advisor at Yellow Brick Road/SCM Equities for about six years.  He has personally invested in mining stocks for about thirty years and has raised capital for a number of mining ventures including Axiom.  Mr Tucker was first approached by Mr Nettelbeck and Matthew Haindl in about April 2014 to assist DCM with capital raising.  He agreed to raise capital for DCM and continues to assist the company in this way.  He introduced most of DCM’s current shareholders to the business.  He also purchased shares in DCM himself and in September 2014 assisted DCM to establish the Tucker Bare Trust to enable more than 50 shareholders to purchase shares in the business without DCM having to become a publicly listed company and agreed to be its trustee.  He served as a director of DCM from 5 February 2021 until 13 March 2023.

25. Mr Tucker has known Mr Mount and Mr Perdikaris for over a decade.  They first met in 2009 when they worked together at Yellow Brick Road.  At that time, they performed similar roles.  After Mr Mount left Yellow Brick Road, Mr Tucker took over the brokerage for Axiom.  He also purchased shares in Axiom.  Mr Mount introduced Mr Tucker to Mr Perdikaris in about 2009 or 2010 and Mr Perdikaris became one of Mr Tucker’s “investor clients”.  In about May 2014 Mr Tucker introduced Mr Perdikaris to “the opportunity” for investment with DCM.  Mr Tucker described Mr Perdikaris as “a particularly enthusiastic and involved shareholder of DCM”.  Mr Tucker deposed that he was reluctant for Mr Mount to become involved with DCM for three reasons.  First, he had lost money investing in Axiom while Mr Mount was its CEO and Managing Director and, although he accepted that investors can lose money from time to time, the experience he had with his Axiom investments gave him no confidence in Mr Mount’s abilities.  Second, while at Axiom, Mr Mount had engaged in long and expensive litigation in which Axiom ultimately failed and his approach “reflected an overly litigious nature and a lack of judgement”.  He attributed the losses he and other shareholders suffered to Mr Mount’s approach.  Third, he understood that, after “the events at Axiom and its performance”, Mr Mount did not have a good reputation in the market.  He told Perdikaris, while the latter was pleading with him to engage Mr Mount, that he could not agree to that because “[t]he other shareholders won’t accept it”.  He said he only agreed to the arrangement because of conversations Mr Tripp and Mr Perdikaris had had with Mr Mount.  His preference was that Mr Mount not join DCM.

26. At the time he gave evidence Mr Stewart was a director of DCM and chair of the DCM board.  He had held both those positions since about 28 June 2022.  At all relevant times, however, he occupied no executive or non-executive positions with DCM.  He agreed to assist DCM where he could but only “in the capacity of a voluntary observer”.  He attended the three board meetings Mr Mount did in March 2021 but he insisted he did so only as “a voluntary observer and to help facilitate the meetings”.  At the time he was the CEO and Executive Director of EMM, and did not consider he was able to do anything more.  He aspired, however, to become a director after “stepping down” from that position, which he did in late June 2022 after Mr Christensen resigned as general manager.

27. Oral evidence was adduced from Wayne Clare, a neighbour and erstwhile friend of Mr Mount, and Freddy Jaja, a builder and former investor in DCM, a client of Mr Tucker, and a friend of Mr Mount — two of the people to whom Mr Tucker allegedly denigrated Mr Mount.  They were both called to give evidence in support of Mr Mount’s case although Mr Clare’s proved to be unhelpful to Mr Mount.  I was given no reason to doubt the evidence of either Mr Clare or Mr Jaja.

28. Oral evidence was also adduced on behalf of the respondents from Mr Christensen and Ms Nygh.  There was no serious challenge to Mr Christensen’s credibility and I did not form the view that he was dissembling.  There was no challenge to the credibility of Ms Nygh or, for that matter, Ms Graham. 

29. No evidence was called from a number of witnesses Mr Mount had foreshadowed he would be calling.  Similarly, while a subpoena was issued for Mr Hancock’s attendance and the respondents served an outline of evidence from him, he was not called to give evidence either.

30. While Mr Mount initially came across as a person who was doing his best to give an accurate account of events, some of his evidence strained credibility.  I was not impressed by Mr Perdikaris, who was argumentative and at times difficult to follow.  I consider him to be a largely unreliable witness.  As will be seen, he was prepared to deceive the other DCM board members at the 31 March meeting and was otherwise loose with the truth.  Nor was I impressed by Mr Tripp, who was loquacious, at times non-responsive, and generally smug. 

31. At the conclusion of the evidence I had reached no firm views about who should be believed on a number of important issues.

    THE CLAIMS

32. Mr Mount alleges that DCM contravened ss 1317AC, 1317AD, and 1317AAE of the Corporations Act by terminating his employment and by revealing his identity as the author of allegedly protected disclosures; that Messrs Haindl, Tripp and Tucker were involved in the contravention of s 1317AC and are therefore taken to have also contravened that section; and that Mr Tucker contravened s 1317AC by demanding that Mr Mount return the company car, reporting the car to the police as stolen, and damaging Mr Mount’s reputation and financial position.

33. Mr Mount also alleges that, by summarily dismissing him, DCM breached the terms of their contract and that he is entitled to loss of bargain damages for the residue of the 12-month fixed term.

    THE ISSUES

34. The parties agreed upon a statement of issues arising from the pleading (the agreed issues).  Like Mr Mount’s pleading itself, the statement was prolix, distracting at times from the matters that had to be proved in order for the various causes of action to be made out.  In some cases it strayed from the pleading, yet no relevant application was made to expand or alter the pleading.  In a case such as this, where adverse findings have serious consequences, the parties should be held to their pleadings unless they successfully apply to amend them.

35. Broadly speaking the real issues are:

    (1)whether Mr Mount had standing to bring the claims under ss 1317AAE and 1317AC (agreed issue 1);

    (2)which of the alleged disclosures qualify for protection under Pt 9.4AAA of the Corporations Act (agreed issue 3);

    (3)whether Mr Tripp disclosed to Mr Haindl Mr Mount’s identity as the author of the First Whistleblower Report or information likely to lead to his identification as such (agreed issues 4 and 5);

    (4)whether Mr Haindl disclosed to Mr Arthy Mr Mount’s identity as the author of the First Whistleblower Report or information likely to lead to his identification as such (agreed issues 4 and 5);

    (5)whether the reason, or part of the reason, DCM terminated Mr Mount’s contract was a belief held by Mr Haindl, Mr Tucker and/or Mr Tripp that Mr Mount had made a disclosure that qualifies for protection (agreed issues 6 and 7);

    (6)whether the, or part of the, reason Mr Tucker demanded the return of the company car and/or contacted the police to report it as stolen was that he believed or suspected that Mr Mount had made a disclosure that qualifies for protection (agreed issues 15 and 16);

    (7)whether Mr Tucker disparaged Mr Mount to members of the mining investment community between April 2021 and June 2021 in a manner that damaged his reputation and financial position and interfered with his efforts to mitigate his loss (agreed issues 17 and 18);

    (8)if so, whether the reason or part of the reason he did so was because he believed or suspected that Mr Mount had made a disclosure that qualifies for protection (agreed issues 19 and 20);

    (9)whether DCM was entitled to summarily terminate Mr Mount’s contract for any of the reasons upon which the respondents relied (agreed issues 29 to 41);

    (10)if any of the claims are established, in what amount, if any, should compensation and/or damages be awarded (agreed issues 21–28, 42 to 46 and 53); and

    (11)what, if any costs order should be made (agreed issues 2 and 54).

36. Agreed issues 47 to 52 fell away with the abandonment of one of Mr Mount’s claims.  The resolution of agreed issues 2 and 54 abide the determination of the substantive issues and will be considered at a later date.

37. There were also significant issues about the credibility of a number of the witnesses, particularly Mr Mount and Mr Perdikaris and Messrs Haindl, Tripp and Tucker.

38. Owing to the common factual elements of a number of claims, some repetition is both unavoidable and necessary.

    PROOF

39. The burden of proving the claims generally rests with Mr Mount. As will be seen, however, with respect to one of the claims under the Corporations Act and the claim in contract on critical questions it shifts to the respondents. As this is a civil matter, the standard of proof is the balance of probabilities: Corporations Act, s 1332, Evidence Act 1995 (Cth), s 140(1). In determining whether the burden is discharged, the Court is required to take into account the seriousness of the allegations and the gravity of the consequences flowing from the finding urged upon the Court: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J). See also Evidence Act, s 140(2). In resolving questions of fact or deciding what inferences should be drawn from undisputed or established facts, a court “must feel an actual persuasion” of the fact or inference in question (Briginshaw at 361 per Dixon J); “[m]ere speculation about possibilities is always insufficient”: Martin v Norton Rose Fulbright (2021) 289 FCR 369 at [60] (Jagot, Katzmann and Banks Smith JJ).

40. In the present case, many of the claims made by both parties are serious. Some of the claims under the Corporations Act expose the respondents to the risk of civil penalties. In these circumstances, it is necessary to keep in mind Dixon J’s aphorism that the satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. As will be seen, I was invited by both sides in this case to make critical findings based on just that.

    THE PROCESS OF EVALUATION

41. To the extent that the resolution of the issues depends on the recollection of the witnesses, I have taken into account the fact that memory is notoriously “fallible and malleable, especially memory concerning past beliefs”:  Dedakis v Deligiannis [2024] NSWSC 1018 at [15] (Leeming JA). The same is true about memory of past conversations. As McLelland CJ in Eq observed in Watson v Foxman (1995) 49 NSWLR 315 at 319:

    [H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

1. The respondents did not point to any confidential information Mr Mount disclosed to Mr Perdikaris after he knew that he had been removed as a director.  In cross-examination Mr Mount agreed that Mr Perdikaris assisted him “in order to advance the preparation of the ASIC report”.  In examination in chief Ms Nygh was asked what role she understood Mr Perdikaris had at the time in relation to the preparation of the report for ASIC and she replied:

   Perdikaris’ role at that time was to check whether the conversations that he – that were reported in the report that he had had with various people were accurately recorded.

2. I cannot discern anything that would amount to a disclosure by Mr Mount after Mr Perdikaris’s removal from office of confidential information concerning DCM.

3. In any case, as Mr Mount pointed out in his submissions, the board resolution purporting to remove Mr Perdikaris from his office as a director was invalid.  That is because, as Mr Tucker admitted in cross-examination (at T1167), he did not obtain the consent or direction of any of the beneficiaries in breach of the requirement in cl 2(b) of the Tucker trust deed poll which stipulates that:

   The Trustee will hold the Shares on trust for the Beneficiary(s) and must deal with the Shares and exercise all voting and other rights attached to the Shares as directed by the Beneficiary(s).

   Acting at the direction and in the personal interests of Mr Perdikaris in conflict with duties to DCM (agreed issue 41)

4. The particulars of this ground given in the defence were as follows:

   1.Christos Perdikaris provided information including confidential information to the applicant about the first respondent prior to the applicant’s employment, prior to Christos Perdikaris’s appointment to the board of the first respondent and without the approval of the first respondent or any director of the first respondent by emails from Melissa Mason, Mr Perdikaris’s assistant, on 19 February 2021 at about 9:47 am and 4 March 2021 at about 4:46pm and from Cindy Perdikaris on 4 March 2021 at about 4:49 pm.

   2.Christos Perdikaris engaged and funded the applicant to attend the Mine on 13 and 14 March 2021 and to provide him a report.

   3. [T]he applicant and Christos Perdikaris instructed and continued to instruct Resolve Litigation Lawyers without the knowledge or approval of the second, third and fourth respondents from on or about 23 March 2021 or alternatively, 4 March 2021.

   4.[O]n 25 March and again on 6 April 2021, Ms Mason sent emails to the applicant by which the applicant was given access to a website link established by or on behalf of Christos Perdikaris containing the audio recordings and transcripts of the first respondent’s board meetings that took place during the applicant’s employment by the first respondent, which access was not given to the respondents.

   5.        The events set out in the particulars to 19(a)(i) and (ii) above;

   6.        The matters set out in paragraphs 19(b)(i), (ii), (iii) and (iv) above.

5. I will deal with these matters in the same order.

6. The first and second matters are entirely neutral.

7. The respondents did not identify why any of the information with which the first matter is concerned were confidential.

8. The allegedly confidential information Mr Perdikaris provided to Mr Mount before he was employed consisted of copies of the Tucker Bare Trust deed, the DCM constitution and part of an ASIC search (19 February), an email chain referring to the initial FTI report and the amended FTI Consulting report, and a copy of the amended FTI report (4 March at 4.46pm); and an email attaching a copy of the DCM share register (4 March at 4.49pm).

9. I cannot see why the information in the Tucker Bare Trust deed, the DCM constitution or an ASIC search could be regarded as confidential information of DCM. Mr Perdikaris’s unchallenged evidence was that he received the documents from Mr Tucker and/or Matthew Haindl. It is a criminal offence to refuse to provide a copy of the constitution to a member who requests it (see Corporations Act, ss 139 and 1311) and the Corporations Act places no restrictions on the use a member might make of a company’s constitution. Mr Perdikaris, of course, was a member of the company. I do not understand why the information is confidential to DCM. Section 173(1) of the Corporations Act requires a company to provide a copy of its share register to anyone who asks for it.

10. The email chain relating to the FTI reports was not tendered in evidence so I cannot be satisfied that it was confidential.  The respondents did not contend that any of this material was protected at the time by legal professional privilege.

11. Moreover, Mr Perdikaris was in possession of the emails and the second FTI report although at the time he was not a board member, and there was no suggestion that they were provided to him in confidence.

12. At the time Mr Mount received this material, he had been asked by Mr Perdikaris to see if he was interested in managing the business of DCM.

13. It will be recalled that Mr Perdikaris paid for Mr Mount to travel to the mine before he was hired by DCM.  That included flights, car hire, food and equipment and some clothing, which Mr Mount agreed was worth around $3,000.  There was no secret about that.

14. Although Mr Mount denied that Mr Perdikaris financed the trip so that he could prepare a report for him, he admitted that Mr Perdikaris made a disclosure at the 17 March meeting in the following terms:

    I financed a trip for Ryan to attend the DCM site and to meet with Matt Hancock and write me a report.

15. In his own disclosure to the board that day, he said that Mr Perdikaris had financed the trip and had asked him for general advice.

16. As to the third matter, I have already considered the Resolve issues.

17. As to the fourth matter, I was not taken to any evidence to suggest that the respondents sought access to the recordings and transcript and were refused access.

18. The fifth matter concerns the allegations in para 19(a)(i) and (ii) of the defence.  The allegation in para 19(a)(i) is that Mr Mount was complicit with Mr Perdikaris in the removal of Mr Haindl and Mr Tucker from the board meeting, an allegation I have not upheld.  The allegation in para 19(a)(ii) can be put to one side.  Over Mr Mount’s objection, the respondents were not given leave to amend their defence to include it.

19. The sixth and final matter concerns the allegations in para 19(b)(i)-(iv), which are the other grounds upon which the respondents say they were entitled to summarily dismiss Mr Mount.

20. The respondents submitted that, “despite serious conflicts of interest, Mount worked in direct collaboration with Perdikaris” unbeknown to the other board members, in order “to secure the removal of Tucker and Haindl from the Board and to effectively sideline them from management of the business” and that “[t]his caused a fundamental breakdown in the cohesion of the DCM Board which culminated in the events at the 31 March Board meeting”.  They contended that that conduct “was repudiatory and incompatible with the fulfilment of his duty to DCM and justified summary termination”.

21. The respondents’ submission that there were serious conflicts of interests was no more than an ipsi dixit.  That is to say, it was merely an assertion which was never proved.  It is true that it was not in the interests of Mr Haindl and Mr Tucker that Mr Mount investigate their conduct or obtain legal advice about submitting a report to ASIC about either of them.  But Mr Mount was employed by the company, not its individual directors, and his actions were not necessarily inconsistent with DCM’s interests.  It is in the mutual interests of the shareholders and the company that the company is properly administered.

22. It will be recalled that Mr Perdikaris wanted to be appointed to the board so that he could have confidence in the information being given to shareholders. That was the first of his four “ultimate objectives” Mr Mount conveyed to Ms Nygh. The third was that DCM be converted to a public company so that all shareholders would be provided with regular information. The fourth was that any monies and assets owed to DCM be returned. All those objectives were in the company’s interests. Mr Perdikaris’s second objective — removing Mr Tucker from the board — was not necessarily inconsistent with that. Directors owe a duty to act in good faith in the best interests of the company (Corporations Act, s 181(1)(a)) and, while a company remains solvent, “the interests of the company” include the interests of the corporate entity itself, its shareholders, and, where the financial position of the company is precarious, its creditors: Cassimatis v Australian Securities and Investments Commission (2020) 275 FCR 533 at [453] (Thawley J); see also at [194] (Greenwood J).

23. Mr Perdikaris’s particular concern was that the company was being administered for the personal benefit of certain directors contrary to the interests of the shareholders and without regard to their rights.  He suspected that Mr Tucker was using the bare trust for his personal advantage because of the voting power it afforded him.  In particular, he was concerned about the purported exercise by one director, Mr Tucker, of his voting rights on behalf of shareholders whose shares he held on trust without seeking their opinions, let alone obtaining their consent, contrary to the terms of the trust deed (as Mr Tucker admitted in evidence to doing in relation to both the removal of Mr Nettelbeck and Mr Perdikaris).  In the case of Mr Nettelbeck, Mr Tucker said he had contacted a couple of shareholders.  In the case of Mr Perdikaris, he admitted he contacted none.  That concern, as well as his concern about corporate governance more generally, was what caused Mr Perdikaris to seek advice from Resolve.  “Good corporate governance requires that directors and managers observe the need for internal safeguards to reduce the risk that the company will be burdened with liabilities through the conduct of persons acting without actual authority”:  IM Ramsay, Company Directors: Principles of Law and Corporate Governance (2^nd ed, LexisNexis, 2023), [3.2].

24. Good corporate governance was indisputably in the interests of DCM and it was common ground that, at the time Mr Mount was offered the position of acting CEO, DCM’s corporate governance was poor.  Mr Mount certainly acted hastily — some might say with unseemly haste — in reaching his opinions, but the contemporaneous evidence suggests that he was worried that if he did not move quickly the situation would be detrimental to the company’s interests.  From the time he was first approached by Mr Perdikaris, he became increasingly suspicious that the company was being poorly run and that its directors could not be trusted.  The evidence disclosed that there were valid reasons for some, if not most, of those concerns.  In the first instance Mr Mount conveyed those suspicions to Mr Perdikaris who became alarmed.  I did not form the view that he had any interest in taking over the company or that he connived with Mr Perdikaris to do so.  I certainly did not get the impression that he acted at any time at Mr Perdikaris’s direction, and the respondents’ evidence was to the contrary.  Mr Perdikaris admitted to having no business experience in dealing with the details of corporate governance.  He sought out Mr Mount because Mr Mount had such experience and he relied on Mr Mount’s advice and experience.  He did not ask, let alone direct, Mr Mount to prepare either of the Whistleblower Reports and I was not taken to any evidence to indicate that he directed Mr Mount to lodge a report with ASIC.  It appears that all these steps were taken on Mr Mount’s initiative.

25. The respondents’ case rests on strongly held suspicions with insufficient foundations to sustain them.

    Conclusion

26. The respondents have failed to prove that they were entitled to summarily dismiss Mr Mount from his employment.

    DAMAGES/COMPENSATION

27. Mr Mount sought:

    (1)compensation under ss 1317AD and 1317AE of the Corporations Act;

    (2)damages for wrongful dismissal in the amount of $229,000, being the remuneration he would have received from DCM had he remained in its employment for the balance of the fixed term, “less the amount paid to [him] for his work until 31 March 2021”. together with superannuation and annual leave calculated on that amount, together with;

    (3)damages for “hurt, humiliation and stress” caused by the manner in which DCM recovered possession of the company car and took possession of his personal items that were in the car at that time;

    (4)compensation for harm to his reputation and interference with his efforts to mitigate his loss;

    (5)interest on the above sums;

    (6)exemplary damages; and

    (7)pecuniary penalty orders.

28. An additional claim for damages in the sum of $29,337 for the cost of leasing an equivalent vehicle to the company car for 11 months was abandoned by Mr Mount in closing submissions.

29. As the claim for damage to Mr Mount’s reputation was not made out, the claim for compensation for harm to his reputation and interference with his efforts to mitigate his loss on that account must be dismissed.  Had it succeeded, given the limited number of people to whom the defamatory comments were made I would have awarded no more than $10,000 in compensation for damage to reputation and hurt feelings.

30. As all the claims under the Corporations Act were unsuccessful and the claim for exemplary damages was made under s 1317AE(1)(f) of that Act, there is no need to consider Mr Mount’s claim for exemplary damages. Nor is there any need to consider Mr Mount’s claims for compensation or pecuniary penalty orders. That disposes of agreed issues 21 to 28.

    The claim for damages for wrongful dismissal

31. As the claims under s 1317AD of the Corporations Act were unsuccessful and Mr Mount had no standing to bring a claim for compensation under s 1317AC, he is left with a potential entitlement to damages for economic loss resulting from his wrongful dismissal. I say potential because the measure of Mr Mount’s economic loss is “the salary and wages and other contractual benefits of which he has been deprived less the salary or wages and other financial benefits which he received or acting reasonably should have received from the exercise of earning capacity freed up by the dismissal”: Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1 at [72] (Giles JA, with whom McColl JA and Young CJ in Eq agreed at [76] and [77] respectively). The financial benefits received from the exercise of earning capacity freed up by the dismissal are often referred to as “avoided loss” and those the employee ought reasonably to have received as “avoidable loss”. The general principle was explained by the seven members of the High Court in Talacko v Talacko (2021) 272 CLR 478 at [57] in the following way:

    [A] defendant’s liability to compensate for loss is usually reduced where a plaintiff takes successful action consequent upon the defendant’s wrong to reduce their loss. In some cases, this principle is described as one of the rules of mitigation, being the usual principle that the claimant cannot recover for avoided loss, even in some cases where a benefit is acquired and the steps taken were not mitigation measures that were reasonably required. In other cases, the principle is described simply as part of the principle of compensation that generally requires compensating advantages that are sufficiently connected to the wrongdoing to be deducted from the damages awarded for consequential loss.

    (Footnotes omitted.)

32. In the case of avoided loss, the financial benefits to be brought into account are not confined to remuneration earned from other employers:  I Neil and D Chin, The Modern Contract of Employment (2^nd ed, LawBook Co, 2017) [13.74].  See, for example, Fishlock v The Campaign Palace Pty Ltd [2013] NSWSC 531; 234 IR 1 at [288]–[289] in which Sackar J deducted earnings derived by the former employee from his newly established consultancy business. As Neil and Chin go on to say at [13.74]:

    Other benefits received from steps “arising out of” or as a direct consequence of (and not merely collateral) to a defaulting employer’s breach of contract may also be brought to account in reduction of the damages awarded for that breach.

33. Whether particular financial benefits are “too collateral or too remote to be considered relevant compensation is a question of characterisation of the relevant payment and assessment of its connection in legal and factual relationship with the loss”:  Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357 at [12] (Allsop P, Beazley JA agreeing at [19]). Relevant factors include “the temporal and purposive connection” of the benefits: Ibid.

34. DCM did not allege that Mr Mount had failed to mitigate his loss, that is to say that he had avoidable loss.  Its case was that he had wholly mitigated his loss.  That means that the onus is also on DCM to prove that the money Mr Mount earned after he was dismissed could and would not have been earned if he had remained in its employment:  Tasman Capital at [95] (Young CJ in Eq). For the reasons which follow, I am satisfied that DCM has discharged its onus and therefore that Mr Mount is not entitled to damages to compensate him for his wrongful dismissal.

    The scope of the dispute

35. The parties agreed on the amount Mr Mount would have earned had he remained in DCM’s employment for the duration of his contractual term; the amount of superannuation and annual leave to which he would have been entitled, and the amount he was paid during the short time he worked for DCM.

36. It is agreed that, if Mr Mount’s contract had run to its full term, he would have received additional salary payments totalling $224,219.18; $11,478.14 in annual leave; and $19,900.22 in superannuation (a grand total of $255,597.54).  It is not in dispute that interest should be paid if he is entitled to damages.

37. Mr Mount also deposed that, since his employment was terminated, he has experienced depression and has been undergoing “medical treatment from a psychologist”.  This evidence is entitled to little weight.  There was no evidence to support it.  Not only was there no report from the psychologist but the psychologist was not even identified.  Moreover, unless the psychologist was also a registered medical practitioner, they would not have been able to provide medical treatment.  That said, I accept that Mr Mount was upset that his employment was terminated.  In Elisha v Vision Australia Limited [2024] HCA 50; 99 ALJR 171 the High Court accepted that damages may be awarded for psychiatric injury in a claim for breach of an employment contract but not hurt feelings or anything short of a diagnosable medical condition (especially at [66] per Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

38. The parties identified five issues for resolution in their statement of issues (agreed issues 42 to 46).  In truth, there is only one:  what is the extent of Mr Mount’s loss?  More particularly, the issue is whether, as DCM alleged, Mr Mount mitigated his loss by income he derived from work he performed during the residue of his contractual term.

    The extent of the loss

39. In their defence, the respondents pleaded that Mr Mount fully mitigated any damage he may have suffered as a consequence of the termination of his employment.  The respondents particularised the income his company, Balclutha Advisors, received from Oldfields Holdings Limited and Hall Chadwick for services provided by Mr Mount between his termination on 10 April 2021 and 17 March 2022.  Mr Mount was the sole director of Balclutha.

40. It is common ground that the amount Mr Mount received from Hall Chadwick and Oldfields exceeded the amount he was entitled to receive under the terms of his contract with DCM.  That amount was approximately $400,000 including GST.  Even without GST, it was substantially higher than the total amount he would have received from DCM had it not been for the termination of his contract.

1. In his reply, Mr Mount pleaded:

   In response to paragraph 77c of the Defence the Applicant says any income he earned from Oldfields Holdings Limited and Hall Chadwick as alleged was collateral and extraneous to the breach or repudiation of the contract and could have been earned even if the Applicant had still been in employment, and, alternatively, in relation to the success fee income received from Oldfields Holdings Limited, was earned by the Applicant’s labour or provision of services after 17 March 2022.

2. Mr Mount filed no evidence to support this plea.  Despite filing four affidavits he omitted any mention of earnings from Oldfields or Hall Chadwick.  Such evidence as there was first emerged in cross-examination.

3. In cross-examination Mr Mount testified that he secured management consultancy work in around September 2021, when he entered into a “Management Consultancy Deed” for paid work through Balclutha to advise Oldfields on raising $5 million in capital.  The Deed was dated 21 September 2021 and signed on 5 October 2021.  Relevantly, the “Project” was described in cl 4 of the Deed as:

   The Company wishes to raise up to A$5 million in capital and Adviser is willing to assist it in that endeavour by advising the Company on the capital raising(s) and introducing and liaising with Investors to the Company for an Investment, noting the Advisor’s role is set out below.

   The “Company” refers to Oldfields and the “Adviser” refers to Balclutha.

4. Balclutha’s role was described in cl 8 of the Deed in the following way:

   In its capacity as a management and investor relations consultant, the Adviser will use its reasonable endeavours to identify, introduce and liaise with selected Investors to the Company for an Investment. This also involves assisting the Board and Management of the Company in preparing, arranging and executing the Investment. The Adviser is exclusive in this appointment and its Role for a period of 6 months. This shall be extendable by mutual written agreement. If an Investment occurs after this period with any of the Advisor's introduced Investors (including their associates) the Success Fee will be payable to the Advisor.

5. The Deed provided for a success fee of 7.5%, exclusive of GST, of the gross cash and other agreed consideration paid or to be provided on each occasion.  Further, upon the signing of the Deed, Oldfields agreed to pay Balclutha a “work fee” of $15,000 plus GST per month or part thereof for three months.  The details appear in cl 9:

   Upon the occurrence, and out of the proceeds, of each completion/financial close of a single Investment or series of interdependent or contemporaneous Investments or other related transactions for or in relation to the Project for the Company or any one or more members of its Group with any Investor, the Company will pay to Adviser or its nominee(s) a Success Fee of 7.5% (exclusive of GST) of the gross cash and other agreed consideration paid or to be provided on each occasion.

   This Success Fee(s) shall be a total fee payable by the Company and inclusive of any disbursements or brokerage fees payable to third parties (unless otherwise agreed to in writing by the parties)upon [sic]

   In addition, commencing upon signing of this Deed, the Company will pay the Advisor $15,000.00 plus GST per month or part thereof (Work Fee) for three months.

   The Work Fee will be invoiced monthly in arrears and payable upon receipt.

   50% of the total Work Fee will be rebated upon completion of the Investment and payment of the Success Fee.

6. In cross-examination, Mr Mount agreed that he secured monthly “work fees” representing work he performed or services he rendered of $16,500 (including GST) for the month 5 October to 4 November 2021, another $16,500 (including GST) for the month 5 November to 4 December 2021 and $16,500 (including GST) for the month 5 December 2021 to 4 January 2022.  Mr Mount also admitted that he had received $16,500 in work fees from Hall Chadwick in late 2021.

7. In re-examination Mr Mount testified that, for the three months in which he performed work for Oldfields under the Deed, he was only required to work “somewhere in the vicinity of an average of 45 minutes to an hour … most working days of the week”.  In the period January‑March 2022, he said that “the company did not require [his] assistance as much during those three months”.  He also testified that “on or around 7 April [2022], the investor notified Oldfields that … they were considering, or essentially, were withdrawing from investing” and he then “reengaged” with the deal “extensively” from 12 to 22 April 2022.  Mr Mount’s evidence was that it was this work after 12 April 2022 which salvaged the investment for Oldfields.  No documentary evidence was proffered to support this testimony.

8. Mr Mount also testified that he had to repay 50% of the three months of earnings.  No documents recording or evidencing any repayment by Balclutha to Oldfields were produced in answer to a call from DCM.

9. On 26 April 2022 Mr Mount issued an invoice from Balclutha to Oldfields.  The invoice includes a sum of $375,000 (representing a “success fee” of 7.5% on an investment of $5 million) less a “rebate” of $22,500, representing 50% of the work fee that had already been invoiced and paid.  The total amount was recorded as $352,500 before GST, with a total inclusive of GST of $387,750 due.  The success fee was paid in two tranches.  Balclutha bank statements for the relevant period disclose that on 2 May 2022, Oldfields deposited $200,000 into the Balclutha account and on 27 May 2022 Oldfields deposited a further $187,750 into the account (a total of $387,750).  Clearly, the full amount paid included GST but did not include the $22,500 in work fees that had been deducted or “rebated” from the amount paid.  Mr Mount gave unchallenged evidence that he paid $50,000 to an assistant out of the success fee, reducing the total amount to $302,500 (excluding GST).

10. It follows that Mr Mount earned more from the Oldfields work alone than the $255,606.54 he would have received from DCM had his employment not been terminated.

11. Senior counsel for Mr Mount argued that the payment to Mr Mount of the success fee was the result of the work in April 2022 to salvage the deal, and for this reason it was not mitigation of the income he lost during the balance of his contract with DCM from 11 April 2021 to 17 March 2022.  He submitted:

    Mr Mount earned the success fee of $375,000.00 by dint or the exertion of his labour to effect the ‘closing’ of the investment into Oldfields under clause 9 during the period from 12 to 22 April 2022, so that as a practical matter, the success fee was earned by Mr Mount’s labour as applied after 17 March 2022, the success fee being paid in two portions on 2 and 22 (sic) May 2022. If the relevant principle relied on by DCM is that a credit should be given for income received by Mr Mount by the exercise of his earning capacity freed up by the termination by DCM, then the period in which the success fee was earned by the exercise of that capacity was not a period of time freed up by the termination.

12. I cannot accept this argument.  I am not satisfied that Mr Mount would have earned any of this money had it not been for the premature termination of his employment.  Indeed, I am satisfied that it was only earned because of it.

13. First, the parties agreed that the terms of Mr Mount’s contract with DCM were as recorded in his email of 18 March 2021 at 3.39pm.  There was no mention in that email of any entitlement to perform work for anyone else and it was no part of Mr Mount’s case that such a term should be implied.

14. Second, apart from his disclosure at the 17 March board meeting that he remained a director of Axiom, there is not a scintilla of evidence to suggest that Mr Mount had raised the possibility of doing work for others at any time, let alone that DCM would have approved or authorised it.  Nor is it likely that DCM would have countenanced its CEO raising capital for other companies at the time it was in need of capital.  The prospect of a conflict of interest is readily apparent.

15. Third, and in any event, the amount of time he was required to spend as CEO of DCM as well as his obligations to DCM as its CEO would have precluded him from performing the work that he carried out.

16. Mr Mount’s submission that he would have had the time to undertake consultancy work in addition to his duties as CEO of DCM is contradicted by his own evidence.  In his first affidavit, Mr Mount deposed:

    In order to work for Dover, I ceased doing consultancy work for Bambra Oy (Bambra), a Finnish company that had projects in Europe. I had already issued Bambra with an invoice for work I performed in January, 2021 in the amount of $10,000, a copy of which is at page 487. But for the approach by Dover, I would have continued to work for Bambra. The Bambra work did not involve full time work, and it was my intention to pursue consultancy work domestically and internationally in parallel with the work for Bambra. However, the Dover offer was a fulltime employment role which did not leave room for consultancy work. I was not able to resume working for Bambra after my engagement was terminated by Dover.

17. That evidence is supported by the contemporaneous documents which show that he was singularly devoted to the performance of his work at DCM, dispatching emails well beyond ordinary working hours, often from the break of dawn until late into the night.  There is no reason to think that that pattern of work would not have continued for the duration of his employment.

18. In these circumstances, I do not consider that he would have been able to undertake consulting work while he was employed by DCM or that he had any intention of doing so.

19. Fourth, there is a clear connection between Mr Mount’s dismissal from DCM’s employment and the work he performed for Oldfields and Hall Chadwick.  The income received by Balclutha was derived from Mr Mount’s skill and labour “freed up” by his dismissal.

20. In the absence of any corroboration and in light of the circumstances in which this evidence was given (in re-examination and therefore depriving the respondents of an opportunity to investigate it or cross-examine on it), I am sceptical of Mr Mount’s evidence that the success fee was derived through work done after his employment contract would have come to an end in the ordinary course.

21. In any case, even if Mr Mount’s evidence in this regard was truthful, the success fee was the result of the work Mr Mount carried out in the period from October 2021 to January 2022 and the additional work he claimed he undertook in April 2022 to salvage the deal.  The evidence does not support the notion that he would have been in a position to salvage the deal regardless of the work he had undertaken in the earlier period.

22. Further, cll 8 and 9 of the Deed indicate that, once Mr Mount had introduced the investors to Oldfields, provided that the investment occurred at any time after the term of the Deed, the success fee would be paid.  And Mr Mount testified that he introduced the investor who ultimately provided the capital to Oldfields within the first three months.

23. It is clear from the invoice sent on 26 April 2022 that the success fee was referable to the work Mr Mount performed between October 2021 and January 2022, not to any later work.  That invoice refers to a “rebate” of 50% of three units of monthly work fees which had already been invoiced and paid and in cross-examination Mr Mount accepted that the work fees represented the work he performed between October 2021 and January 2022.  Moreover, there is no evidence that Mr Mount invoiced Oldfields through Balclutha for services rendered or work performed in April 2022.

24. In short, even if he would not have earned the success fee but for his efforts between 12 and 22 April 2022, the success fee is directly referable to the services he rendered or work he performed between October 2021 and January 2022, which he would not have been in a position to undertake had his employment with DCM not been terminated.  Consequently, Mr Mount could not have earned the success fee were it not for the termination of his engagement by DCM.

25. If I am wrong in this respect, I would reject Mr Mount’s submission that I should include in his loss the “rebate” of the $22,500 in work fees invoiced by Balclutha and paid by Oldfields for the period October 2021 to January 2022.  Contrary to Mr Mount’s evidence, the invoices and bank records clearly establish that the amount of $22,500 was not repaid by Mr Mount.  Rather, it was deducted from the success fee that was paid to him.

26. In these circumstances, I am satisfied that the income Mr Mount earned through Balclutha and Hall Chadwick was not collateral or extraneous to the termination of his employment with DCM but that it would not have been earned but for his dismissal. Consequently, I find that Mr Mount has wholly mitigated his loss and is not entitled to an award of damages. For the same reasons, if Mr Mount had succeeded in the claim against DCM under s 1317AD(1) of the Corporations Act, I would not have awarded him compensation.

    OVERALL CONCLUSIONS

27. In respect of the claims under the whistleblower provisions in Pt 9.4AAA of the Corporations Act:

    (1)Mr Mount had standing to seek declaratory relief under s 21 of the FCA Act but no standing to seek an order for compensation or pecuniary penalties for any contraventions of ss 1317AAE or 1317AC of the Corporations Act.

    (2)However, the claims that the respondents contravened those sections have not been made out.

    (3)The claims under s 1317AD must be dismissed as I am satisfied that each of DCM and Mr Tucker has discharged their onus of proof in respect of each of those claims.

28. With respect to the claim in contract for wrongful dismissal:

    (1)I have found that DCM was entitled to dismiss Mr Mount but that it was not entitled to do so summarily.

    (2)However, I am not satisfied that Mr Mount is entitled to an award of damages because the income he derived from the exercise of his earning capacity, freed up by his dismissal by DCM, exceeded the amount that he would have earned had he remained in the employ of DCM for the rest of his contractual term.

    DISPOSITION

29. It follows that the further amended originating application must be dismissed.

30. I will reserve the question of costs and make orders to facilitate its determination.

I certify that the preceding seven hundred and two (702) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.

Associate:

Dated:       21 February 2025

SCHEDULE OF PARTIES

NSD 1099 of 2021
Respondents
Fourth Respondent:	SIMON TRIPP