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

FEDERAL COURT OF AUSTRALIA
Reiche v Neometals Ltd (No 2) [2025] FCA 125

File number: NSD 1273 of 2024

Judgment of: FEUTRILL J

Date of judgment: 28 February 2025

Catchwords:
CORPORATIONS – claim for compensation and other relief under s 1317AD and s 1317AE of the Corporations Act 2001 (Cth) – consideration of whistleblower protections under Pt 9.4AAA of the Act – onus of disproving claim under s 1317AD(2B) of the Act – attribution of conduct and state of mind to company – detrimental conduct – redundancy and termination with immediate effect – rejection of claim for time-in-lieu – bullying and harassment – belief or suspicion of qualifying disclosure – reason or part of reason for detrimental conduct

PRACTICE AND PROCEDURE – application for non-publication and non-disclosure of identity of non-parties

Legislation:
Acts Interpretation Act 1901 (Cth) ss 15AA. 15AB

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) Sch2; Pt 2

Corporations Act 2001 (Cth) ss 124(1), 127, 134, 1311(1), 198A, 1317(1)(a), 1317(1)(a)(ii), 1317(1)(b), 1317(1)(b)(ii), 1317(1)(c), 1317(3)(b)(ii), 1317(4), 1317AA, 1317AA(1)(c), 1317AA(2)(c), 1317AA(4), 1317AA(5), 1317AAA(a). 1317AAA(b), 1317AAB, 1317AAB(a), 1317AAC, 1317AAD , 1317AADA, 1317AAE, 1317AB, 1317AC, 1317AD, 1317AD(1), 1317AD(1)(a), 1317AD(1)(b), 1317AD(1)(c), 1317AD(2)(b), 1317AD(3)(b), 1317AD(2B), 1317ADA, 1317AE, 1317AE(1), 1317AG, 1317AH, 1317AI, 1317E; Ptt 2G.1, 5.4AAA, 9.4AAA

Disability Discrimination Act 1992 (Cth) s 35

Fair Work Act 2009 (Cth) ss 346, 360, 361, 789F; Pt 3-1

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

Federal Court of Australia Act 1976 (Cth) s 37AF, s 37AG

Migration Act 1958 (Cth)

Public Interest Disclosure Act 2013 (Cth)

Sex Discrimination Act 1984 (Cth) s 28A

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

Migration Amendment (Work Related Visa Conditions) Regulations 2024 (Cth) Sch 1

Migration Regulations 1994 (Cth) Sch 8

Cases cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58; 201 IR 441

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332

Australasian Meat Industry Employees Union v. R.J. Gilbertson (Queensland) Pty Ltd [1988] FCA 754

Blair v Australian Motor Industries Ltd [1982] FCA 145; 61 FLR 283

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500

Browne v Dunn (1894) 6 R 67

Childs v Metropolitan Transport Trust (1981) IAS Current Review 946

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384

Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169

Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329

Community & Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; 99 IR 238

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165

Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166

Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377

Director General, Department of Education and Training v MT [2006] NSWCA 270; 67 NSWLR 237

Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640

Elliott v Kodak Australasia Pty Ltd [2001] FCAFC 1804; 129 IR 251

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503

Fitzgerald v Masters [1956] HCA 53; 95 CLR 420

General Motors Holden Pty Ltd v Bowling (1976)12 ALR 605

Hodkinson v Commonwealth [2011] FMCA 171; 207 IR 129

IW v City of Perth [1997] HCA 30; 191 CLR 1

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34

McLennan v Taylor [1966] 2 NSWR 685; 85 WN(PT1) (NSW) 525

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

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

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104

Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

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

Pearce v WD Peacock & Co Ltd [1917] HCA 28; 23 CLR 199

Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311

Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473

Quinlan v ERM Power Ltd [2021] QSC 35; 7 QR 377

Salomon v A Salomon & Co Ltd [1897] AC 22

Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332

Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191

The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; 157 IR 470

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165

Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 519

Date of hearing: 4-8 November 2024, 9-11 December 2024

Counsel for the Applicant: Mr DP O’Dowd

Solicitor for the Applicant: Gillis Delaney Lawyers

Counsel for the Respondent: Mr N Ellery

Solicitor for the Respondent: Herbert Smith Freehills

ORDERS

NSD 1273 of 2024

BETWEEN:
CHRISTIAN GERHARD REICHE

Applicant

AND:
NEOMETALS LTD (ACN 009 116 631)

Respondent

ORDER MADE BY:

FEUTRILL J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.Paragraphs 2 and 3 of the orders made on 20 September 2024, as amended on 24 October 2024, be discharged.
3.The reasons for these orders not be published, other than to the parties, until after 4.30pm (AWST) on 7 March 2025.
4.The question of the costs of the proceeding be reserved.
5.By 4.30pm (AWST) on 12 March 2025 the respondent file and serve any minute of proposed consent orders or, failing agreement, the parties file and serve competing minutes of proposed orders, concerning the costs of the proceeding.
6.Subject to paragraph 5 of these orders:
(a)by 4.30pm (AWST) on 12 March 2025 the respondent file and serve a written outline of submissions (limited to 5 pages) and any materials in support of its minute of proposed orders concerning the costs of the proceeding.
(b)by 4.30pm (AWST) on 26 March 2025 the applicant file and serve a written outline of submissions (limited to 5 pages) and any materials in support of his minute of proposed orders concerning the costs of the proceeding.

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

REASONS FOR JUDGMENT
FEUTRILL J:
Introduction

Section 1317AD(1) of the Corporations Act 2001 (Cth) provides that a court may make an order for compensation or other relief under s 1317AE in relation to a person if that person engages in conduct that causes detriment to another person (whistleblower) and when the person engages in the detrimental conduct that person believes or suspects that the whistleblower made, may have made, proposed to make or could make a whistleblower disclosure that qualifies for protection under Pt 9.4AAA and that belief or suspicion was the reason or part of the reason for the detrimental conduct. Section 1317AD(2B) provides that in proceedings in which a whistleblower seeks an order under s 1317AE in relation to another person, the whistleblower bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the other person has engaged in detrimental conduct. If that onus is discharged, then the other person bears the onus of proving that the claim is not made out.
The applicant (Mr Reiche) was an employee of the respondent (Neometals). Mr Reiche claims compensation and other relief against Neometals under s 1317AD(1) and s 1317AE of the Act. He alleges that he made six disclosures of information to Neometals that qualify for protection under Pt 9.4AAA and that Neometals engaged in detrimental conduct in that it made a decision to make Mr Reiche’s role redundant, thereafter terminated Mr Reiche’s employment with immediate effect, rejected a claim Mr Reiche had made for time-in-lieu (TIL) and bullied and harassed Mr Reiche after he had made the fifth and sixth alleged disclosures. Neometals admits that the decision to make Mr Reiche redundant and to terminate his employment with immediate effect was detrimental conduct, but it denies that rejection of the TIL claim was detrimental conduct and that it bullied or harassed Mr Reiche.
Mr Reiche is a citizen of Germany. As the termination of his employment with immediate effect had an adverse impact on his visa status and part of the relief he seeks is reinstatement of his employment, the matter was heard on an expedited basis. The issues were determined on concise statements, augmented by affidavits and there was a truncated and limited process of discovery. The principal issues in the proceeding concern whether any person who made or was involved in making decisions that resulted in the redundancy, termination, rejection of the TIL claim and other alleged detrimental conduct believed or suspected that there was an actual or potential whistleblower disclosure by Mr Reiche when the decisions were made. Ancillary issues concern whether rejection of the TIL claim was a detriment to Mr Reiche and whether Neometals had engaged in conduct that caused bullying and harassment of Mr Reiche.
Except for the allegation of bullying and harassment, Neometals accepted that Mr Reiche had satisfied the evidentiary threshold of adducing or pointing to evidence that suggests a reasonable possibility that Neometals engaged in detrimental conduct. Therefore, for the most part, the question for determination is whether Neometals has discharged the onus of proving that Mr Reiche’s claim under s 1317AD(1) is not made out. Here, the focus of the evidence was on the state of mind and reasons of the natural persons involved in Neometals’ decision-making.
For the reasons that follow, I am not satisfied that Mr Reiche adduced or pointed to evidence that suggests a reasonable possibility that Neometals engaged in conduct that caused detriment to him in the form of bullying or harassment. I am also not satisfied the rejection of the TIL claim was, in the circumstances of this case, detrimental conduct. In any event, I have concluded that Neometals has discharged its onus of proof and has demonstrated that Mr Reiche’s claim under s 1317AD(1) is not made out. In short, a belief or suspicion that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA of the Act was not the reason or part of the reason his role was made redundant, his employment was terminated with immediate effect or his TIL claim was rejected.
Issues
Identification of the issues in the proceeding was ordered to be by concise statements. The parties were also ordered to file an agreed list or competing lists of principal legal and factual issues in dispute and that require determination before the commencement of the trial. Neometals filed that list, but Mr Reiche failed to comply with the order.
Insofar as Mr Reiche’s case is concerned, I consider it to be confined to the allegations raised in his concise statement. However, where it is evident that the facts deposed in the affidavit filed in support of his originating process relate to the issues raised in his concise statement and no objection to the receipt of that evidence was taken on the grounds of relevance, I have treated the facts deposed as particulars of the allegations raised in his concise statement. As a consequence, the allegations Mr Reiche made of detrimental conduct in the category of bullying or harassment were somewhat expanded. Likewise, I have treated the facts deposed in Neometals’ affidavits as particulars of its defence. Otherwise, the extent to which I have accepted the facts deposed in the affidavits is addressed later in these reasons when setting out the findings of fact.
Background
To understand the issues that arise for determination it is necessary to explain some of the non-controversial background to the proceeding.
Neometals is registered in Australia and is listed on the Australian Securities Exchange. A related company, ACN 630 589 507 Pty Ltd, is the owner of certain technology for lithium-ion battery recycling comprised of patents and knowhow. Neometals entered into a joint venture with SMS Group GmbH, a German company, for the commercialisation of that technology. Neometals and SMS incorporated Primobius GmbH, also a German company, as the vehicle through which to conduct the joint venture. Neometals, ACN 630, SMS and Primobius have entered into a formal shareholders agreement that governs the manner in which Primobius and the joint venture is to be conducted.
Primobius has an advisory board comprised of two SMS appointees and two Neometals appointees. It also has a management board comprised of an SMS appointee, a Neometals appointee and a third person. In October 2023 Neometals employed Mr Reiche in the role of head of recycling. As part of that role, Mr Reiche was appointed as a managing director of Primobius and Neometals’ representative on the management board of that company. At all material times, the SMS appointee was Horst Krenn and the third person was Dr Michel Siemon.
During Mr Reiche’s employment, the joint venture was in the process of constructing a battery recycling plant in Germany for Mercedes-Benz known as the MURG project. A company related to SMS, SMS Group Technologies Austria (SAT Austria), and Primobius had entered into an agreement by which SAT Austria was performing the engineering, procurement and construction for the MURG project. Primobius had employees that it employed directly and it also had secondees provided by SMS and Neometals. The Primobius operation was conducted in Germany and Mr Reiche was located in Perth, Western Australia.
Steven Cole is the non-executive chair of Neometals and is a Neometals appointee on the Primobius advisory board. Christopher Reed is the chief executive officer of Neometals and a Neometals appointee on the Primobius advisory board. Dr Jennifer Purdie was a non-executive director of Neometals. From May 2024 Dr Purdie was the chief operations officer and an executive director of Neometals. Lee Guthrie and Douglas Ritchie are non-executive directors of Neometals. Christopher Kelsall is the chief financial officer of Neometals. Mr Kelsall commenced as CFO on 1 July 2024. Before his appointment, Jason Carone was CFO. Cathal Smith was general (legal) counsel of Neometals. He held that role for a short period before resigning. He continued to provide services as in-house legal counsel on contract for some time after his resignation including during the proceeding. Amanda Di Virgilio was employed by Neometals as people and culture manager. Ms Di Virgilio’s role was also made redundant and her employment terminated. Merryl Gray was employed by Neometals before Mr Reiche’s employment. Ms Gray had been Neometals’ appointee on the Primobius management board before Mr Reiche.
Mr Reiche’s case
Mr Reiche alleges that he made six disclosures of information that qualified for protection under Pt 9.4AAA of the Act. These relate to the management, business or affairs of Primobius.
First alleged qualifying disclosure – DMF reverse engineering
As part of construction of the MURG plant it was necessary for SMS to procure certain dual media filters (DMF). It was initially proposed that the DMF would be acquired from and supplied by SpinTek Filtration Inc.
Mr Reiche alleges, in effect, that he had reasonable grounds to suspect that SMS, through Mr Krenn and with the assistance of a former employee of Neometals, collaborated with DSB Anlagenbau GmbH to unlawfully acquire and exploit the proprietary intellectual property of SpinTek to enable Primobius to acquire DMF from DSB for a lower cost that acquiring them from SpinTek.
Mr Reiche alleges that on 10 April 2024 he had a conversation with Mr Reed during which Mr Reiche informed Mr Reed of his concern, in substance, that Primobius was knowingly concerned in the receipt of DMF that DSB had reverse engineered using SpinTek’s intellectual property.
Second and third alleged qualifying disclosures – Krenn conflict of interest and Primobius strategic risks
Mr Reiche alleges, in substance, that he had reasonable grounds to suspect that Neometals was exposed to certain strategic risks in relation to the joint venture with SMS and its shareholding and interest in Primobius. Mr Reiche alleges that he disclosed these strategic risks to the Neometals board at meetings in February and March 2024. Mr Reiche alleges that he disclosed a conflict of interest of Mr Krenn in that he was a managing director of Primobius and SAT Austria, that Primobius was exposed to financial risks because of asymmetrical contracts that disproportionately favoured SMS (SAT Austria) over Primobius, the risk of a cash call, initiated by SMS and designed to dilute Neometals’ interest in Primobius, a lack of open-book arrangements with SMS (SAT Austria) in relation to the MURG project, and that Primobius was losing control over critical decisions, including contract execution and engineering scope for projects like the MURG project. These risks were compounded by the power imbalance in the joint venture, where SMS’s influence was dominating the strategic direction of Primobius. Mr Reiche was of the view that Neometals was, in effect, outvoted within Primobius.
Fourth and fifth alleged qualifying disclosures – simulated signature on Primobius purchase order
Mr Reiche alleges that a document (acceptance of a purchase order from Mercedes-Benz in relation to the MURG project) was required to be signed by two managing directors of Primobius. At the relevant date of the document, it was to be signed by Mr Krenn and Ms Gray.
Mr Reiche alleges, in substance, that he had reasonable grounds to suspect that the signature of Ms Gray on that document was ‘forged’ based on a handwriting expert report that he commissioned and obtained after he became suspicious of the veracity of Ms Gray’s signature on the document.
Mr Reiche alleges that on 10 April 2024 he disclosed the ‘forgery’ to Mr Cole. Mr Reiche alleges that on 11 April 2024 he disclosed the same information to Mr Reed.
Events after the first to fifth alleged qualifying disclosures
Mr Reiche alleges that after the first to fifth alleged qualifying disclosures no action was taken by Neometals, either through its board or by individual officers, to address the matters raised including the strategic risks, governance issues, reverse engineering, conflicts of interest and forgery.
Mr Reiche alleges that, after the appointment of Dr Purdie as COO in May 2024, she acted toward him in an unprofessional manner, being dismissive and seemingly unconcerned with matters of technical accuracy, and Mr Reiche felt bullied and harassed when dealing with Dr Purdie.
Mr Reiche alleges that Dr Purdie’s conduct included the following.
(a)Dr Purdie disregarded Mr Reiche when he ought to have been copied or included in Neometals’ affairs.
(b)Dr Purdie recommended that employees, of whom Mr Reiche was line manager, bypass him.
(c)Dr Purdie removed Mr Reiche’s responses from email chains in her communications with employees of whom Mr Reiche was line manager.
(d)Dr Purdie arbitrarily and without consultation terminated a contractor, Michael Prassas, who was providing valuable services and of whom Mr Reiche was line manager.
(e)Between June and August 2024 Dr Purdie instructed Mr Reiche to revise Neometals’ risk register and, in so doing, ignored feedback from Mr Reiche about serious risks associated with that course of action and, thereby, Dr Purdie dramatically increased Mr Reiche’s workload and prevented the timely completion of the risk register.
(f)Dr Purdie’s conduct concerning the risk register compromised the risk management process, undermined transparency, and placed Mr Reiche at risk of blame for risks that arose from decisions predating his employment.
Sixth alleged qualifying disclosure – 9 July letter

Mr Reiche alleges that on 9 July 2024 he met with Mr Smith and provided him with a letter dated 9 July 2024 that, in its terms, stated that it was a disclosure under Pt 9.4AAA. Further, the letter details, amongst other things, the matters set out in the first to fifth alleged qualifying disclosures. Mr Reiche alleges that on 11 July 2024 he had a further meeting with Mr Smith and Mr Kelsall.
Events after the sixth alleged qualifying disclosure
Mr Reiche alleges that in July 2024 Dr Purdie interfered with Mr Reiche’s obligations as managing director of Primobius by intervening, without any basis, in the process for recruitment of two roles within Primobius that Mr Reiche had initiated.
Mr Reiche alleges that in August 2024 Mr Cole gave a report to the Primobius advisory board with respect to a ‘Health Check’ audit and indicated that the report ‘raised no red flags’ and provided recommendations only rather than identifying any major issues. Mr Reiche alleges that Mr Cole’s characterisation of the Health Check report was misleading because Mr Reiche had informed him that the Health Check report revealed matters of real concern that required action.
Mr Reiche alleges that on 26 July 2024, without notice, justification or explanation, his delegated authority to approve payment for invoices without board approval was reduced from AUD100,000 to AUD25,000.
Mr Reiche alleges that on 6 August 2024 he was excluded by Mr Cole and Dr Purdie from a leadership event with the two other managing directors of Primobius (Mr Krenn and Dr Siemon) during a visit by them to Australia.
Mr Reiche alleges that on 17 and 19 August 2024 he sent Mr Smith and Mr Kelsall emails following up on the 9 July letter and outlining incidents and health impacts upon him that he alleges occurred after he provided them with the letter. On 19 August 2024 he met with Mr Smith and Mr Kelsall to discuss the next steps regarding the disclosures in the 9 July letter. On 20 August 2024 Mr Reiche sent Mr Smith and Mr Kelsall an email indicating, in effect, that he had provided them with further information and he requested that the investigation proceed in accordance with Neometals’ whistleblower policy.
Mr Reiche alleges that on 19 August 2024 he submitted a claim for 1,118 hours of TIL and on 21 August 2024 Dr Purdie rejected his TIL claim without proper justification.
Mr Reiche alleges that on 22 August 2024 he received a redundancy notification letter from Neometals. Further, on 4 September 2024 he received a redundancy confirmation letter advising that his employment was terminated immediately and would be paid out in lieu of notice.
Alleged detrimental conduct
Mr Reiche alleges that his redundancy was not a genuine redundancy. He alleges that it was used as an improper means of terminating his employment. Further, the purported notice of redundancy of his position on 22 August 2024 and termination of his employment on 4 September 2024 was a ‘detriment’ to him within the meaning of s 1317AD(1)(a) and s 1317ADA of the Act.
Mr Reiche alleges that he is not an Australian citizen or permanent resident of Australia. He has been granted a Temporary Skill Shortage (Subclass 482) visa under the provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) which permits him to travel to, enter and remain in Australia. Upon termination of his employment Mr Reiche was no longer able to satisfy condition 8607 of the Regulations and, if he is not able to find another employer who will sponsor him within 180 days of the termination of his employment, he will not be able to remain in Australia on the Subclass 482 visa. (Although Mr Reiche’s affidavit filed with the originating application identified this as a 60-day period, in the course of proceedings it was accepted a180-day period is applicable.) Mr Reiche alleges that he has applied for a Global Talent (Subclass 858) visa and that the loss of his employment with Neometals could adversely affect the outcome of that application and, therefore, his ability to permanently reside in Australia.
Mr Reiche alleges that the decision to make payment in lieu of notice was also a ‘detriment’ to him in that he is exposed to the risk of losing his existing Subclass 482 visa or not obtaining the grant of the Subclass 858 visa. Or at least, he has suffered a detriment in that he has lost three additional months within which to find alternative employment in Australia.
Mr Reiche alleges that he was entitled to 1,118 hours of TIL in accordance with a Neometals TIL document that he alleges formed part of his entitlements under his contract of employment. Further, upon termination of his employment, he was entitled to be paid for that TIL as an accrued entitlement. The rejection of the TIL claim is alleged to be a detriment caused by Neometals’ conduct.
Mr Reiche claims that Neometals’ conduct has resulted in him suffering from extreme emotional and psychological distress. Although not entirely clear, it appears that Mr Reiche alleges that the alleged conduct of Dr Purdie he described as making him feel bullied and harassed referred to in paras [22] and [23] and the alleged conduct referred to in paras [25] to [28] caused him to suffer the alleged emotional and psychological distress. Accordingly, the alleged emotional and psychological distress was a detriment caused by conduct attributable to Neometals within the meaning of s 1317AD(1)(a) and s 1317ADA of the Act.
Mr Reiche’s contentions
Mr Reiche contends that the subject matter of the first to fifth alleged qualifying disclosures were matters in respect of which he had reasonable grounds to suspect concerned misconduct or an improper state of affairs or circumstances in relation to Neometals for the purposes of s 1317AA(4) of the Act. The first to sixth disclosures were made to eligible recipients for the purposes of s 1317AAC of the Act. Further, none of the alleged qualifying disclosures were personal workplace grievances within the meaning of s 1317AADA of the Act.
In substance, Mr Reiche contends that, because he has suffered detriment caused by conduct of Neometals, in accordance with s 1317AD(2B) of the Act, Neometals bears the onus of proving that the reason or a part of the reason it engaged in that detrimental conduct was not a belief or suspicion that Mr Reiche had made, may have made, proposed to make or could have made a disclosure that qualifies for protection under Pt 9.4AAA of the Act.
Mr Reiche claims pursuant to s 1317AE(1):
(a)an injunction to restrain Neometals from engaging in detrimental conduct;
(b)an order reinstating him in the position of head of recycling or a comparable position;
(c)an order requiring Neometals to compensate him for loss, damage and injury as a result of the detrimental conduct; and
(d)exemplary damages.
A separate claim that there was a contravention of s 1317AC (victimisation prohibited) was mentioned in Mr Reiche’s submissions. That claim was not raised in Mr Reiche’s concise statement and Mr Reiche has the onus of positively proving the elements of a cause of action founded on s 1317AC because there is no equivalent in that provision to s 1317AD(2B). As it was not part of his concise statement, I do not regard a claim under s 1317AC as squarely raised in the proceeding and, therefore, it is not addressed in these reasons. Nonetheless, the elements a cause of action for a contravention of s 1317AC(1) are materially same as the relevant elements of Mr Reiche’s claim for an order for compensation under s 1317AD(1). Therefore, if Mr Reiche is unable to succeed on a claim under s 1317AD(1) he is also unable to succeed on a claim involving an alleged contravention of s 1317AC(1).
Neometals’ case
Matters admitted and denied – section 1317AD(1)(a)
Neometals admits the following matters and, therefore, these are not matters in question in the proceeding.
(1)Mr Reiche is and was at all material times an ‘eligible whistleblower’ within the meaning of s 1317AAA(b) of the Act.
(2)Neometals is and was at all material times a regulated entity for the purposes of s 1317AAB(a) of the Act.
(3)Each of Mr Reed, Mr Cole, Mr Smith, Mr Kelsall and each of Neometals’ directors was an eligible recipient for the purposes of s 1317AAC of the Act.
(4)At various times during his employment, Mr Reiche disclosed information to officers and employees of Neometals concerning Mr Reiche’s suspicion of an alleged forgery by SMS and alleged reverse engineering SMS was involved in, and strategic, governance and financial risks in relation to Primobius.
(5)On 9 July 2024 Mr Reiche gave Mr Smith the 9 July letter in which he disclosed information concerning Mr Reiche’s suspicion of misconduct and an improper state of affairs in relation to Neometals and in which he claimed the protections applicable to eligible whistleblowers under Pt 9.4AAA of the Act.
(6)On 9 July 2024, with Mr Reiche’s consent, Mr Smith provided the 9 July letter to Mr Kelsall.
(7)Neometals decided to make Mr Reiche redundant on 21 August 2024 and that was conduct that caused Mr Reiche detriment.
(8)Neometals decided to terminate Mr Reiche’s employment with immediate effect on 4 September 2024 and that was conduct that caused Mr Reiche detriment.
Neometals admits that it decided to reject Mr Reiche’s TIL claim but denies that this was conduct that caused Mr Reiche detriment. Neometals alleges that Mr Reiche had no legal right to the claimed TIL under the terms of his contract of employment and, therefore, rejection of the TIL claim cannot be a detriment.
Neometals admits it decided to reduce Mr Reiche’s delegated authority but denies that was conduct that caused him detriment. Neometals alleges that a reduction in delegated authority is not a detriment within the meaning of Pt 9.4AAA of the Act.
Neometals denies that it engaged in conduct that constituted bullying or harassment. Neometals alleges that its conduct, through Dr Purdie, was reasonable management action conducted in a reasonable and professional manner. However, Neometals admits that if, contrary to its denial it is found to have engaged in bullying or harassment, that was conduct that caused Mr Reiche detriment. It also appears that Neometals does not admit or deny that Mr Reiche suffered psychological injury or that such injury was caused by any alleged bullying, harassment or other conduct on the part of Neometals.
Alleged state of mind of directors, officers and employees – section 1317AD(1)(b)
Neometals alleges, in effect, without admitting that any of the alleged qualifying disclosures was, in fact and law, a qualifying disclosure for the purposes of s 1317AA of the Act, the following matters.
(1)Each of the directors, officers or employees of Neometals to whom Mr Reiche made the first to fifth alleged qualifying disclosures did not believe or suspect that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA when he made those disclosures or thereafter.
(2)As of 9 July 2024, Mr Smith and Mr Kelsall, by reason of receipt of the 9 July letter, believed that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals is attributable to the conduct of Mr Smith or Mr Kelsall.
(3)As of 9 July 2024, Ms Di Virgilio believed, by reason of a conversation with Mr Kelsall in which Mr Kelsall asked for advice about what to do if he had received a whistleblower disclosure, that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals, except for the decision to terminate his employment and to terminate it with immediate effect, is attributable to the conduct of Ms Di Virgilio.
(4)As of the afternoon of 21 August 2024, by reason of receiving letters from Mr Reiche’s solicitors addressed to each of them, each of Neometals’ directors believed that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals took place after they had that state of mind.
Alleged reasons for redundancy and termination – section 1317AD(1)(c)
Neometals alleges that the reasons for its admitted detrimental conduct were as follows.
(1)The decision to make Mr Reiche’s role redundant was a decision of the Neometals board and that was made solely because the board decided to restructure the organisation by significantly reducing Neometals’ cost base to conserve capital due to its financial position.
(2)The decision to select Mr Reiche’s role for redundancy was solely because:
(a)Neometals no longer required Mr Reiche’s role to be performed by anyone. His role was underutilised and some duties were already being, or were to be, performed by others including an employee who reported to Mr Reiche and the remaining duties could be distributed to other employees including Dr Purdie.
(b)Mr Reiche was not performing his role to the expected level and he had poor relationships with stakeholders, peers and team members.
(c)The salary for Mr Reiche’s role was significant and Neometals needed to make cost savings due to its financial position.
(3)The decision to terminate Mr Reiche’s employment was a decision of Ms Di Virgilio. She made that decision solely because Mr Reiche’s role was redundant and there were no available suitable alternative roles to which Mr Reiche could be redeployed.
(4)The decision to terminate Mr Reiche’s employment with immediate effect and to pay him in lieu of his notice period was made solely because Neometals had attempted to engage with Mr Reiche on numerous occasions between 21 August and 2 September 2024 to consult with him about the redundancy. Based on Mr Reiche’s responses, including through his legal representatives, Ms Di Virgilio formed the view that Mr Reiche was either unwilling or unable to engage meaningfully with Neometals and may continue not to engage meaningfully if he were to serve out his notice period and that the relationship between Neometals and Mr Reiche had broken down irretrievably.
(5)The decision not to extend the period for Mr Reiche to consult about the effects of the redundancy was made by Ms Di Virgilio. That decision was made solely for the reasons that:
(a)Neometals had attempted on numerous occasions between 21 August and 2 September 2024 to consult with Mr Reiche about the redundancy. Based on Mr Reiche’s responses, including through his legal representatives, Ms Di Virgilio formed the view that Mr Reiche was either unwilling or unable to engage meaningfully with Neometals on the consultation.
(b)Neometals had announced to the ASX on 22 August 2024 that it was making roles redundant and implementing cost-saving measures and had otherwise implemented the proposed restructure insofar as it concerned all other employees whose roles were made redundant.
(c)It was financially detrimental to Neometals to continue waiting for Mr Reiche to consult with Neometals.
Alleged reasons for denied detrimental conduct – section 1317AD(1)(c)
Neometals alleges that the reason for Dr Purdie’s conduct (and the conduct of any other Neometals director, officer or employee) which Mr Reiche alleges was bullying or harassment was solely because Mr Reiche’s role was critical to the success of Primobius and, in turn, Neometals. Neometals, based on the observations of Dr Purdie and Ms Di Virgilio, believed that Mr Reiche was not performing his role to the standard required of an executive in his position.
Neometals alleges that Mr Reiche’s TIL claim was rejected solely for the reason that Neometals, through Dr Purdie, believed that the claim had been submitted in error because it lacked justification, amounted to an implausible amount of hours when considered in the context of the applicants’ period of employment and was in addition to 255 hours of TIL that had already been approved for the same period.
Neometals alleges that the decision to reduce Mr Reiche’s delegated authority was solely for the reason that Neometals had revised the authority limits of all its employees (including Mr Reiche) because its business had reduced in scope.
Relief – section 1317AE(1)
It follows that irrespective of whether or not the elements of s 1317AD(1)(a) and s 1317AD(1)(b) are satisfied, Neometals alleges and contends that the sole reason for its conduct was unrelated to any belief or suspicion that Mr Reiche had made, may have made, proposed to make, or could have made a disclosure that qualified for protection under Pt 9.4AAA of the Act. Neometals also contends, even if the elements of s 1317AD(1) are satisfied the Court should not order any relief under s 1317AE(1).
Neometals contends that injunctive relief is not appropriate because, in effect, its conduct is spent. There is nothing prospective to restrain. Mr Reiche has been made redundant and his contract of employment has been terminated. Further, Mr Reiche has been paid all his contractual and statutory entitlements in relation to the termination of his employment. For that reason and because it could and would have terminated his employment lawfully by reason of a genuine redundancy, Neometals contends that Mr Reiche has suffered no loss or damage by reason of his redundancy and termination of his employment.
Neometals contends that reinstatement is not appropriate because Mr Reiche’s role has been made redundant and also because the parties’ relationship has broken down irretrievably.
Neometals contends, in any event, that exemplary damages are not appropriate because its conduct was not egregious, malicious or with intentional disregard of Mr Reiche’s rights.
Legislative framework
There has been little judicial consideration of the provisions of Pt 9.4AAA of the Act. As will be explained later, some guidance for the interpretation of these provisions may be obtained from the approach taken to the construction of similar provisions in the Fair Work Act 2009 (Cth). However, there is a limit to that guidance and the provisions of Pt 9.4AAA must be construed in accordance with established principles of statutory interpretation.
Justice Katzmann recently considered the legislative framework and provisions of Pt 9.4AAA, including s 1317AA, s 1317AD and s 1317AE, in Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 at [122] – [153]. These reasons were prepared in draft before publication of Mount. Much of the following explanation of Pt 9.4AAA of the Act sets out the same or similar observations as Katzmann J regarding the legislative framework, context and purpose of Pt 9.4AAA. As a consequence of the different issues arising in this case to those that were considered in Mount, these reasons have a different emphasis on the provisions of Pt 9.4AAA that are applicable to this case, but otherwise I regard the following explanation to be consistent with the views Katzmann J expressed in Mount.
Applicable principles of statutory interpretation
The analysis of the meaning of a provision in a statute or legislative instrument starts and finishes with the text, but the text must be considered in context and having regard to the legislative purpose: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Where different interpretations are open, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. To that end, material not forming part of the Act that is capable of assisting in the ascertainment of the meaning of the provision to be considered may be taken into account, either to confirm the ordinary meaning of the provision or to determine the meaning in cases where meaning is ambiguous, obscure, absurd or unreasonable: Interpretation Act, s 15AB.

In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) summarised the ‘modern approach to statutory interpretation’ as follows:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315; 60 ALR 509]. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.
Whistleblower provisions context
Part 9.4AAA of the Act contains provisions intended to encourage individuals to disclose, and to protect individuals who disclose, misconduct or an improper state of affairs or circumstances in relation to regulated entities to an appropriate regulator or internally within the entity itself.
Part 9.4AAA of the Act was originally inserted into the Act in accordance with the recommendations of the Corporations Law Economic Reform Program, CLERP 9. It was enacted as Pt 2 of Sch 4 of the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth). There were also a number of other statutes that contained whistleblower provisions concerning entities engaged in the financial sector. As a consequence of the patchwork of whistleblower provisions, there were gaps in the coverage of the protections, inconsistencies between the statutes including the manner in which an individual qualified as a whistleblower and legal complexity that was perceived to have the effect of discouraging whistleblowers.
In 2016 the Commonwealth Government published Australia’s First Open Government National Action Plan 2016-18. In that document it committed to improving whistleblower protections in the tax and corporate sectors by 30 June 2018. Part of that process included establishing a parliamentary inquiry which published the Parliamentary Joint Committee on Corporations and Financial Services - Whistleblower Protections Report in September 2017. The Parliamentary Joint Committee report followed the independent review of the Public Interest Disclosure Act 2013 (Cth) by the then Integrity Commissioner, Phillip Moss AM, and report published in July 2016. The Parliamentary Joint Committee report contained a number of recommendations concerning: consistency of whistleblower protections across sectors; disclosable conduct; defining whistleblowers and protection thresholds; anonymity of whistleblowers; internal, regulatory and external reporting channels; disclosure to Australian law enforcement agencies; external disclosures; protection, remedies and sanctions for reprisals; reward systems; and a whistleblower protection authority.
In 2019 the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) was enacted. That amending Act repealed the whistleblower provisions in legislation regulating the financial sector and made substantial amendments to Pt 9.4AAA. In effect, the whistleblower provisions for the corporate and financial sector were repealed and re-enacted as a consolidated and consistent regime as part of the Act.
The Explanatory Memorandum for the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 indicates that the Bill was the government’s response to its commitment in the First OGNAP and the recommendations contained in the Parliamentary Joint Committee report. The Bill was said to address gaps and uncertainties in the protections and remedies available to corporate and financial sector whistleblowers by bringing the whistleblower laws in other financial statutes into the Act and creating a new regime for the protection of individuals who disclose wrongdoing in the tax sphere.
Part 9.4AAA
Part 9.4AAA of the Act contains the following relevant provisions (notes omitted):
1317AA        Disclosures qualifying for protection under this Part
Disclosure to ASIC, APRA or prescribed body
(1)A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:
(a)the discloser is an eligible whistleblower in relation to a regulated entity; and
(b)       the disclosure is made to any of the following:
(i)ASIC;
(ii)APRA;
(iii)a Commonwealth authority prescribed for the purposes of this subparagraph in relation to the regulated entity; and
(c)       subsection (4) or (5) applies to the disclosure.
Note:Section 1317AAD (public interest disclosure and emergency disclosure) and paragraph 1317AB(1)(c) (protection from self-incrimination etc.) may apply to a disclosure covered by this subsection.
Disclosure to eligible recipients
(2)A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:
(a)the discloser is an eligible whistleblower in relation to a regulated entity; and
(b)the disclosure is made to an eligible recipient in relation to the regulated entity; and
(c)subsection (4) or (5) applies to the disclosure.
Disclosure to legal practitioner
(3)A disclosure of information by an individual qualifies for protection under this Part if the disclosure is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part.
Disclosable matters
(4)This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:
(a)the regulated entity; or
(b)if the regulated entity is a body corporate—a related body corporate of the regulated entity.
(5)Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:
(a)the regulated entity, or an officer or employee of the regulated entity;
(b)if the regulated entity is a body corporate—a related body corporate of the regulated entity, or an officer or employee of a related body corporate of the regulated entity;
has engaged in conduct that:
(c)constitutes an offence against, or a contravention of, a provision of any of the following:
(i)        this Act;
(ii) the ASIC Act;
(iii)      the Banking Act 1959;
(iiia)     the Financial Accountability Regime Act 2023;
(iv)      the Financial Sector (Collection of Data) Act 2001;
(v)       the Insurance Act 1973;
(vi)      the Life Insurance Act 1995;
(vii)     the National Consumer Credit Protection Act 2009;
(viii)     the Superannuation Industry (Supervision) Act 1993;
(ix)      an instrument made under an Act referred to in any of subparagraphs (i) to (viii); or
(d)constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or
(e)represents a danger to the public or the financial system; or
(f)is prescribed by the regulations for the purposes of this paragraph.
…
1317AADA     Personal work-related grievances
(1)Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser) to the extent that the information disclosed:
(a)concerns a personal work-related grievance of the discloser; and
(b)does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.
Note:A disclosure concerning a personal work-related grievance that is made to a legal practitioner may qualify for protection under this Part under subsection 1317AA(3).
(2)For the purposes of subsection (1), the information disclosed concerns a personal work-related grievance of the discloser if:
(a)the information concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally; and
(b)the information:
(i)does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and
(ii)does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).
Examples of grievances that may be personal work-related grievances under paragraph (a) (but subject to paragraph (b)) are as follows:
(a)an interpersonal conflict between the discloser and another employee;
(b)a decision relating to the engagement, transfer or promotion of the discloser;
(c)a decision relating to the terms and conditions of engagement of the discloser;
(d)a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.
…
1317AC        Victimisation prohibited
Actually causing detriment to another person
(1)       A person (the first person) contravenes this subsection if:
(a)the first person engages in conduct; and
(b)the first person’s conduct causes any detriment to another person (the second person); and
(c)when the first person engages in the conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(d)the belief or suspicion referred to in paragraph (c) is the reason, or part of the reason, for the conduct.
…
1317ADCompensation and other remedies—circumstances in which an order may be made
(1)A court may make an order under section 1317AE in relation to a person (the first person) if:
(a)the first person engages in conduct (detrimental conduct) that:
(i)causes any detriment to another person (the second person); or
(ii)constitutes the making of a threat to cause any such detriment to another person (the second person); and
(b)when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and
(c)the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.
…
Burden of proof
(2B)In proceedings where a person seeks an order under section 1317AE in relation to another person:
(a)the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:
(i)if subsection (1) of this section applies—paragraph (1)(a); or
(ii)if subsection (2) of this section applies—paragraph (1)(a), as mentioned in paragraph (2)(b); or
(iii)if subsection (2A) of this section applies—paragraphs (2A)(a) and (d); and
(b)if that onus is discharged—the other person bears the onus of proving that the claim is not made out.
…
1317ADA       Meaning of detriment
In sections 1317AC and 1317AD, detriment includes (without limitation) any of the following:
(a)dismissal of an employee;
(b)injury of an employee in his or her employment;
(c)alteration of an employee’s position or duties to his or her disadvantage;
(d)discrimination between an employee and other employees of the same employer;
(e)harassment or intimidation of a person;
(f)harm or injury to a person, including psychological harm;
(g)damage to a person’s property;
(h)damage to a person’s reputation;
(i)damage to a person’s business or financial position;
(j)any other damage to a person.
1317AE         Compensation and other remedies—orders that may be made
(1)For the purposes of subsections 1317AD(1), (2) and (2A), a court may make any of the following orders:
(a)an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;
(b)if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person’s position as an employee:
(i)an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person’s employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or
(ii)an order requiring the first person and the first person’s employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or
(iii)an order requiring the first person’s employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;
(c)an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;
(d)an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;
(e)if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person’s employment—an order that the second person be reinstated in that position or a position at a comparable level;
(f)if the court thinks it is appropriate—an order requiring the first person to pay exemplary damages to the second person, or any other person;
(g)any other order the court thinks appropriate.
(2)If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person’s employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.
(3)In deciding whether to make an order under paragraph (1)(b) in relation to the first person’s employer, the court may have regard to the following:
(a)whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;
(b)if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) (whether or not section 1317AI requires the employer to have such a policy)—the extent to which the employer gave effect to that policy;
(c)any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.
(4)If the court makes an order under subparagraph (1)(b)(ii), the first person and the first person’s employer are jointly and severally liable to pay the compensation concerned.
…
1317AH        Costs only if proceedings instituted vexatiously etc.
(1)This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section 1317AE in which a person (the claimant) is seeking an order under subsection 1317AE(1).
(2)The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.
(3)The claimant may be ordered to pay the costs only if:
(a)the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the claimant’s unreasonable act or omission caused the other party to incur the costs.
1317AI          Whistleblower policies
(1)       A public company must:
(a)have a policy that sets out the matters referred to in subsection (5); and
(b)make that policy available to officers and employees of the company.
…
(5)The matters that a policy must set out for the purposes of paragraph (1)(a), (2)(a) or (3)(a) are:
(a)information about the protections available to whistleblowers, including protections under this Part; and
(b)information about to whom disclosures that qualify for protection under this Part may be made, and how they may be made; and
(c)information about how the company will support whistleblowers and protect them from detriment; and
(d)information about how the company will investigate disclosures that qualify for protection under this Part; and
(e)information about how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection under this Part, or to whom such disclosures relate; and
(f)information about how the policy is to be made available to officers and employees of the company; and
(g)any matters prescribed by the regulations for the purposes of this paragraph.
Section 1317AAA provides that an individual is an eligible whistleblower in relation to a regulated entity if the individual is or has been an employee of the entity. Section 1317AAB provides, amongst other things, that a company is a ‘regulated entity’. Neometals is a ‘company’ within the meaning of s 9 of the Act. Section 1317AAC provides that an eligible recipient includes an officer, senior manager of the body corporate or a related body corporate and a person authorised by the body corporate to receive disclosures that may qualify for protection under Pt 9.4AAA.
While not directly relevant, s 1317AAE forms part of the context within which the relevant provisions are to be understood and interpreted. That section prohibits the disclosure of a whistleblower’s identity or information that is likely to lead to the identification of the whistleblower except to ASIC, to APRA, to the Australian Federal Police, to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the operation of Pt 9.4AAA, as prescribed in regulations, or with the consent of the whistleblower. A failure to comply with s 1317AAE is a criminal offence and a civil penalty provision: s 1311(1); s 1317E.
Purpose of whistleblower provisions
An evident purpose of Pt 9.4AAA, and the amendments made in 2019 in particular, is to encourage individuals to disclose criminal and other misconduct in the corporate and financial sectors and reduce the personal and financial risks to those individuals of making such disclosures. That purpose is consistent with the explanatory memorandum and second reading speech for the 2018 Bill which emphasise that whistleblowing is an important part of detection and prosecution of criminal and other misconduct in the corporate and financial sectors. The existence of strong statutory protections to encourage whistleblowing can improve compliance with the law and promote a more ethical culture: Explanatory Memorandum paras 1.2 – 1.9.
Elements of cause of action for compensation and other relief

Mr Reiche claims compensation and other relief under s 1317AE. The Court may make an order under s 1317AE if, relevantly, the elements of s 1317AD(1) are satisfied. The elements of s 1317AD(1) are that:
(a)Neometals engaged in conduct that caused detriment to Mr Reiche (detrimental conduct); and
(b)when Neometals engaged in that detrimental conduct, it believed or suspected that Mr Reiche made, may have made, proposes to make or could make a disclosure that qualifies for protection under Pt 9.4AAA; and
(c)that belief or suspicion was the reason or part of the reason for the detrimental conduct.
The effect of s 1317AD(2B) is that if Mr Reiche discharges his onus by adducing or pointing to evidence that suggests a reasonable possibility that Neometals engaged in detrimental conduct and no further evidence is adduced, then all elements of s 1317AD(1) are taken to have been satisfied. Therefore, if Mr Reiche discharges his onus, Neometals has the onus of disproving, on the balance of probabilities, all elements of the cause of action. Of course, if Neometals adduces evidence that tends to disprove all elements of s 1317AD(1) then Mr Reiche would have a practical, not legal, onus to adduce evidence tending to prove the elements or rebut Neometals’ evidence in order to ultimately succeed on his cause of action. See, also, Mount at [142] – [143] where similar observations were made in respect to the operation of s 1317AD(2B).
Disclosure that qualifies for protection
There is a difference between the parties regarding the extent to which it is necessary to demonstrate that a disclosure that qualifies for protection was made, and whether this forms an implicit element of the cause of action for an order under s 1317AE. Mr Reiche contends, in effect, that it is implicit that a person must have made a disclosure that qualifies for protection in order for s 1317AD to operate. That is, it is implicit that in order for a person to believe or suspect that a whistleblower made, may have made, proposed to make or could make a disclosure that qualifies for protection, it is necessary that the whistleblower has actually made a disclosure that qualified for protection. Neometals contends that it is not necessary that a person has made a qualifying disclosure, only that the person who engages in detrimental conduct believes or suspects one is made, may have been made, is proposed to be made or could be made.
Section 1317AA describes the circumstances in which a disclosure by an eligible whistleblower qualifies ‘for protection under this Part’. Section 1317AAD describes two further kinds of disclosure of information that qualify for protection under Pt 9.4AAA (public interest disclosure and emergency disclosure). Each of these qualifying disclosures requires that a qualifying whistleblower disclosure under s 1317AA has already been made. It is implicit in these provisions that what may broadly be described as affording ‘protection’ to a person who has disclosed information only applies to qualifying disclosures of information. The protective provisions are: s 1317AAE and s 1317AG (confidentiality of whistleblower identity); s 1317AB (non-actionability of qualifying disclosures); s 1317AC (victimisation prohibited); and ss 1317AD, 1317AE and 1317AH (compensation for detrimental conduct). However, that a person has made a disclosure that qualifies for protection under Pt 9.4AAA is only an express element of s 1317AAE, s 1317AB and s 1317AG. It is not an express element of s 1317AC and s 1317AD. That difference suggests that the omission in s 1317AC and s 1317AD is deliberate and that is an indication that a qualifying disclosure of information is not a precondition or element of the prohibition on victimisation in s 1317AC or for compensation for detrimental conduct in s 1317AD and s 1317AE.
The text of s 1317AD also contains indications that a qualifying disclosure of information is not a pre-condition to the operation of the protections afforded under ss 1317AD, 1317AE and 1317AH. Amongst other things, ss 1317AD(1)(b), 1317AD(2)(b) and 1317AD(3)(b) all refer to the person engaging in detrimental conduct believing or suspecting that a person ‘proposes to make or could make a disclosure that qualifies for protection’ under Pt 9.4AAA. Sections 1317AD(1)(a)(ii), 1317AD(2)(c)(ii) and 1317AD(2A)(a)(ii) refer to making threats to cause detriment to a person. Eligible whistleblowers may be discouraged from making qualifying disclosures by threats made before a disclosure has actually been made. Therefore, a requirement that a qualifying disclosure has been made as an element of a cause of action under s 1317AD would reduce the protection afforded by Pt 9.4AAA and undermine a purpose of that Part.
Neometals’ construction increases the scope of s 1317AD and s 1317AE (and s 1317AC). That construction is more consistent with the purpose of Pt 9.4AAA and is also more consistent with the text of s 1317AD and the other provisions of Pt 9.4AAA than the alternative construction Mr Reiche advances. In my view, that a qualifying disclosure has been made is not an element of the cause of action under s 1317AD and s 1317AE.
It follows that it is not necessary for Neometals to ‘disprove’ that Mr Reiche made a qualifying disclosure in order for it to demonstrate that Mr Reiche’s claim is not made out. But, that does not mean that the fact that a qualifying disclosure was made or that Mr Reiche could make a qualifying disclosure is not relevant to the forensic enquiry regarding whether a person who engaged in detrimental conduct believed or suspected that Mr Reiche made, may have made, proposed to make or could make a qualifying disclosure. Evidence that a whistleblower had information, which if disclosed, would qualify for protection could be relevant to that forensic question.
Detrimental conduct
Relevantly, an element of the cause of action under s 1317AD(1) is that a person (Neometals) engages in conduct that causes any detriment to another person (Mr Reiche). There are three parts to that element. First, a person engages in conduct. Second, there is detriment to another person. Third, the conduct of the first person caused the detriment of the second person.
The term ‘detriment’ as used in s 1317AD (and s 1317AC) is not defined in the Act. However, the natural and ordinary meaning of that word extends to any harm or damage. In Mount Katzmann J observed that in its ordinary meaning ‘detriment’ means a disadvantage: Mount at [148].
Consistently with the purpose of Pt 9.4AAA, s 1317ADA provides that ‘detriment includes (without limitation)’ a list of kinds of detriment that is expressed in very broad terms. In Mount Katzmann J observed that s 1317ADA was modelled on s 337BA(2) the Fair Work (Registered Organisations) Act 2009 (Cth) but is intentionally broader in that the definition in that Act does not include ‘damage to a person’s business or financial position’ or ‘any other damage to a person’: Mount at [147]. Having regard to the purpose of Pt 9.4AAA, the ordinary meaning of ‘detriment’ and the broad and non-exhaustive list of detriments in s 1317ADA, there is no warrant in the text, context or purpose of Pt 9.4AAA to confine the concept of detriment.
In terms of the conduct Mr Reiche alleges caused him detriment, it is not in issue that the decision to make his role redundant and to terminate his employment was detrimental conduct. Likewise, it is not contested that the decision to terminate his contract of employment with immediate effect also caused detriment to Mr Reiche. Although Neometals denies it engaged in conduct that was bullying or harassment, it accepts that such conduct, if proved, would be detrimental conduct. Last, Neometals disputes that the rejection of Mr Reiche’s TIL claim could constitute detrimental conduct because he had no legal entitlement to have his TIL claim approved.
Drawing on the general protection provisions of the Fair Work Act, Neometals submits that ‘injury of a person in his or her employment’ means a legally compensable injury. Further, that in determining whether a person has been injured in their employment the relevant question is whether the action impacted negatively upon one of the more immediate practical incidents of employment including remuneration, duties or hours of work. In support of that submission Neometals cites Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [4]; Community & Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; 99 IR 238; Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329 at [127]; Childs v Metropolitan Transport Trust (1981) IAS Current Review 946; Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58; 201 IR 441 at [29]; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 at [244]; Australasian Meat Industry Employees Union v. R.J. Gilbertson (Queensland) Pty Ltd [1988] FCA 754 at [15]-[17]; The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; 157 IR 470 at [32].
Again, drawing on judicial interpretation of the provisions of the Fair Work Act, Neometals submits that ‘alteration of an employee’s position or duties to his or her disadvantage’ has been construed as a broader category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. In support of that submission Neometals cites Patrick Stevedores Operations No 2 at [4] and Blair v Australian Motor Industries Ltd [1982] FCA 145; 61 FLR 283 at 290.
Neometals submits that its TIL document was not part of Mr Reiche’s contract of employment and, for that reason, he had no right or entitlement to approval of his TIL claim. Further, Neometals submits the policy was withdrawn before Mr Reiche made his TIL claim and, therefore, again, he had not right or entitlement to approval of his claim. Neometals submits that in these circumstances there can be no detriment for not receiving TIL and payment for those hours upon termination of his employment.
I do not accept Neometals’ submission that rejection of Mr Reiche’s TIL claim cannot comprise a detriment if he had no legal entitlement to have his TIL claim approved. Even if the TIL document was not part of his contract of employment or otherwise not binding on Neometals, rejection of a claim based on a non-binding policy is capable of characterisation as ‘detriment’ if rejection of the claim was for reasons unrelated to application of the policy in accordance with the usual practice of the company or merits of the claim. For example, an arbitrary, capricious, illogical, irrational or unreasonable reason for rejecting a claim may be described as a detriment because the policy was not applied to an employee in accordance with the terms of the policy and merits of the claim. That may amount to discrimination or other harm in the sense that the employee was deprived of the opportunity of a fair and reasonable assessment and decision on the claim.
Regarding Mr Reiche’s allegation that Neometals engaged in conduct that was bullying and harassment, relying on Hodkinson v Commonwealth [2011] FMCA 171; 207 IR 129 (at [176]-[178]), Neometals submits that discrimination between an employee and other employees of the employer requires an employer to deliberately treat an employee less favourably than its other employees and there must be a conscious decision to make a distinction between the employees. Neometals also made submissions about the meaning of harassment based on the definitions in s 28A of the Sex Discrimination Act 1984 (Cth) and s 35 of the Disability Discrimination Act 1992 (Cth). Likewise, Neometals made submissions about the meaning of bullying based on the meaning of that expression in s 789FD of the Fair Work Act. I do not consider any of these authorities useful for determining the meaning of detriment in s 1317AD. As already mentioned, the term is unconstrained by text, context or purpose and the list of detriments described in s 1317ADA is drawn in broad terms.
Mr Reiche alleges that he was subjected to bullying and harassment. It is for Mr Reiche to adduce or point to evidence that suggests a reasonable possibility that Neometals engaged in conduct that caused detriment to Mr Reiche. Conduct that causes ‘bullying’ may take the form of conduct that also causes ‘harassment’ or ‘intimidation’ or both within the ordinary meaning of each of those words. Harassment suggests continually or repeatedly troubling, annoying or attacking a person. Intimidation suggests inducing or inspiring fear or overawing to make timid or deter a person. Bullying suggests using a position of strength or power to overbear or browbeat a person in a weaker position. Thus, conduct that caused ‘bullying’ or ‘harassment’ of Mr Reiche may be conduct that caused ‘detriment’ to Mr Reiche within the ordinary meaning of that word.
Belief or suspicion of qualifying disclosure
Whether a person believes or suspects that another person has made, may have made, proposed to make or could make a disclosure qualifying for protection under Pt 9.4AAA is quintessentially a question of fact. No doubt it would be difficult to decide that a person did not have the belief or suspicion without direct evidence from the person to that effect. However, the mere fact that a person has given evidence that he or she did not have the belief or suspicion referred to in s 1317AD(1)(b) does not mean that the company has discharged the onus of proof it bears under s 1317AD(2B). It is necessary to have regard to all the circumstances and evidence to reach a conclusion about the person’s state of mind.
Disclosable matters
A disclosure of information by an eligible whistleblower to ASIC, APRA, or an eligible recipient qualifies for protection under s 1317AA(1)(c) or s 1317AA(2)(c) if s 1317AA(4) or s 1317AA(5) applies to the disclosure. Section 1317AA(4) applies ‘if the discloser had reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances in relation to the regulated entity or … a related body corporate of the regulated entity’.
In the context of an application to strike-out a statement of claim, Bowskill J considered the operation of s 1317AA(4) and s 1317AA(5) and the meaning of ‘reasonable grounds to suspect’ in Quinlan v ERM Power Ltd (No 1) [2021] QSC 35; 7 QR 377. After setting out the legislative history of Pt 9.4AAA and making reference to the extrinsic materials to which I have referred earlier in these reasons, her Honour expressed the view that the expression contains subjective and objective elements. The discloser must subjectively possess grounds to suspect the relevant things and those grounds must objectively be reasonable grounds for that suspicion: Quinlan (No 1) at [24]-[27].
In the context of s 1317AD(1)(b), the relevant inquiry is whether the person who engaged in detrimental conduct believed or suspected Mr Reiche subjectively possessed grounds for having a suspicion of the matters in s 1317AA(4) or s 1317AA(5) and, if so, whether those grounds objectively would be reasonable grounds for that suspicion. That inquiry is informed, in part, by the nature of the information subjectively possessed and the extent to which it obviously and readily concerns the matters described in s 1317AA(4) or s 1317AA(5). The outcome of the relevant inquiry is of relevance to determining the question of whether the person who engaged in detrimental conduct could have or was likely to have believed or suspected that Mr Reiche had made, may have made, proposed to make or could make a disclosure of information that would qualify for protection under Pt 9.4AAA.
The term ‘misconduct’ is defined in the Act non-exhaustively to include ‘fraud, negligence, default, breach of trust and breach of duty’: s 9. The term ‘improper state of affairs or circumstances’ is not defined in the Act. From the absence of an exhaustive or any definition, Katzmann J inferred that Parliament intended that the terms have their ordinary meaning. Citing Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; 252 ALR 619; 71 ATR 23 at [29] (French CJ), her Honour observed that the ordinary meaning of ‘improper’ includes ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’ and that the word ‘has a broad construct’: Mount at [129]. Her Honour added:
129[That construction] is consistent with the intention of the legislation as explained in the [Revised Explanatory Memorandum to the Treasury Laws Amendment (Enhancing Protections) Bill 2018]:
2.34The broad categories of disclosable conduct are also intended to include conduct that may not be in contravention of particular laws. For example misconduct, or an improper state of affairs or circumstances in relation to a regulated entity, may not involve unlawful conduct but may indicate a systemic issue that would assist the relevant regulator in performing its functions.
2.35Information that indicates a danger to the public or a danger to the financial system is also a disclosable matter. This is intended to cover a broad range of conduct that poses significant risk to public safety or the stability of, or confidence in, the financial system, whether or not it is in breach of any law.
I agree with her Honour’s observations and would add that the ordinary meaning of the terms is also informed by context and purpose in accordance with the principles of statutory interpretation to which I have referred earlier in these reasons.
Part of the context is that: s 1317AA(1)(a) and s 1317AA(2)(a) require that the discloser is an eligible whistleblower in relation to ‘a regulated entity’; s 1317AA(4) provides that the information be ‘in relation to … the regulated entity’; and s 1317AA(5) is also directed to information that indicates that ‘the regulated entity, or an officer or employee of the regulated entity’ has engaged in certain conduct. The term ‘regulated entity’ is defined in s 1317AAB to describe various kinds of entities that are, as the defined term suggests, ‘regulated’ under one or more of the Corporations Act 2001 (Cth), Banking Act 1959 (Cth), Insurance Act 1973 (Cth), Life Insurance Act 1995 (Cth) and Superannuation Industry (Supervision) Act 1993 (Cth). A disclosure of information may qualify for protection if made to ASIC, APRA or a prescribed Commonwealth authority. That is, disclosure to a regulator of a regulated entity: s 1317AA(1)(b). A disclosure of information may also qualify for protection if made to an eligible recipient in relation to the regulated entity: s1317AA(2)(b). An eligible recipient is a person who, broadly, holds a position that has responsibility for regulatory compliance in relation to a regulated entity: s 1317AAC.
Part of the context also includes the substance of s 1317AA(5) and s 1317AADA. While expressed to be without limiting s 1317AA(4), the information described in s 1317AA(5) concerns conduct constituting offences against or contraventions of laws of the Commonwealth or dangers to the public or financial system that engage the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to the regulated entity. Section 1317AADA excludes disclosure of information concerning a personal work-related grievance of the discloser, unless the information concerns victimisation in contravention of s 1317AC or an offence, contravention or danger described in s 1317AA(5). That is, in effect, information does not qualify for protection if it is information that would not engage or assist the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to the regulated entity.
These are all textual indications that intended subject of disclosable matters under s 1317AA(4) and s 1317AA(5) is information that is of relevance to the regulatory functions (compliance, enforcement and (or) discipline) of ASIC, APRA or another Commonwealth authority in relation to the regulated entity. However, to engage or assist these regulatory functions, the information need not indicate conduct that is an offence or contravention of a law of the Commonwealth or that represents a danger to the public or the financial system as described in s 1317AA(5) or the contravention of any other law. Consistently with the explanation in the Revised Explanatory Memorandum, disclosable matters may include conduct that does not involve a contravention of any particular law and systemic issues that may assist a regulator in the performance of its functions.

[69]   “…
(c) Modifying the classification of high-risk items in the risk register would have the effect of compromising the risk management process, undermine transparency, and also place me at risk of being blamed if those risks eventuated, even though they resulted from decisions that predated my employment.

Speculative and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception having regard to the consequences of the actions described which support the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

(d) … Such a direction was contrary to the Chief Executive Officer's and Chairman's duty in the face of such information, and also in breach of disclosure and government requirements of the ASX and Corporations Act 2001 (Cth). This could expose the Respondent to prosecution or civil liability.

Irrelevant, conclusory and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of an asserted fact, i.e. contrary to directors duties and breach of certain legal requirements.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception having regard to the nature of the direction given which supports the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[72] – [75] inclusive.

“72.     On 11 July 2024, I attended a follow-up meeting with Smith and Kelsall to discuss the next steps for an independent investigation into my whistleblower disclosure. At the beginning of the meeting, both Smith and Kelsall expressed concern for my well-being, acknowledging the stress that could arise from making a whistleblower disclosure. They assured me that the company would support me throughout the process, including providing medical assistance if necessary.

73.      During this meeting, Kelsall stated, "We take your disclosure seriously, and we believe it's authentic," and acknowledged the governance failures I had highlighted, including those around forgery and high-risk matters. Smith also raised concerns about whether the company's whistleblower policy provided sufficient protection, particularly in light of him saying that he fact that some of the issues I had raised were already known within the company. He referred back to our previous discussion on 9 July 2024 noting that he had shared these contractual and asymmetrical risks with the Board, which resulted in pushback from Cole. I strongly disagreed with the suggestion that prior awareness diminished the importance of the disclosure and emphasized that my aim was to ensure action would be taken on these long-standing risks. It was agreed that I would provide further documentation, including details about the forgery incident, and that an independent investigation would be launched. I prepared a contemporaneous file note of that meeting which sets out the effect of what was discussed in that meeting. A copy of that file note is at pages 616-617 of Exhibit CGR-1.

74.      Following the disclosure meetings on 9 July 2024 and 11 July 2024, I made several attempts to set up a follow-up meeting with Smith and Kelsall to discuss the progress of the investigation and next steps. However, I was unable to schedule a meeting due to their busy schedules and the explanations provided to me that upcoming board meetings, a Primobius visit, Risk Register updates, and an Audit were priorities.

75.      Kelsall, who had just started his role on 1 July 2024, was new to the company, but he shared with me on several occasions that he believed something "nuclear" was happening within the Respondent. He expressed belief in my disclosures and promised to get to the truth. Kelsall also explained that we couldn't change everything at once and asked me for patience, as well as support by providing information on what was ongoing and where the true risks lay.”
Wholly irrelevant to the issues in dispute Pressed.
Relevant to the knowledge of the Respondent that the Applicant had made the protected disclosures; the knowledge of the Respondent as to the effect of the disclosures,
The paragraphs are also relevant to the allegation by Ms Purdie that the Applicant was dismissed with immediate effect and not put on “gardening leave” when they were aware of the adverse effects visited upon the Applicant subsequent to making the disclosure, including stress; and the conduct of the Respondent seized with the knowledge demonstrated by the paragraphs both on the question of liability and damages, including exemplary damages. Evidence is admitted on the basis that it is a point for submission on relevance.

[76] “On July 16, 2024, there was an instance of interference in Primobius' recruitment process and my fiduciary responsibilities as Managing Director.” Conclusory, and ultimately an issue for the Court to determine.
Pressed.
Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted not as a submission but how the Applicant read it and understood it at the time he received it.

[76] “(c)… Purdie… ought to have been fully aware of the staffing needs and approved recruitment decisions. Her expression of surprise was disingenuous and contradicted her prior knowledge.”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.
Not pressed Paragraph struck out because the admissibility of them is not pressed.

[79] “… This lack of response was concerning, given Purdie's involvement in overseeing several project aspects at the Respondent.”
Conclusory and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[80] “…Purdie's review of the draft undermined the independence of the audit and indicated a potential conflict of interest.”
Conclusory, speculative and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[81] “… This raised concerns that Purdie had influenced the report before I had a chance to review it, further compromising the audit's independence.”
Speculative and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[83] “… This email summarized the key issues raised in the Health Check audit report. He expressed concern that no Basis and Design (Engineering) existed, and that the 30 model was being treated as the "sole source of truth." Smith also pointed out that Straughton was unaware of any verification processes for the 30 model and highlighted the lack of commentary on the project schedules provided to the auditor. …”
Conclusory summary of the email that is attached to Mr Reiche’s affidavit at pages 690-695 of Exhibit CGR-1.

This email speaks for itself.

Objection noted.
Pressed on basis that the Applicant’s perception and understanding as to the effect of the email informs the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Paragraph struck out because the grounds of objection are sound and the applicant’s explanations for admissibility are not accepted.

[84] “In these minutes, Cole summarized the Health Check audit report as having "no red flags" and stated that the findings should be viewed as recommendations rather than identifying any major issues.”
Conclusory summary of the email that is attached to Mr Reiche’s affidavit at pages 696-700 of Exhibit CGR-1.

This email thread and attachments speak for themselves.
Pressed.
Direct quote o statement by Cole;
If not, admissible on basis of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 noting differing view in Chen v Chu [2024] NSWSC 1139 (Hammerschlag CJ in Eq) at [262] – [269]: Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[84] “This interpretation was misleading and conflicted with the concerns raised by lvanova and Smith and also my internal Due Diligence Report.”
Conclusory and inadmissible opinion evidence to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[88] “I later realized that the finance team, knowing about the delegation change, forwarded the invoice to Purdie without informing me or allowing me to review it first. This led to concerns about the lack of clear communication in the approval process. Speculative and conclusory.
Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted not as a submission but how the Applicant read it and understood it at the time he received it.

[89] “…The absence of communication and transparency in this matter led to confusion and concerns about my role in the approval process.”
Irrelevant.

Speculative and conclusory.

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted not as a submission but how the Applicant read it and understood it at the time he received it.

[91] “… I took this additional request to provide the project deliveries again as a reason to terminate Prassas' contractor agreement earlier than agreed.” Speculative, conclusory, and inadmissible opinion evidence.
Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted not as a submission but how the Applicant read it and understood it at the time he received it.

[92] “In this email, I detailed the exclusion from leadership events, the reduction of my delegation of authority, difficult and tense interactions with Di Virgilio and requested to file them on my employment record, and the continued unreasonable work expectations from Purdie placed on me.”
Conclusory summary of the email that is attached to Mr Reiche’s affidavit at pages 797-801 of Exhibit CGR-1.

This email speaks for itself.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]
Noted, not pressed other than as evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[94] “…After the meeting, I replied to Smith and Kelsall expressing my concern about the lack of updates on the progress of the investigation since my whistleblower disclosure on July 9, 2024.” Irrelevant to the issues in dispute. Pressed. Directly relevant to the respondent’s failure to adhere to its own Whistleblower Policy when it was aware of, at the very least, the 9 July disclosure.
Relevant to the issue of liability and damages.
The commentary is not admitted as the grounds of objection are sound and the applicant’s explanations are not accepted. The documents will be received in evidence.

[94] “… Which was becoming obvious to other staff.”
Irrelevant, and speculative.

Inadmissible opinion evidence without any foundation.
Not pressed Paragraph struck out because the admissibility of them is not pressed.

[96] “…I also reiterated that the detrimental conduct I had experienced was likely tied to my April 2024 disclosure, especially after Purdie became Chief Operating Officer Smith advised me to clearly document each claim for the investigation to proceed efficiently.”
Irrelevant and conclusory to the extent this evidence is relied on to prove the existence or truth of these assertions.

[No objection where the purpose of this evidence is to identify the basis for Mr Reiche’s reasonably held belief or suspicion concerning the subject matter of the disclosure.]

Pressed. When read with the rest of the paragraph it and the Applicant’s perception as to the reasons for the detrimental conduct.
The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Evidence is admitted on the basis that the statement is not received as evidence of the truth of facts, but as evidence of the witness’s subjective state of mind.

[97]..”… I reiterated that everything necessary to begin the investigation had been provided, as disclosed in my whistleblower report. I formally requested that the investigation proceed in accordance with the protections and guidelines outlined in the company's whistleblower policy, and I offered to provide any additional details or clarification as needed during the course of the investigation.” Irrelevant
Pressed.
Relevant to the knowledge of the Respondent that the Applicant had made the protected disclosures; the knowledge of the Respondent as to the effect of the disclosures,

Evidence as to the Respondent’s failure to adhere to its own Whistle-blower Policy

The conduct of the Respondent seized with the knowledge demonstrated by the paragraph both on the question of liability and damages, including exemplary damages

The commentary is not admitted as the grounds of objection are sound and the applicant’s explanations are not accepted. The documents will be received in evidence.

[98] “…and requested confirmation that these investigations would proceed promptly. I haven't received any response.” Irrelevant
Pressed.
Relevant to the knowledge of the Respondent that the Applicant had made the protected disclosures; the knowledge of the Respondent as to the effect of the disclosures,

Evidence as to the Respondent’s failure to adhere to its own Whistle-blower Policy

The conduct of the Respondent seized with the knowledge demonstrated by the paragraph both on the question of liability and damages, including exemplary damages

The commentary is not admitted as the grounds of objection are sound and the applicant’s explanations are not accepted. The documents will be received in evidence.

[99] “…following up on my whistleblower disclosure and the framework for the investigation…. I reiterated the need for an investigation under the appropriate policies, including the Whistleblower Protection Policy, Discrimination, Harassment and Bullying Policy, and the Corporations Act 2001 (Cth). I also emphasized that my role was to report my concerns and that I was not required to conduct my own investigation. Given the detrimental impact on my health, I requested that the investigation proceed promptly.” Irrelevant
Pressed.
Relevant to the knowledge of the Respondent that the Applicant had made the protected disclosures; the knowledge of the Respondent as to the effect of the disclosures,

Evidence as to the Respondent’s failure to adhere to its own Whistle-blower Policy

The conduct of the Respondent seized with the knowledge demonstrated by the paragraph both on the question of liability and damages, including exemplary damages

The commentary is not admitted as the grounds of objection are sound and the applicant’s explanations are not accepted. The documents will be received in evidence.

[102] “…This differential treatment, especially considering my whistleblower status, indicates targeted, detrimental conduct designed to harm me financially and professionally. It also appears that the Respondent deliberately sought to terminate me immediately to avoid the additional protection I would have received during my notice period, particularly regarding my whistleblower protections.”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.

Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Pressed as the Applicant’s perception as to a matter by a person in a position to make the perception. The opinion is rationally based and directly probative of an asserted fact, and the Applicant’s state of mind when making the protected disclosures.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Paragraph struck out because the grounds of objection are sound and the applicant’s explanations for admissibility are not accepted.

[107] “Notwithstanding that I consider that the termination of my employment was in part at least motivated by the Respondent's knowledge that I had made protected whistleblower disclosures, and amounted to detrimental conduct that permits the Court to order that I be reinstated to my position, the decision to not permit me to work out my three month contractual notice period, but rather pay it out in lieu (as per the Employment Contract) was in itself detrimental action because it would permit me a further 3 months on top of the 60 day period to attempt to obtain a new sponsor and commensurate employment.”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.
Pressed. Contextual to the evidence as to the detriment caused by the failure to allow him to work out his notice period or go on gardening leave, Paragraph struck out because the grounds of objection are sound and the applicant’s explanations for admissibility are not accepted.

[110] “…in acting to my detriment after I made the protected disclosures…”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.
Not pressed Paragraph struck out because the admissibility of them is not pressed.

[113] “…one of the main protagonists who have engaged in or been involved in the decisions made by the Respondent which have caused me detriment, as…”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.
Not pressed Paragraph struck out because the admissibility of them is not pressed.

[114] “…are superior to those enjoyed by Purdie… cannot be in the best interests of the Respondent or its shareholders.”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.
Not pressed. Paragraph struck out because the admissibility of them is not pressed.

[115] “…so I believe that I was made redundant due to my whistleblower actions.”
Conclusory, speculative and inadmissible opinion evidence.

These are matters for submissions – for the Court to ultimately determine.

Evidence as to the Applicant’s state of mind and evidence identifying the basis for his reasonably held concerns which informs the reasons why he made the disclosures
Paragraph struck out because the grounds of objection are sound and the applicant’s explanations for admissibility are not accepted.

File number:	NSD 1273 of 2024
Judgment of:	FEUTRILL J
Date of judgment:	28 February 2025
Catchwords:	CORPORATIONS – claim for compensation and other relief under s 1317AD and s 1317AE of the Corporations Act 2001 (Cth) – consideration of whistleblower protections under Pt 9.4AAA of the Act – onus of disproving claim under s 1317AD(2B) of the Act – attribution of conduct and state of mind to company – detrimental conduct – redundancy and termination with immediate effect – rejection of claim for time-in-lieu – bullying and harassment – belief or suspicion of qualifying disclosure – reason or part of reason for detrimental conduct PRACTICE AND PROCEDURE – application for non-publication and non-disclosure of identity of non-parties
Legislation:	Acts Interpretation Act 1901 (Cth) ss 15AA. 15AB Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) Sch2; Pt 2 Corporations Act 2001 (Cth) ss 124(1), 127, 134, 1311(1), 198A, 1317(1)(a), 1317(1)(a)(ii), 1317(1)(b), 1317(1)(b)(ii), 1317(1)(c), 1317(3)(b)(ii), 1317(4), 1317AA, 1317AA(1)(c), 1317AA(2)(c), 1317AA(4), 1317AA(5), 1317AAA(a). 1317AAA(b), 1317AAB, 1317AAB(a), 1317AAC, 1317AAD , 1317AADA, 1317AAE, 1317AB, 1317AC, 1317AD, 1317AD(1), 1317AD(1)(a), 1317AD(1)(b), 1317AD(1)(c), 1317AD(2)(b), 1317AD(3)(b), 1317AD(2B), 1317ADA, 1317AE, 1317AE(1), 1317AG, 1317AH, 1317AI, 1317E; Ptt 2G.1, 5.4AAA, 9.4AAA Disability Discrimination Act 1992 (Cth) s 35 Fair Work Act 2009 (Cth) ss 346, 360, 361, 789F; Pt 3-1 Fair Work (Registered Organisations) Act 2009 (Cth) s 337BA(2) Federal Court of Australia Act 1976 (Cth) s 37AF, s 37AG Migration Act 1958 (Cth) Public Interest Disclosure Act 2013 (Cth) Sex Discrimination Act 1984 (Cth) s 28A Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) Migration Amendment (Work Related Visa Conditions) Regulations 2024 (Cth) Sch 1 Migration Regulations 1994 (Cth) Sch 8
Cases cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58; 201 IR 441 Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332 Australasian Meat Industry Employees Union v. R.J. Gilbertson (Queensland) Pty Ltd [1988] FCA 754 Blair v Australian Motor Industries Ltd [1982] FCA 145; 61 FLR 283 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Browne v Dunn (1894) 6 R 67 Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329 Community & Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; 99 IR 238 Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 Director General, Department of Education and Training v MT [2006] NSWCA 270; 67 NSWLR 237 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 Elliott v Kodak Australasia Pty Ltd [2001] FCAFC 1804; 129 IR 251 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Fitzgerald v Masters [1956] HCA 53; 95 CLR 420 General Motors Holden Pty Ltd v Bowling (1976)12 ALR 605 Hodkinson v Commonwealth [2011] FMCA 171; 207 IR 129 IW v City of Perth [1997] HCA 30; 191 CLR 1 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 McLennan v Taylor [1966] 2 NSWR 685; 85 WN(PT1) (NSW) 525 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; 252 ALR 619; 71 ATR 23 Pearce v WD Peacock & Co Ltd [1917] HCA 28; 23 CLR 199 Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 Quinlan v ERM Power Ltd [2021] QSC 35; 7 QR 377 Salomon v A Salomon & Co Ltd [1897] AC 22 Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332 Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; 157 IR 470 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	519
Date of hearing:	4-8 November 2024, 9-11 December 2024
Counsel for the Applicant:	Mr DP O’Dowd
Solicitor for the Applicant:	Gillis Delaney Lawyers
Counsel for the Respondent:	Mr N Ellery
Solicitor for the Respondent:	Herbert Smith Freehills

ORDER MADE BY:	FEUTRILL J
DATE OF ORDER:	28 FEBRUARY 2025