Reiche v Neometals Ltd (No 2)

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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…

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Details
Case
[2025] FCA 125
Decision Date

CaseChat Overview and Summary

In the case of Reiche v Neometals Ltd (No 2), the primary dispute revolves around claims made by Mr Reiche against Neometals Ltd, asserting compensation and other relief under sections 1317AD and 1317AE of the Corporations Act 2001. The case was heard in the Federal Court of Australia, which was tasked with addressing the whistleblower protections stipulated in Part 9.4AAA of the Act, specifically focusing on the onus of disproving a claim under section 1317AD(2B) and the attribution of conduct and state of mind to the company. Mr Reiche alleged that his termination from employment constituted detrimental conduct, which included bullying and harassment, and was linked to his role in making a qualifying disclosure. Neometals argued that the termination was due to redundancy and not related to any disclosure by Mr Reiche. Additionally, there was an application by the parties for non-publication and non-disclosure of the identity of non-parties.

The central legal issues before the court involved determining the onus of proof in whistleblower cases under the Corporations Act and the specific circumstances under which detrimental conduct could be attributed to the company. The court had to assess whether the termination of Mr Reiche's employment was indeed a form of detrimental conduct and whether it was connected to his alleged qualifying disclosure. Another significant issue was the burden of disproving the claim under section 1317AD(2B) of the Act and whether Neometals successfully discharged this burden. The court also needed to consider the implications of the rejection of Mr Reiche’s claim for time-in-lieu and the broader context of bullying and harassment within the workplace.

In its reasoning, the court examined the facts presented by both parties, including the affidavits filed by Mr Reiche and Neometals. The court found that while some allegations were expanded, others were treated as particulars of the allegations in Mr Reiche’s concise statement. The court determined that Neometals had discharged the onus of disproving Mr Reiche’s claim, as the evidence showed that the detrimental conduct, including Mr Reiche's termination, was not due to any qualifying disclosure but rather because of redundancy. The court also concluded that the belief or suspicion of a qualifying disclosure did not form part of the reason for the detrimental conduct. Consequently, the court dismissed Mr Reiche’s proceeding and ordered that the reasons for the dismissal not be published until a specified date, while reserving the question of costs to be determined later.

The final orders of the court included dismissing Mr Reiche’s proceeding, discharging certain previously made orders, and stipulating that the reasons for the dismissal not be published until 7 March 2025. The court also set a timeline for the parties to file and serve their proposed orders concerning the costs of the proceeding. The matter of publication and non-disclosure of the identities of non-parties was addressed in the orders, reflecting the court's consideration of privacy and confidentiality issues in the case.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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