Saridas v Papuan Oil Search Ltd (No 3)

[2022] NSWSC 1515

Supreme Court

New South Wales

Medium Neutral Citation:

Saridas v Papuan Oil Search Ltd (No 3) [2022] NSWSC 1515

Hearing dates:

27 October 2022

Date of orders:

7 November 2022

Decision date:

07 November 2022

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

1. Ms Saridas be given leave to proceed on the third further amended statement of claim.

2. Ms Saridas bear the costs of the motions dealt with in Saridas and Saridas (No 2), in respect of those issues on which Oil Search succeeded.

3. Oil Search bear the costs of the motions dealt with in Saridas and Saridas (No 2), in respect of those issues on which Ms Saridas succeeded.

Catchwords:

COSTS — Party/Party — Costs orders in interlocutory proceedings — general rule that costs follow the event — Uniform Civil Procedure Rules 2005 (NSW), r 42.1 — cost of motions on which defendant succeeded to be borne by plaintiff — costs of aspects of motions on which plaintiff succeeded to be borne by defendant

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — where plaintiff seeks leave to file third amended statement of claim — where defendant objects to some proposed amended pleadings — whether opposed pleadings are frivolous and vexatious — whether opposed pleadings do not disclose any reasonable cause of action — whether opposed pleadings are not available under Corporations Act 2001 (Cth), s 1317AD — whether opposed pleadings have a tendency to cause prejudice, embarrassment or delay under Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 — where proper construction of legislative scheme disputed — Corporations Act 2001 (Cth), Pt 9.4AAA — Protection for whistleblowers — leave granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 19, 56, 64, 98

Uniform Civil Procedure Rules 2005 (NSW), Pts 14, 15, rr 13.4, 14.7, 14.9, 14.14, 14.19, 14.28, 15.1, 15.5

Corporations Act 2001 (Cth), Pt 9.4AAA, ss 1317AA, 1317AAA, 1317AAB, 1317AAC, 1317AAE, 1317AC, 1317AD, 1317ADA, 1317AADA, 1317AE, 1317AH

Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018

Cases Cited:

Banque Commerciale SA (in liq) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11

Cody v Nelson (1947) 74 CLR 629; [1947] HCA 17

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485; [2015] NSWCA 237

Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024

Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346

Oshlak v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; [2009] HCA 16

Saridas v Papuan Oil Search Ltd [2022] NSWSC 825

Saridas v Papuan Oil Search Ltd (No 2) [2022] NSWSC 1032

Category:

Principal judgment

Parties:

Aynet Saridas (Plaintiff)
Papuan Oil Search Ltd (Defendant)

Representation:

Counsel:
Mr J Emmett SC (Plaintiff)
Ms V Bulut (Plaintiff)
Mr I Neil SC (Defendant)
Mr B Rauf (Defendant)

Solicitors:
Gillis Delaney Lawyers (Plaintiff)
Kingston Reid (Defendant)

File Number(s):

2021/324287

JUDGMENT

1. Ms Saridas was employed for some months as the Chief Financial Officer designate of Papuan Oil Search Ltd. Her employment came to an end after she wrote to the Chairman raising with him certain concerns, with the result that the parties later executed a deed of release. It provided for her resignation on an agreed date and regulated how the parties would conduct themselves in relation to certain matters, including after the termination of the employment.

2. In these proceedings Ms Saridas claimed not only that beforehand, Oil Search had breached her contract of employment and the whistleblower provisions of the Corporations Act2001 (Cth), Pt 9.4AAA, but that afterwards it also breached the deed, as well the whistleblower provisions. Ms Saridas pursued damages for breach of the employment contract, the deed and the whistleblower provisions.

3. By an amended April 2022 motion Oil Search sought to have aspects of Ms Saridas’ case dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). By her motion Ms Saridas sought leave to pursue a further amended statement of claim. That was formally opposed, but the parties directed their cases on the strike out application to the claims which she wished to advance by that pleading, which was then filed.

4. They also agreed that other problems Oil Search had raised with the proposed pleading would be the subject of further discussion between them, after judgment was given on Oil Search’s motion.

5. In June 2022 I concluded that aspects of Ms Saridas’ claims could not be pursued, being legally untenable, but that she was entitled to pursue some of her whistleblower claims, as well as Oil Search’s alleged breaches of the deed: Saridas v Papuan Oil Search Ltd [2022] NSWSC 825.

6. The parties later agreed on almost all of the orders to be made to reflect the conclusions I had reached and I resolved what then remained in issue as to other aspects of Ms Saridas’ further amended statement of claim: Saridas v Papuan Oil Search Ltd (No 2) [2022] NSWSC 1032. Orders were then made about the dismissal of specified claims; further amendment of the further amended statement of claim; filing and service of amended pleadings; determination of costs; and what remained in issue as to an outstanding notice to produce.

7. The parties further discussed their remaining differences, but could not resolve all of them. Although they agreed that the disputed notice to produce should be dealt with after the pleadings were finalised. Ms Saridas then filed a further motion, supported by an affidavit sworn by her solicitor Mr Gillis, seeking leave under s 64 of the Civil Procedure Act2005 (NSW) to file a second further amended statement of claim, which Oil Search opposed.

8. At the hearing Ms Saridas proposed a third further amended statement of claim, which had been amended to seek to address issues Oil Search had raised in its submissions about deficiencies in what had been pleaded in the second further amended statement of claim.

9. Oil Search still objected to some of the proposed amended pleading, directing its case to that third further amended statement of claim. Because the third further amended statement of claim had not been served before the hearing, Oil Search was also given the opportunity to make written submissions about what was so proposed and Ms Saridas the opportunity to respond.

Costs of the earlier motions

10. Oil Search sought an order that Ms Saridas pay its costs of the motions dealt with in Saridas and Saridas (No 2). She contended that these costs should all be costs in the cause.

11. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event, but the Court has power under s 98 of the Civil Procedure Act, to make a different order. That includes an order that costs be costs in the cause, or apportioning costs if a party has not succeeded on all issues. Separate costs orders can also be made if a party pursues an issue unreasonably: Oshlak v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [134]. Or where the successful party failed on the dominant issue.

12. Ms Saridas also relied on s 1317AH of the Corporations Act to submit that no costs order could be made against her in respect of her whistleblower claims. It provides that in a proceeding in relation to a matter arising under s 1317AE in which an order under s 1317AE(1) is sought, a claimant must not be ordered to pay another party’s costs to the proceedings, except in accordance with s 1317AE(3). It provides that such costs may be ordered 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.

13. Oil Search’s case was that part of Ms Saridas’ whistleblower claims had been pursued without reasonable cause, namely those which were the subject of the release which she had given by the deed.

14. The position is that as I explained in Saridas, while not entirely successful on the case it advanced, Oil Search was successful in establishing that significant aspects of Ms Saridas’ existing pleading had to be dismissed, being legally untenable, with the result that leave to proceed on aspects of her proposed further amended statement of claim could not be granted. They were the claims relating to damages for breach of her employment contract and the whistleblower provisions of the Corporations Act which occurred before the parties entered the deed, by which she agreed to release those claims.

15. I found that as was Oil Search’s case, it was unarguable, given its terms, that the release which Ms Saridas gave by the deed included the conduct sought to be pleaded in her further amended statement of claim which occurred before the deed was entered, including that which may have involved breaches of the statutory whistleblower provisions: Saridas at [133].

16. I am thus satisfied that Oil Search’s case that the whistleblower claims which were released by the deed had been pursued by Ms Saridas without reasonable cause, must be accepted. It follows that s 1317AH does not preclude a costs order being made against her in respect of those costs.

17. But I also concluded in Saridas that the deed did not release Ms Saridas' claims that Oil Search had further breached the whistleblower provisions, as well as the non-disparagement provisions of the deed, after the termination of her employment. Ms Saridas’ claims included that the later alleged breaches of the deed, which the parties intended would ensure that she did not suffer damage to her reputation after the termination of her employment, could also have involved breaches of the whistleblower provisions.

18. I concluded that Ms Saridas’ claim that they had not been released by the deed, was not untenable. Accordingly, Ms Saridas was entitled to pursue those claims: Saridas at [131]-[138].

19. In the result I am satisfied that the just exercise of the costs discretion in all these circumstances is an order that costs of those aspects of the motions on which Oil Search succeeded should be borne by Ms Saridas and the costs of those aspects on which she succeeded, should be borne by Oil Search.

Leave to file the third further amended statement of claim must be given

20. Consistent with the conclusions reached in Saridas and the orders made in Saridas (No 2), Oil Search had no objection to aspects of the proposed second and third further amended statements of claim, including in relation to the breaches of the whistleblower provisions claimed to have been pursued after the deed, by which Ms Saridas claims that the acts of Oil Search’s officers and employees caused her actual harm.

21. In the result leave to file those aspects of the third further amended statement of claim must be granted.

22. But Oil Search opposed leave being granted in relation to paragraphs 35(i), 35(c), 35(d), 35(j), 35(k) and 36A of the third further amended statement of claim. Leave to advance those claims will not be given if they would have been struck out, if originally pleaded. How such questions must be approached was discussed in Saridas.

23. Oil Search contended that these paragraphs were either frivolous and vexatious, did not disclose any reasonable cause of action, were not available under s 1317AD of the Corporations Act or had a tendency to cause prejudice, embarrassment or delay, relying on rr 13.4 and 14.28. In the cases of the amendments first advanced in the third further amended statement of claim, it submitted that they did not address the deficiencies which they had been intended to address, but compounded them.

24. I am satisfied that the disputed pleadings do not suffer from those difficulties. Nor are they futile, depending as they do in part on the proper construction of this complex legislative scheme, which is put in issue in circumstances where, apparently, to date it has not yet been judicially considered.

25. In the result I am satisfied that leave to file the third further amended statement of claim must be given, for the following reasons.

The applicable requirements of the Rules

26. Proceedings must be commenced and carried on in the manner prescribed by the Rules: s 19 of the Civil Procedure Act.

27. That requires a statement of claim to adhere to the applicable requirements of Pts 14 and 15 of the Rules. They include that pleadings contain only a summary of material facts on which the party relies, not the evidence by which they will be proven: r 14.7. That provides the basis upon which evidence may be ruled admissible or inadmissible at trial on the ground of relevance, the issues being defined by the pleadings: Banque Commerciale SA (in liq) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11 at 286, 296, 302-3 and Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664.

28. The effect of material documents or spoken words must also be stated: r 14.9; any matter that if not specifically pleaded, may take the defendant by surprise must be pleaded: r 14.14; and pleadings may raise points of law: r 14.19.

29. Necessary particulars must also be given in a statement of claim, so as to enable the defendant to identify the case that has to be met: r 15.1. Particulars define the scope of the evidence, so as to help prevent surprise, rather than supplementing or expanding on issues. It generally only being evidence that could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings which is admissible: Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 at [2].

30. Consistently with the requirements of s 56 of the Civil Procedure Act, which specifies the overriding purpose of the legislative scheme to be the just, quick and cheap resolution of the real issues in the proceedings, these requirements of the Rules are intended to ensure that material facts and particulars are adequately disclosed in a statement of claim. That is in order to give the opposing party the opportunity to appreciate their materiality to the cause of action being pursued: Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44.

31. That does not exclude allegations of legal categories, or the requirement to present a statement of material facts, which is presented so as to amount to a statement of the cause of action: at [20]-[22].

32. What is so required is proper and timely disclosure of the issues being pursued: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346. But particulars do not need to disclose the mode in which the pleaded case is to be proven. Rather they must give the opposing party a fair chance to meet the case to be advanced: Dare v Pulham at [664].

33. Further, the obligation is only to provide the best particulars that the party can. In the case of damages, they must fairly inform the defendant of the nature and extent of the damage claimed. Consistently with r 15.5, which requires in the case of claims in tort that when claims of breach of statutory duty are pursued, particulars of the facts and circumstances relied on as constituting the alleged breach of the duty in issue, should thus also be given.

34. This is relevant in this case, given the nature of the statutory scheme, which not only provides protections for whistleblowers, but in the event that orders for damages for breach of the obligations imposed are pursued, reverses the evidentiary onus in respect of matters which must be proven, in order to empower the Court to make the claimed orders.

35. That reflects that the matters the subject of the reversed onus are ones peculiarly within the knowledge of the defendant.

The scheme of the whistleblower provisions of the Corporations Act.

36. Companies such as Oil Search are regulated entities for the purpose of Pt 9.4AAA of the legislative scheme: s 1317AAB. Officers and senior managers of such companies are eligible recipients to whom protected disclosures may be made: s 1317AAC. Eligible whistleblowers are defined to include employees of regulated entities such as Ms Saridas: s 1317AAA.

37. Protected disclosures are defined in s 1317AA and disclosures which are not protected are specified in s 1317AADA. They include personal workplace grievances. Ms Saridas claims that her disclosures were not such grievances but protected.

38. Section 1317AAE deals with the confidentiality of whistleblower disclosures, making it an offence to disclose the whistleblower’s identity or information likely to lead to their identification. Section 1317AC makes it an offence to threaten or cause detriment to a person believed or suspected to have made or is proposing to make a protected disclosure.

39. The circumstances in which a Court may order compensation or other remedies on application of a whistleblower in respect of a protected disclosure are specified in s 1317AD, which relevantly provides:

Compensation 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.

…

(2A) A court may make an order under section 1317AE in relation to a person (the first person) that is a body corporate if:

(a) another person (the third person) engages in conduct (detrimental conduct) that:

(i) causes any detriment to a person (the second person) other than the first person or the third person; or

(ii) constitutes the making of a threat to cause any such detriment to a person (the second person) other than the first person or the third person; and

(b) when the third person engages in the detrimental conduct, the third 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; and

(d) the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and

(e) the first person fails in part or whole to fulfil that duty.

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.

…

40. The cases which the parties advanced show that the proper construction of these provisions will be in issue.

41. But it is the matters dealt with in s 1317AE(1)(b) and (c) which will fall to Oil Search to prove, if Ms Saridas establishes on the evidence which she leads, the matters specified in s 1317AE(1)(a). Namely, that Oil Search engaged in conduct which caused her detriment or constituted a threat to cause her detriment at a time when it believed that she had made, proposed to make or could make a disclosure that qualified for protection.

40. Ms Saridas’ letter to the Chairman, which resulted in the parties’ entry of the deed, is part of her pleaded case. But whether the pleadings adequately disclose the conduct of officers and employees on which she relies and impermissibly raises the conduct of third parties on which she is not entitled to rely, are in issue.

41. It will be for Ms Saridas to prove that the conduct of Oil Search’s officers and employees relied on involved “detrimental conduct”. She contends that must be understood as including the natural and probable consequences of the conduct pursued, including as the result of the “grapevine effect” discussed in Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485; [2015] NSWCA 237 at [33].

42. The term “detrimental conduct” is not defined. But “detriment” is, in the widest of terms. Section 1317ADA provides that:

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.

45. “Reputation” is also not defined and so carries its ordinary meaning: Cody v Nelson (1947) 74 CLR 629; [1947] HCA 17. Reputation was discussed, there in the context of defamation law, in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 40; [2009] HCA 16 at [2]-[3]:

“2. Spencer Bower recognised the breadth of the term "reputation" as it applies to natural persons and gave as its meaning:

"[T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit ...".

3. A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.”

46. It follows that reputation is not only the result of what a person says or does, but also of what others do or say about that person, while damage to a person’s reputation can also result from the person’s own actions, as well as from the actions of others. Necessarily, under this statutory scheme it will be for Ms Saridas to prove by evidence her claims about her reputation and the harm done to it.

47. Discussed in Radio 2UE Sydney Pty Ltd v Chesterton was also the various remedies which the law provides for injury to a person’s reputation, including their business reputation. In the case of whistleblowers, since the enactment in 2018 of Pt 9.4AAA of the Corporations Act, that include claims for damages brought under that Part.

48. That is the result of s 1317AE now providing that the orders which may be made in favour of a whistleblower who has suffered harm as the result of detrimental conduct, includes harm to reputation. Those remedies include compensation, injunctive relief, requiring an apology and exemplary damages.

49. In issue is thus whether evidence of the pleaded conduct of third parties who are not officers or employees of Oil Search will be relevant or admissible, as well as the impact which the reversal of the evidentiary onus which flows from s 1317AD(2B)(b) has for the parties’ pleading obligations.

50. That the disputed term “detrimental conduct” necessarily means that for which Oil Search contends, I am satisfied, may not be accepted. That depends on the proper construction of the legislative scheme, which does not at this stage arise for determination.

51. But relevant to this will be what was said in the revised explanatory memorandum to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 by which Pt 9.4AAA was introduced into the Corporations Act:

“2.127 This reversal of the onus of proof recognises the well documented propensity of organisations that are the subject of a disclosure of wrongdoing to accuse and victimise the whistleblower, citing reasons other than the disclosure for their actions. It also recognises the actual knowledge of the reasons for, and conduct of, any detrimental conduct will lie exclusively with the defendant in these cases.

2.128 The amendments mean an entity that engages in such conduct, rather than the victim, will bear the onus of proving that the disclosure was not in any part a reason for their conduct.”

The disputed pleadings

52. Ms Saridas pleads in the further amended statement of claim that:

1. she was an eligible whistleblower;

2. specified persons held various positions as officers and senior employees of Oil Search;

3. between September and November 2020 she disclosed specified information to identified persons, to which s 1317AA applied, including by letter of 12 November 2020 sent to the Chairman of the Board, Mr Lee;

4. these disclosures were protected, not being limited to personal grievances between her and Oil Search as her employer;

5. she was, as a result, entitled to the whistleblower protections of the legislative scheme;

6. after the deed was entered, contrary to its terms, identified false information about the circumstances in which her employment with Oil Search came to an end was disseminated by officers and employees of Oil Search, with resulting harm which empowered the Court to make orders in her favour under s 1317AD(1);

7. she relies on s 1317AD(2B) and the burdens which it imposes on Oil Search, given the reasonable possibility that dissemination of this information has harmed her, that having been caused by conduct attributable to Oil Search;

8. further, that when she was so harmed by that conduct, Oil Search believed or suspected that she had made a protected disclosure to which Pt 9.4AAA of the Corporations Act applied and that was the reason, or part of the reason, for the detrimental conduct being pursued as it was by Oil Search; and

9. she seeks damages under s 1317AE for the harm and injury she has suffered, including psychological harm, harm to her reputation, her ability to obtain employment commensurate with her skill, expertise and experience, the economic loss she has suffered as a result, as well as exemplary damages.

53. To understand what is in issue, it is necessary to appreciate what Ms Saridas pleads about the actual detriment she has suffered and what she pleads at 35–37, objection being taken only to 35(i),35(c), 35(d), 35(j), 35(k) and 36A. The struck-out parts are not quoted:

“35. After the Deed of Release was entered into … the defendant, through its officers and employees, engaged in conduct that caused actual detriment to the plaintiff …

Particulars of conduct

(a) On or about 19 July 2021 when asked by Saul Kavanich, a credit analyst whether the behavioural issues by the Wulff had anything to do with the departure of the plaintiff in 2020 … the Chairman, Mr Lee responded in the negative. This statement was untrue, as the conduct of Wulff was central to the plaintiff’s departure.

(b) …

(c) In January 2021, the plaintiff was made aware by Craig … Brown, a credit analyst, that Ann Diamant, VP Investor Relations of Oil Search (“Diamant”) … had made statements to the effect that the employment of the plaintiff was terminated due to poor performance. The analyst also informed the plaintiff that this was widely discussed in the investment market as the explanation for the sudden departure of the plaintiff. These representations were untrue. The plaintiff does not presently know whether the statements made by Diamant were made whilst Diamant was still employed by the defendant. If they were, the plaintiff relies on this particular. If they were not, then the plaintiff relies on the particular at (i)(ii).

(d) In February 2021, the plaintiff was informed by a Macquarie Bank credit analyst that xx Diamant told an investor that the plaintiff had been “sacked” by POSR because of incompetence, and that they had made a mistake in hiring the plaintiff. This statement was false. The plaintiff does not presently know whether the statements made by Diamant were made whilst Diamant was still employed by the defendant. If they were, the plaintiff relies on this particular. If they were not, then the plaintiff relies on the particular at (i)(iii).

(e) …

(f) …

(g) …

(h) At some time prior to July 2021, the Chairman of the POSR Audit Committee - Fiona Harris, advised Samantha Tough, a director of VHM Limited that the employment of the plaintiff was terminated due to poor behaviours. This statement was false.

(i) This false information pertaining to the circumstances in which the plaintiff ceased employment with POSR was further disseminated into the marketplace as the natural and probable consequence of the statements made by officers and employees of the defendant as pleaded … above.

Particulars

(i) Statements made by Diamant between January 2021 and July 2021 to market analysts and investors to the effect that the plaintiff was employed under a “probationary” period and that she was “let go” because her performance in the role was inadequate.

(ii) In January 2021, the plaintiff was made aware by Craig Brown, a credit analyst that Diamant had made statements to the effect that the employment of the plaintiff was terminated due to poor performance. The analyst also informed the plaintiff that this was widely discussed in the investment market as the explanation for the sudden departure of the plaintiff. These representations were untrue.

(iii) In February 2021, the plaintiff was informed by a Macquarie Bank credit analyst that Diamant told an investor that the plaintiff had been “sacked” by POSR because of incompetence, and that they had made a mistake in hiring the plaintiff. This statement was false.

(iv) In July 2021, the plaintiff was informed by Sue Thomas, a director of Nuix Limited, an ASX listed company that they had received feedback from the credit analyst at Macquarie Bank that the plaintiff was dismissed from the role of CFO because of incompetence. This representation was false.

(v) In or about June or July 2021, Diamant, made a statement to an advisor at Diamant’s new employer and described the appointment of the plaintiff as the “disastrous appointment of the CFO who had to go”. This statement was egregiously false.

(vi) At some time prior to July 2021, Diamant told Joe Aston a journalist at the Australian Financial Review that the plaintiff’s employment was terminated because of incompetence. This statement was egregiously false.

(vii) These are the further disseminations that the plaintiff is presently aware of. The nature of the defendant’s detrimental conduct is such that there is likely to be other dissemination of which the plaintiff is unaware. The plaintiff reserves her position on providing further particulars if she becomes aware of further dissemination.

(j) The plaintiff relies on s 1317AD(2B)(a)(i) and says that it is enough for her to adduce or point to evidence that suggests a reasonable possibility of the matters alleged in this paragraph. For the avoidance of doubt, the plaintiff does not allege that the further dissemination of misinformation alleged in subparagraph (i), insofar as it was made by persons not employed by the defendant, is conduct attributable to the defendant. However, the plaintiff contends there is a reasonable possibility that the further dissemination was caused by conduct attributable to the defendant, such conduct being the communication of misinformation about the plaintiff’s employment or the circumstances in which it came to an end.

(k) Further, where the alleged conduct was by an employee or officer of the Defendant who may or may not have known about the plaintiff’s protected disclosure, there is a reasonable possibility that:

(i) the Chairman or another person with knowledge of the plaintiff’s protected disclosure led them falsely to believe that the plaintiff was let go or sacked because of her performance or competence; and

(ii) the Chairman or another person referred to in subparagraph (i) above was motivated in the manner alleged in paragraph 36A below.

Particulars of detriment

(l) Harm or injury, including psychological harm to the plaintiff; and

(m) Harm to the plaintiff’s reputation, including by the further dissemination described in subparagraph (i) above; and

(n) Harm to the plaintiff’s ability to obtain business employment commensurate with her skill, expertise and experience.

36. The defendant’s conduct described in paragraph … 35 above was “detrimental conduct” within the meaning of section 1317AD of the Act.

36A. The defendant, when it engaged in conduct which caused detriment to the plaintiff as alleged in paragraph 35 above, believed or suspected that the plaintiff had made a disclosure that qualified for protection under Part 9.4AAA of the Act.

Particulars

(a) …The plaintiff relies on s 1317AD(2B) and says that if the plaintiff adduces or points to evidence that satisfies s 1317AD(2B)(a), the defendant bears the onus of proving the matters in respect of which s 1317AD(2B)(b) of the Act places the onus on “the other person” as referred to in that subsection.

(b) The plaintiff contends she does not need to provide further particulars in respect of any matter in respect of which the defendant bears the onus but for the avoidance of doubt says further:

(i) The recipients of the disclosures alleged in paragraphs 29A and 30 above knew that the plaintiff had made such a disclosure.

(ii) The plaintiff does not know whether other persons knew that the plaintiff had made such a disclosure but relies on particulars (j) and (k) to paragraph 35 above.

36B.   The belief or suspicion alleged in paragraph 36A above was the reason, or part of the reason, for the detrimental conduct engaged in by the defendant as alleged in paragraph 35 above.

Particulars

(a) The plaintiff relies on s 1317AD(2B) and says that if the plaintiff adduces or points to evidence that satisfies s 1317AD(2B)(a), the defendant bears the onus of proving the matters in respect of which s 1317AD(2B)(b) of the Act places the onus on “the other person” as referred to in that subsection.

(b) The plaintiff contends she does not need to provide further particulars in respect of any matter in respect of which the defendant bears the onus but for the avoidance of doubt says further:

(i) The detrimental conduct involved communicating misinformation about the plaintiff which had a tendency to discredit her.

(ii) The defendant had an interest in discrediting the plaintiff because she had made qualifying disclosures about the plaintiff.

(iii) It may be inferred that each person whose detrimental conduct is attributable to the defendant, who believed or suspected the plaintiff had made a qualifying disclosure, was motivated in part by the belief or suspicion that the plaintiff had made a qualifying disclosure.

Orders sought under s 1317AE

37. In the premises, the plaintiff has suffered detriment within the meaning of section 1317ADA of the Act for which she claims damages pursuant to sections 1317AD and 1317AE from POSR, including:

(1) Damages for harm or injury, including psychological harm; and

(2) Damages for harm to her reputation; and

(3) Damages for her ability to obtain business employment commensurate with her skill, expertise and experience; and

(4) Damages for economic loss representing her loss of opportunities in her professional field, including lost wages and associated benefits which accompany such roles, including the ability to participate in share incentive schemes and to obtain incentive bonuses; and

(5) …

(6) Exemplary damages; and

(7) Costs.”

The parties’ cases

54. Oil Search’s case is that what is so claimed in 35(i), 35(c), 35(d), 35(j), 35(k) and 36A is inadequately pleaded and further, that s 1317AD(2B), which imposes an onus on Oil Search and to which Ms Saridas refers, has no work to do in a pleading such as this. But that it is for Ms Saridas to plead the material facts on which she says what is specified in s 1317AD(1)(b) and (c) will be established.

55. Further, that the pleaded case impermissibly relied on alleged conduct of persons who were not officers or employees of Oil Search, including Ms Diamant, when they further disseminated statements made about Ms Saridas. That has to be understood in circumstances where it appears that Ms Diamant left her employment with Oil Search in December 2020.

56. Oil Search submits that the disputed particulars thus disclose no reasonable cause of action and have a tendency to cause prejudice, embarrassment or delay, as well as impermissibly seeking to elide the conduct of its officers and employees with the conduct of others. Thereby the particulars seek impermissibly to bring their conduct within s 1317AD(1) and attribution of it to Oil Search.

57. Under the statutory scheme such reliance on the conduct of third parties depends on s 1317AD(2A), which contains additional requirements. But it is not relied on by Ms Saridas, that making her reliance on the conduct of third parties impermissible. Reliance of the grapevine effect in a case bought under s 1317AD is thus also misconceived.

58. Further, that the new pleadings advanced in the third amended statement of claim do not cure the deficiencies about which Oil Search made complaint, because they still do not adequately plead the causal element in s 1317AD(1)(a)(i) and rather compound the deficiencies of the pleadings. That is because what was meant by use of the term “conduct attributable to the defendant” is not apparent, no material facts or particulars having been given as to who engaged in that conduct, including who was involved in the alleged “miscommunication of information”.

59. Ms Saridas’ case is that what she seeks to advance by the third further amended statement of claim is a complaint that the pleaded conduct to which objection was not taken, not only resulted in Oil Search breaching the terms of the deed, but also the protections to which she was entitled under the whistleblower provisions. She seeks to establish this and the resulting harm to her reputation and economic harm, by what was submitted to have been the result of the grapevine effect of the particularised conduct of officers and employees of Oil Search.

60. It was her particularisation of the ways in which she was so harmed, to which objection was taken. But Ms Saridas contended that her so pleaded case complied with the requirements of the Rules, having adequately disclosed the case she seeks to advance against Oil Search, in circumstances where she is not privy to the actions it took against her.

61. Under the statutory scheme she is entitled to plead, as she has, what can be inferred from what is known to her about Oil Search’s conduct and its results. On her approach, the grapevine effect of conduct which has an adverse effect on a person’s reputation has long been recognised in defamation law and is also relevant to the protections established by the whistleblower provisions.

62. Further, it is not for her to plead matters which do not fall upon her to establish under the statutory scheme, by the evidence that she will lead at trial. Thus, given that the onus falls on her to establish the matters specified in s 1317AD(1)(a), what she has pleaded and particularised, properly discloses to Oil Search the facts on which she will rely to meet the onus there imposed upon her. The facts on which it may rely to meet the onus which falls upon it to establish the matters dealt with in s 1317AD(1)(b) and (c), in respect of which Oil Search has the onus, are matters uniquely within its knowledge and not for her to plead.

Oil Search’s complaint that the third further amended statement of claim has not been adequately pleaded may not be accepted

63. There is no doubt, like most pleadings, Ms Saridas’ case could be better pleaded. For example the terms “false information” and “misinformation” seem to be used interchangeably in the pleading of the alleged conduct by Oil Search. But perfection is not required in pleadings. Only fair disclosure, in accordance with the requirements of the Rules, of the case being pursued and the material facts advanced, so that the defence knows what it has to meet, with the objectives specified in s 56 of the Civil Procedure Act borne in mind.

64. That must enable the legal issues which will arise and be pursued by evidence going to the material facts to be identified. In a case such as this, that includes the claims advanced under a statutory scheme which imposes an onus on Oil Search in respect of matters specified in s 1317AD(1)(b) and (c), which are peculiarly within its knowledge.

65. As the parties accepted, as a corporation, Oil Search must act through its officers and employees. Ms Saridas has pleaded such conduct as well as that of third parties. While she does not allege that Oil Search is responsible for the pleaded conduct, which may also have harmed her reputation, she does contend that such resulting harm was the obvious consequence of the pleaded conduct of Oil Search’s officers and employees for which it was responsible, because they caused that harm by their pleaded conduct.

66. Oil Search contended that the conduct of third parties would only be relevant if s 1317AD(2A) was relied on. It provides:

(2A) A court may make an order under section 1317AE in relation to a person (the first person) that is a body corporate if:

(a) another person (the third person) engages in conduct (detrimental conduct) that:

(i) causes any detriment to a person (the second person) other than the first person or the third person; or

(ii) constitutes the making of a threat to cause any such detriment to a person (the second person) other than the first person or the third person; and

(b) when the third person engages in the detrimental conduct, the third 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; and

(d) the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and

(e) the first person fails in part or whole to fulfil that duty.

67. But under s 1317AD(1)(a) the onus falls on Ms Saridas to prove not only that Oil Search engaged in the alleged detrimental conduct pursued by its officers and employees, but also that she has suffered the claimed resulting detriments and further, that Oil Search caused them.

68. I am thus not satisfied that Ms Saridas not advancing a case under s 1317AD(2A), makes her pleaded case in relation to the alleged conduct of third parties, which evidences the detriments and harm she claims Oil Search caused her, unavailable. Or that at trial evidence of such conduct will be inadmissible.

69. To the contrary, evidence of what third parties did and said about Ms Saridas, if the claimed detrimental conduct of Oil Search’s officers and employees is established, appears to be relevant to what else falls to her to establish under s 1317AD(1)(a).

70. That includes both what her business reputation was before and after Oil Search’s detrimental conduct. While Ms Saridas may herself be able to give evidence about her reputation and the resulting harm which she claims to have suffered, others may also be able to give evidence about those matters, as well as about the causal connection between any harm to her reputation and that detrimental conduct.

71. Further, given that her claim is not only for compensation for the harm done to her reputation as the result of that detrimental conduct, but also for resulting economic harm, as well as psychological injury, it is difficult to see that the evidence of what third parties did after Oil Search’s detrimental conduct, could not help establish that she suffered such harm.

72. The detrimental conduct alleged, in short, was that after entering into the deed, contrary to its terms, Oil Search’s officers and employees conveyed untrue information to others, including that Ms Saridas’ employment had come to an end because of poor performance and incompetence and that she had been dismissed. When in fact it came to an end as the result of the steps which she had pursued in relation to her claimed protected disclosures and her resignation from her employment on an agreed date, in accordance with the terms of the deed by which Oil Search was bound not to disparage her.

73. If the claimed detrimental conduct of its officers and employees is denied by Oil Search, the onus will fall on Ms Saridas to prove it. That will necessarily have to be met by calling evidence from others.

74. On the pleaded case it thus appears that Ms Diamant, who it is alleged conveyed to others some of the untrue information about which Ms Saridas complains, possibly both while she was employed by Oil Search and after her employment came to an end, could give such evidence. So could others who have relevant knowledge of her business reputation and what caused it to change, if it did. Some of them appear to be other third parties identified in the pleadings.

75. Logically, receipt of their evidence does not depend on Oil Search having any connection to or control of such third parties, let alone any right or obligation to control them.

76. It is after all quite conceivable, for example, that a company which has obligations under the whistleblower provisions, could deliberately set out to cause harm to a whistleblower. That intention being given effect by an officer or employee conveying to third parties over whom it has no right or power to control, untrue and damaging information about the whistleblower. Not only in the expectation or hope that this would immediately damage the whistleblower’s reputation, but also that the untrue information will then be spread. Resulting further harm thereby caused would also then seem to have been the intended result of the company’s deliberate actions.

77. It appears to me that while the company may not be responsible for the harm caused by the conduct of such third parties if they do spread such false information, evidence of its pursuit of such a course through its officers and employees could not only establish an offence under the statutory scheme. It could also help a plaintiff meet the onus of establishing that harm to the whistleblower’s reputation was suffered and was caused by the detrimental conduct which the company so pursued.

78. In the result I am not satisfied that s 1317AD must necessarily be construed in the way for which Oil Search contended; that the disputed pleadings suffer from the problems about which complaint is made; or that evidence as to the so pleaded facts will be irrelevant to the issues lying between the parties.

79. To the contrary, I am satisfied that the third further amended statement of claim satisfies the requirements of the Rules, by adequately putting Oil Search on notice of the basis of the claim Ms Saridas seeks to advance against it under the whistleblower provisions, by the pleaded facts and particulars given and the construction of the legislative scheme which she advances.

80. Subsection 1317AD(2) has the result that if Ms Saridas meets the onus of establishing the matters specified in s 1317AD(1)(a) in relation the detrimental conduct she has pleaded and the harm she claims it caused her, then Oil Search has the onus in relation to the matters specified in s 1317AD(1)(b) and (c).

81. That is, that when its employees and officers engaged in that detrimental conduct, it did not believe or suspect that Ms Saridas had made, may have made, proposed to make or could make a disclosure that qualified for the statutory protection and that this belief or suspicion was not the reason, or part of the reason, for that detrimental conduct.

82. Despite the issues lying between the parties as to the proper construction of the legislative scheme, there is no issue that these are matters in relation to which Oil Search bears the onus. Accordingly, by its defence it will have to explain the material facts on which it will rely, to meet that onus.

83. This reflects that the statutory scheme has been so structured, because the matters with which s 1317AD(1)(b) and (c) are concerned are peculiarly within a defendant’s knowledge and not ones about which a whistleblower who has been caused harmed by detrimental conduct which the defendant has pursued, will necessarily be in possession of.

84. In the result, I am not persuaded that it is for Ms Saridas to plead factual matters which it will be for Oil Search to prove in relation to the matters dealt with in s 1317AD(1)(b) and (c).

85. If the pleaded facts on which Ms Saridas has disclosed she will advance are not proven by the evidence called at trial, or they are found not to be capable of establishing the case Ms Saridas has to prove under s 1317AD(1)(a), properly construed, her case will fail and Oil Search will not have to prove what s 1317AD(1)(b) and (c) require it to establish. But that does not make her pleaded case inadequate.

86. To the contrary, I consider that Ms Saridas has adequately pleaded her claims. She has also disclosed that while s 1317AD(2B) imposes an onus on Oil Search as to particular matters, she will contend that the detrimental conduct she has pleaded involved communicating misinformation about her which had a tendency to discredit her; that Oil Search had an interest in discrediting her because she had made qualifying disclosures about it; and that it may be inferred that each person whose detrimental conduct is attributable to it, it believing or suspecting that she had made protected disclosures, was motivated in part by the belief or suspicion that she had made such a disclosure.

87. Thereby how the case which Oil Search will have to advance will be met has already been disclosed. That casts light on how Ms Saridas will seek to deal with those issues, which flow from the onus imposed on Oil Search under the statutory scheme.

88. I consider that r 14.19 permits such pleadings and that their provision accord with the requirements of s 56 of the Civil Procedure Act.

Further Costs

89. The usual order as to costs being that costs follow the event, the resulting costs order in relation to the further pleading issues here dealt with is an order that Oil Search must bear Ms Saridas’ costs, as agreed or assessed.

90. Unless the parties’ approach to be heard within seven days, that will be the Court’s order.

Orders and directions

91. These conclusions now leave outstanding only the notice to produce and the further directions necessary to be given for further preparation of the matter for hearing, which the parties need to confer about.

92. For the reasons given I order that:

1. Ms Saridas be given leave to proceed on the third further amended statement of claim.

2. Ms Saridas bear the costs of the motions dealt with in Saridas and Saridas (No 2), in respect of those issues on which Oil Search succeeded.

3. Oil Search bear the costs of the motions dealt with in Saridas and Saridas (No 2), in respect of those issues on which Ms Saridas succeeded.

93. The matter will be listed on 22 November at 9.30 am for further directions and orders. The parties are directed to file proposed directions and orders beforehand.

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Decision last updated: 07 November 2022