Federal Court of Australia

Reiche v Neometals Ltd [2026] FCAFC 53

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Part 9.4AAA of the Corporations Act 2001 (Cth) (the “Corps Act”) is entitled, “Protection for whistleblowers”. At the risk of substantially oversimplifying them, its provisions confer various protections concerning the making of certain disclosures by “eligible whistleblower[s]”. One such species of protection is the protection from reprisal: that is, from actual or threatened subjection to detriment on account of what is or is perceived to have been disclosed. It is with that protection that the present appeal engages.

2    The respondent (“Neometals”) operates a business that focuses upon sustainable processing solutions (predominantly in the mining industry). The appellant, Mr Reiche, is a former Neometals employee. He was engaged in October 2023 and was employed in the role of “Head of Recycling”. He was dismissed from that role with effect from 4 September 2024.

3    Over the course of his employment, Mr Reiche made a series of disclosures that, he maintains, were apt to engage pt 9.4AAA of the Corps Act; and, in particular, the above-described reprisal protection for which it provides. He casts his having made the relevant disclosures (or any combination of them) as the reason, or part of the reason, for which Neometals decided to terminate his employment. By that decision and certain others, he says, Neometals subjected him to detriment and, thereby, conducted itself in a manner that pt 9.4AAA of the Corps Act prohibits.

4    By an originating application dated 13 September 2024, Mr Reiche sought various forms of relief under pt 9.4AAA of the Corps Act, including injunctive and declaratory relief, and relief in the form of statutory compensation and damages. That application was dismissed on 28 February 2025: Reiche v Neometals Ltd (No 2) (2025) 338 IR 312 (hereafter, the “Primary Judgment”). By a second further amended notice of appeal dated 6 November 2025, Mr Reiche appeals from the whole of the Primary Judgment.

5    For the reasons that follow, none of the grounds of appeal upon which Mr Reiche moves can be established and the appeal should be dismissed.

Factual background

6    The factual background relevant to the appeal is set out at considerable length within the Primary Judgment. It is unnecessary on appeal to rehearse his Honour’s findings at anything more than a headline level.

7    As has been observed, Mr Reiche assumed the role of head of recycling at Neometals (a listed Australian company) in October 2023. The role had an external dimension, being to represent Neometals’ interests on the management board of a subsidiary that it owned jointly with a German company. That subsidiary (“Primobius”) was the vehicle through which Neometals and its German partner carried out a joint venture to design and construct a lithium-ion battery recycling plant for a client in Germany (the “Plant”).

8    It was to Primobius—and Neometals’ interest in it—that many, if not all of the relevant disclosures that Mr Reiche made during his employment pertained. Chronologically, they were:

(1)    issues that he identified in February and March 2024 at meetings of the Neometals board that, at the risk of oversimplifying, related to risks to its interest in Primobius stemming from governance concerns, conflicts with the interests of Neometals’ German partner, and Neometals’ commercial arrangements with that partner and Primobius’s key supplier;

(2)    a concern, raised by Mr Reiche with the chief executive officer of Neometals (Mr Christopher Reed) in April 2024, that certain components required to build the Plant had been “reverse engineered” from those produced by a third-party company and that “Primobius was knowingly concerned in the misuse of confidential and commercially sensitive information and (or) breach of a law relating to intellectual property” (Primary Judgment, [464]);

(3)    a concern raised twice in early April 2024 (with Mr Reed and with Mr Steven Cole, the non-executive chair of Neometals and a Neometals appointee to the Primobius advisory board) about the circumstances in which Primobius’s acceptance of a purchase order in relation to the Plant might have come to be marked with the signature of Mr Reiche’s predecessor, Ms Merryl Gray—and, more specifically, about whether it may have been applied otherwise than by her or with her authority (Primary Judgment, [252], [257]); and

(4)    a letter dated 9 July 2024, addressed and provided by hand to Mr Cathal Smith, Neometals’ general counsel, which (amongst other things) consolidated the previous disclosures and identified itself as a disclosure to which the terms of pt 9.4AAA of the Corps Act applied.

9    The content of that final disclosure and the fact that it had been made was shared amongst Neometals personnel only gradually. Mr Smith provided the letter later that same day to Mr Christopher Kelsall, chief financial officer of Neometals. Together, they promised Mr Reiche that they would commission an independent investigation, subject to his providing sufficient information to inform it. On two occasions in July, Mr Kelsall engaged with Neometals’ people and culture manager, Ms Amanda Di Virgilio, about the process to be followed when a whistleblower disclosure was received; but he did not provide any particulars of the letter and Ms Di Virgilio did not receive a copy of it until 26 August 2024. The directors of the Neometals board first received copies of it on 21 August 2024, when it was emailed to them by Mr Reiche’s legal representatives.

10    In the months prior to and following that final disclosure, several corporate structuring and resourcing processes unfolded. A number of them were cast, before the primary judge, as steps taken by Neometals to Mr Reiche’s detriment and as a consequence of the disclosures that he had made. Only a couple are relevant to Mr Reiche’s appeal.

11    The first is that, in the context of a larger restructure that the business was (and had for some time been) planning, Mr Reiche’s role came to be considered for redundancy. On 21 August 2024, the Neometals board—comprised, together with Messrs Reed and Cole, of Dr Jennifer Purdie, Mr Lee Guthrie and Mr Douglas Ritchie—resolved to approve a restructure plan that featured that consequence. The resolution contemplated that, if it proceeded with making his role redundant, Neometals would place Mr Reiche on “gardening leave” for his two-month notice period.

12    On 22 August 2024, notice of the restructure was provided to both Mr Reiche and the Australian Securities Exchange. Neometals thereafter sought to consult with Mr Reiche about its ramifications; but Mr Reiche did not participate in that process, ostensibly by reason of illness. On 4 September 2024 and on the recommendation of Ms Di Virgilio, Mr Reed resolved to terminate Mr Reiche’s employment with immediate effect.

The statutory framework

13    Part 9.4AAA of the Corps Act commences with s 1317AA, which relevantly provides (and, at the times of significance to this appeal, provided) as follows, namely:

1317AA Disclosures qualifying for protection under this Part

…

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.

…

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.

…

14    Before the learned primary judge at first instance, there was no dispute that Neometals qualified as a “regulated entity” for the purposes of s 1317AA of the Corps Act, nor that Mr Reiche qualified as an “eligible whistleblower” in relation to it. Similarly, there was no dispute that, for the purposes of s 1317AA(2)(b) of the Corps Act, each of the officers to whom Mr Reiche made the disclosures upon which he relied was “…an eligible recipient in relation to [Neometals]”.

15    Section 1317AD of the Corps Act is the provision of primary relevance to this appeal. It operates to make compensable certain forms of reprisal conduct. Relevantly, it provides (and provided) as follows, namely:

1317AD 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

…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

…and

(b)     if that onus is discharged—the other person bears the onus of proving that the claim is not made out.

…

16    Section 1317ADA of the Corps Act defines what is meant by the reference in s 1317AD to “detriment”. There is and was no dispute that Neometals’ decisions to make Mr Reiche’s role redundant and to dismiss him from his employment with immediate effect were each apt to constitute “detriment” in the sense that s 1317AD(1)(a) of the Corps Act contemplates.

17    Section 1317AE of the Corps Act confers (and conferred) upon the court the power to grant various forms of relief, including those for which Mr Reiche moved.

The Primary Judgment

18    The trial of Mr Reiche’s application was the subject of expedition. It commenced a little over seven weeks after the matter was instituted, and was heard over eight days in November and December of 2024. Despite the volume of evidence that required assimilation and the number of issues to which it gave rise for the court’s consideration—and notwithstanding the intervention of the Christmas and New Year break—the Primary Judgment was delivered very quickly. It extended over nearly 200 pages, the bulk of which was directed to what was, with respect, a careful distillation of the evidence, and a logically structured and very detailed catalogue of the factual findings that his Honour was minded to draw from it.

19    Mr Reiche’s claims fixed upon six disclosures (summarised above at [8]), each of which, he submitted, was a disclosure that qualified for protection under pt 9.4AAA of the Corps Act. At the least, he submitted, Neometals understood each of them to be such a disclosure; and was minded to act as it did (including, as is relevant for present purposes, by terminating his employment) on account of that understanding. It repays to expend some effort to understand the primary judge’s approach to those issues.

20    Under the heading, “Legislative framework”, his Honour dedicated considerable analysis to (amongst other things) the matters of which he had to be satisfied in order that he might grant Mr Reiche the relief for which he had moved. Under the subheading, “Elements of cause of action for compensation and other relief”, his Honour observed as follows (Primary Judgment, [67]-[68]):

Elements of cause of action for compensation and other relief

67    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.

68     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).

21    His Honour then, under a different subheading (“Disclosure that qualifies for protection”), moved to consider the extent to which it might be necessary to find that Mr Reiche’s disclosures were disclosures that qualified for protection under pt 9.4AAA. In that regard, his Honour observed (Primary Judgment, [69]-[73]):

Disclosure that qualifies for protection

69     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.

70     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.

71     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.

72     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.

73     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.

22    Later still, his Honour was concerned to identify when it might be that a person believes or suspects that another person has made a disclosure that qualifies for protection under pt 9.4AAA of the Corps Act. Relevantly, his Honour observed (Primary Judgment, [84], [87]):

Belief or suspicion of qualifying disclosure

84     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

87     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.

23    The primary judge was next concerned to consider, conceptually, the extent to which it might have been necessary to assess whether Neometals appreciated that Mr Reiche’s disclosures contained information that concerned misconduct or the existence of an improper state of affairs in relation to Neometals or a related body corporate. His Honour observed (Primary Judgment, [93]):

It is not necessary for the purposes of this proceeding to reach a definitive conclusion on the meaning of ‘information concern[ing] misconduct, or improper state of affairs or circumstances, in relation to … the regulated entity’ or the limits of the nature of information captured by that expression in s 1317AA(4). It is sufficient to observe that, where a putative whistleblower is in possession of information of a nature that does not obviously or readily engage or assist the regulatory functions (compliance, enforcement and (or) discipline) of ASIC, APRA or another Commonwealth authority in relation to the regulated entity (or a related body corporate), a person who causes detriment to the whistleblower may plausibly not have reason to believe or suspect that disclosure of that information by the whistleblower would qualify for protection under Pt 9.4AAA of the Act.

24    Rounding out his consideration of the “Legislative framework” (or those parts of it with which the present appeal engages), his Honour’s attention turned to what might be understood as the reason, or part of the reason, that animates detrimental conduct. After referring to authorities arising from analogous provisions of the Fair Work Act 2009 (Cth) (the “FW Act”) and its predecessors (including General Motors Holden Pty Ltd v Bowling (1975) 12 ALR 605 (“Bowling”; Barwick CJ, Gibbs J, Stephen J, Mason J, Jacobs J)), his Honour concluded (Primary Judgment, [99]-[100]):

99     … while the protection against victimisation and provision for compensation and other relief for detrimental conduct is an important component of the provisions in Pt 9.4AAA that are intended to encourage whistleblowers to make disclosures, it is not necessary to give effect to that purpose to extend ‘part of the reason’ to a reason that was incidental or that is a not substantial and operative factor in the reason for the detrimental conduct.

100     The mere fact that a person considered or took into account a proscribed belief or suspicion in making a decision to engage in detrimental conduct does not answer the description of the reason or part of the reason for the detrimental conduct. The reason or part of the reason describes the or a reason that moved the person to engage in the detrimental conduct…

25    The remainder of his Honour’s judgment (or the overwhelming bulk of it) is devoted to the evidence that was led and to the factual findings that he was minded to draw from it. Only a small number of those findings bear upon the issues that arise on appeal. It is unnecessary to analyse them in any detail at this juncture. Instead, attention can be given to them in the context of the individual grounds of appeal that Mr Reiche presses.

26    In the interim, it suffices to offer the following by way of summary.

27    The primary judge accepted—indeed, it was not controversial—that Neometals’ decision to restructure its operations such that Mr Reiche’s role became redundant and its related decision to terminate his employment with immediate effect was, in each case, “detrimental conduct” for the purposes of s 1317AD(1)(a) of the Corps Act (Primary Judgment, [422]-[423]).

28    Insofar as concerned the disclosures that Mr Reiche made to the Neometals board in February and March of 2024, his Honour was satisfied that “…none of the members of the Neometals board believed or suspected that Mr Reiche had made, may have made, proposed to make or could have made a protected disclosure concerning the subject matter of the presentations” (Primary Judgment, [440]). In that respect, his Honour observed (Primary Judgment, [442]-[444]):

442     Neither of the presentations that Mr Reiche made to the board was identified, by him, as a disclosure of information that was intended to be made under the Whistleblower policy and subject to the protections of Pt 9.4AAA of the Act.

443     None of the concerns that Mr Reiche raised at the meetings readily and obviously fall within the description of inappropriate conduct in the Whistleblower policy. Nor do these concerns readily or obviously involve the disclosure of information about misconduct or an improper state of affairs relating to Neometals within the meaning of s 1317AA(4) of the Act. Broadly, the nature of Mr Reiche’s concerns related to strategic or commercial risks associated with the manner in which the Primobius joint venture was operating. Mr Reiche perceived there to be a difference between the legal position under the shareholders agreement and other legal documents and the manner in which the joint venture was operating in fact. The members of the Neometals board were aware of the strategic and commercial risks as these were inherent in the joint venture structure and agreements that had been made.

444     Mr Reiche’s concern about asymmetrical contracts that disproportionately favoured [Neometals’ German joint venture partner] over Primobius was not really explained in his evidence. It appears to be an allusion to the arrangement whereby [a supplier] was contracted to construct the [Plant] and, thereby, was to receive 97% of the revenue derived from Primobius’ customer. However, the asymmetry reflects the apportionment of risk between Primobius and [the supplier] under a lump-sum contract. Given that division of risk, it is not correct to characterise the arrangement as favouring [the German partner] or [the supplier] to the disadvantage of Primobius. In short, the directors of Neometals did not accept the concept of asymmetry or disproportion. But, in any case, Mr Reiche was merely pointing out the effect of arrangements that were in place and had been accepted.

29    His Honour also referred thereafter to evidence received from particular Neometals executives about their own states of mind concerning the board disclosures. That analysis culminated in the following conclusion (Primary Judgment, [461]):

I conclude that none of Mr Cole, Dr Purdie, Mr Guthrie, Mr Ritchie or Mr Reed believed or suspected, as a result of anything Mr Reiche said during the board meetings in February and March 2024, that Mr Reiche had made, may have made, was proposing to make, or could make a disclosure that qualified for protection under Pt 9.4AAA of the Act.

30    Insofar as concerned the communication that Mr Reiche had with Mr Reed in April 2024 about his concern that confidential information belonging to a third party had been improperly disclosed or used, the primary judge accepted Mr Reed’s evidence that he had not considered that Mr Reiche “…was acting as a whistleblower, as it was part of his job to raise such matters”. His Honour concluded (Primary Judgment, [464]-[465]):

464    …The concern that Mr Reiche expressed to Mr Reed was, in effect, that Primobius was knowingly concerned in the misuse of confidential and commercially sensitive information and (or) breach of a law relating to intellectual property. That exposed Primobius to the risk of legal liabilities and costs. That, in turn, exposed Neometals to financial risk through its interest in Primobius. The existence of these risks is not obviously misconduct or an improper state of affairs in relation to Neometals within the meaning of s 1317AA(4) of the Act. Nor does the existence of these risks obviously fall within the meaning of inappropriate conduct in the Whistleblower policy.

465    I accept Mr Reed’s evidence about his state of mind. While it is a somewhat self-serving statement, it is also consistent with the objective facts. On Mr Reiche’s evidence of the information he disclosed, Mr Reed had no reason to think that Mr Reiche was making, may have made, proposed to make or could make a protected disclosure under Pt 9.4AAA with respect to his stated concern about procurement of ‘reverse engineered’ [components]. I conclude that Mr Reed did not have such a belief or suspicion.

31    Insofar as concerned the communications that Mr Reiche had with Messrs Cole and Reed in early April 2024 about Ms Gray’s signature, his Honour concluded that the issue that Mr Reiche had raised was not one that was warranted in the circumstances. Further, he accepted the evidence of Messrs Cole and Reed that neither took the communications from Mr Reiche as the making of a disclosure that qualified for protection under pt 9.4AAA of the Corps Act (Primary Judgment, [468]). That conclusion was, at least on Mr Reiche’s contention, informed by investigations that Mr Reed performed and shared with Mr Reiche and Mr Cole. Those investigations, so the primary judge concluded, were apt to confirm that the signature had been applied by Ms Gray or with her authority.

32    Perhaps for obvious reasons, the primary judge reached slightly different conclusions about Mr Reiche’s letter of 9 July 2024. His Honour accepted that Messrs Smith and Kelsall, “…as of 9 July 2024, believed or suspected that Mr Reiche may have made a disclosure that qualified for protection under pt 9.4AAA of the Act” (Primary Judgment, [470]). His Honour reached a similar conclusion in respect of Ms Di Virgilio, although he accepted that the suspicion that formed in her mind as a consequence of discussions that she had had with Mr Kelsall was that Mr Reiche had made a disclosure different to the disclosure that, by the 9 July letter, he had actually made (Primary Judgment, [472]). As for the members of the board—Mr Cole, Dr Purdie, Mr Ritchie, Mr Guthrie and Mr Reed—his Honour accepted their evidence that none of them was aware of Mr Reiche’s 9 July letter until after the board meeting of 21 August 2024, when his solicitors emailed a copy of it to them (Primary Judgment, [473], [487]).

33    Having surveyed what the relevant Neometals officers had understood about the nature of Mr Reiche’s disclosures, the primary judge’s attention next turned to whether detrimental conduct had been visited for a reason that s 1317AD(1) proscribes.

34    His Honour began that task by considering the reasons for which Mr Reiche’s position was made redundant (or, perhaps more accurately, the reasons for which Neometals’ business was restructured in such a way that resulted in that position’s redundancy). Accepting that the decision to make Mr Reiche’s position redundant (a facsimile phrase that we shall use as one of convenience) was made by resolution of the Neometals board on 21 August 2024, his Honour concluded that it could not have been made because, or for reasons that included that, any members of the board believed or suspected that Mr Reiche had made or might have made a disclosure or disclosures that qualified for protection under pt 9.4AAA of the Corps Act because none of them then possessed any such belief or suspicion (Primary Judgment, [488]).

35    The primary judge was then moved to consider the reasons for which Mr Reiche’s position had been earmarked for redundancy (ahead of the board meeting that took place on 21 August 2024). His Honour accepted that Dr Purdie, Ms Di Virgilio and Mr Kelsall had, in different ways, been involved in the preparation of the board papers that were the subject of consideration on 21 August 2024; and, hence, that their influence (and the states of mind that animated it) might properly be conceived of as relevant to determining whether Neometals had been moved to act as it did for reasons that s 1317AD(1) of the Corps Act proscribed. Consistently with his conclusion concerning her vote to approve the restructure plan as a member of the board, the primary judge found that there was no basis for impugning Dr Purdie’s motivations in that regard (Primary Judgment, [488]). In respect of Ms Di Virgilio and Mr Kelsall, his Honour concluded that neither was “…motivated by belief or suspicion of whistleblower disclosure to recommend that Mr Reiche’s role be made redundant” (Primary Judgment, [489]).

36    The primary judge’s redundancy conclusions were supported by his consideration of the evidence given by various of Neometals’ officers. Insofar as concerned the resolution that the board endorsed on 21 August 2024, that evidence came from Dr Purdie, Mr Reed, Mr Cole, Mr Guthrie and Mr Ritchie. His Honour accepted the reasons that each of them nominated as their justification for approving the restructure; and accepted that “…a belief or suspicion that Mr Reiche had made, may have made, proposed to make, or could make a protected disclosure was not the reason or part of the reason for their respective decisions to vote in favour of the resolution to make his role redundant” (Primary Judgment, [499]). Equivalent conclusions were reached as to the preparatory influences of Dr Purdie, Ms Di Virgilio and Mr Kelsall (Primary Judgment, [489], [491]).

37    Having determined the reasons for which Mr Reiche’s position became redundant, the primary judge turned to consider why it was that Neometals resolved to dismiss him from his employment and to do so with immediate effect. As to the former—and, perhaps, for reasons that might not require explanation—his Honour accepted that “[t]he decision to terminate Mr Reiche’s employment flowed from the board’s resolution to implement the restructure and make his role redundant” (Primary Judgment, [500]). As to the latter, his Honour accepted that the decision to dismiss Mr Reiche with immediate effect was one that Mr Reed made on Ms Di Virgilio’s recommendation (Primary Judgment, [407]). His Honour proceeded, on that footing, to explore whether either of Mr Reed or Ms Di Virgilio had been minded so to act because, or for reasons that included that, Mr Reiche had made a protected disclosure.

38    After rehearsing the evidence that Mr Reed and Ms Di Virgilio had given about their reasons for preferring to terminate Mr Reiche’s employment with immediate effect, the primary judge concluded (Primary Judgment, [507]) that:

… Mr Reed’s belief that Mr Reiche had made or may have made a disclosure that qualified for protection under Pt 9.4AAA of that Act was not the reason or part of the reason for Mr Reed’s, and therefore Neometals’, decision to terminate Mr Reiche’s contract of employment with immediate effect on 4 September 2024. The reason for the termination was because Mr Reiche’s role had been made redundant and agreement on continuing employment in an alternative role had not been reached within a reasonable period after the restructure and redundancy had been announced. The reason for termination with immediate effect was because Mr Reiche had not engaged with Neometals in relation to his employment and it was thought unlikely that he would engage in the future. I also conclude that, to the extent Mr Reed’s decision adopted Ms Di Virgilio’s recommendation, that Mr Reiche had made or may have made a whistleblower disclosure was not the reason or part of the reason for her recommendation.

39    With all of those conclusions stated, the primary judge neatly summarised the position to which they inexorably pointed (Primary Judgment, [511]-[512]):

Disposition

511     Mr Reiche discharged his onus of adducing or pointing to evidence that suggested a reasonable possibility that Neometals engaged in conduct that caused detriment to Mr Reiche in that Neometals made the role of head of recycling redundant on 21 August 2024 [and] terminated his employment with immediate effect on 4 September 2024…

512     Neometals discharged its onus of proving that Mr Reiche’s claim under s 1317AD(1) of the Act was not made out…In the case of redundancy and termination, Neometals proved that when it engaged in the detrimental conduct it either did not believe or suspect that Mr Reiche had made, may have made, proposed to make or could have made a disclosure of information that qualified for protection under Pt 9.4AAA of the Act, or if it did so believe or suspect, that belief or suspicion was not the reason or part of the reason for the detrimental conduct.

40    On that basis, Mr Reiche’s application was dismissed.

The appeal

41    By his second further amended notice of appeal, Mr Reiche presses 15 grounds of appeal. At a headline level, they neatly refine into two species of complaint: first, that the primary judge misunderstood the nature of the task that the statute, properly construed, required that he undertake; and, second, that his Honour erred either by making or not making various discrete findings of fact.

42    Early on in the trajectory of the appeal, Neometals relied upon a notice of contention, by which it maintained that none of the disclosures upon which Mr Reiche relied was, in fact, a disclosure that qualified for protection under pt 9.4AAA of the Corps Act. That notice was later abandoned and nothing more need be said of it.

43    We will particularise and address each of the 15 grounds of appeal. In advance of doing so, it is prudent to address what emerged, at the hearing of the appeal, as a contention of central importance, namely: what is it that the “first person” must believe or suspect in order that it might be said that detrimental conduct was visited for a reason or reasons that s 1317AD(1) of the Corps Act proscribes?

Belief and suspicion

44    On appeal, Mr Reiche identified three potential ways in which one might construe the reference in s 1317AD(1)(b) to the belief or suspicion of the “first person”.

45    The first posits that the belief or suspicion that must form (and that, in appropriate circumstances, is rebuttably presumed to have formed) in the mind of the putative wrongdoer is a belief or suspicion as to two matters: first, that a disclosure of information has been or might be made; and, second, that, by its nature, it qualifies or would qualify for protection under pt 9.4AAA of the Corps Act. As to the latter, the provision might be understood to contemplate that the wrongdoer had (and should be presumed to have had) an appreciation (founded in belief or suspicion) that protection arose as a legal consequence of the nature of the disclosure. Mr Reiche maintains that that construction of the section was the construction that the primary judge favoured and that his Honour was wrong to prefer it.

46    The second of Mr Reiche’s three potential ways to construe s 1317AD(1)(b) of the Corps Act posits that the belief or suspicion that must exist in the mind of the “first person” extends no further than to the making or potential making of a disclosure by the “second person”. If the putative wrongdoer believes or suspects that a disclosure has been, might have been, is proposed to be or could be made—and if, objectively, the disclosure that is the subject of that belief or suspicion would qualify for protection under pt 9.4AAA of the Corps Act—then the prohibition and the presumptions for which s 1317AD provides may be engaged. Mr Reiche maintains that that was the way in which Katzmann J construed the section in Mount v Dover Castle Metals Pty Ltd (2025) 339 IR 1 (“Mount”) and that it is the correct construction, which “…makes the most sense of part 9.4AAA”. Importantly, the section so construed does not require that a putative wrongdoer have any appreciation (or belief or suspicion) that the disclosure is or would be one that qualifies for protection under pt 9.4AAA of the Corps Act.

47    The third and final of Mr Reiche’s three ways in which s 1317AD(1)(b) might be construed holds that the belief or suspicion that must exist in the mind of the “first person” is subjective in two senses: first, that there has been, might have been, is proposed to be or could be a disclosure about something; and, second, that the subject matter of that disclosure aligns with one of the species of disclosure in respect of which s 1317AA of the Corps Act affords protection. The second element calls for interrogation of the subjective belief or suspicion of the putative wrongdoer; but not for identification of a belief or suspicion that what has been (or will or might be, etc) disclosed is apt to attract the legal consequence of protection under pt 9.4AAA of the Corps Act. Instead, the putative wrongdoer might engage the section insofar as he or she believes or suspects that a disclosure has been, might have been, is proposed to be or could be made; and that it is or would be about (relevantly for present purposes) misconduct or the existence of an improper state of affairs that the “second person” asserts with reasonable grounds. Whether it might also be believed or suspected that a disclosure of that kind attracts protection as a legal consequence of pt 9.4AAA of the Corps Act does not, on this third potential construction, factor as a necessary or determinative matter.

48    That third construction aligns with observations that Raper J made in Jackson v Heart Research Institute Ltd [2025] FCA 301 (“Jackson”), a decision that post-dates the Primary Judgment. There, after referring to what the primary judge in this matter had said, her Honour noted (at [223]):

There is no reason or basis for construing s 1317AD(1)(b) as requiring that the person engaging in the conduct appreciate the legal quality or character of the disclosure. All they need believe or suspect is that a disclosure about, relevantly, misconduct or an improper state of affairs or circumstances, has been, may, is proposed to be made, or could be made. It is not necessary for them to appreciate the legal significance of the disclosure or potential disclosure or have any familiarity with, or appreciation of, Pt 9.4AAA.

49    Mr Reiche submits that the third alternative construction of s 1317AD(1)(b) is productive of potentially unfortunate outcomes. It could, for example, be engaged where a “first person” believes or suspects that a “second person” has made a disclosure of a kind described in s 1317AA of the Corps Act but that belief or suspicion is wrong. The submission continues: by conditioning the power to grant relief upon the existence of a subjective state of mind that might misalign with reality, there is a risk that a person might be liable to relief in respect of a disclosure that is incapable of qualifying for protection under pt 9.4AAA of the Corps Act.

50    It may be accepted that such a risk exists. All of the alternative constructions of s 1317AD(1)(b) of the Corps Act carry with them the possibility that a person might be made liable to relief in circumstances involving beliefs or suspicions that are inconsistent with truth. That is a design consequence of the section; specifically, of its focus upon belief or suspicion, as opposed to knowledge. If the legislature had intended to attach liability to conduct in which a person engaged on account of knowledge—that is to say, because of or for reasons including that there exists, in fact, a state of affairs of which he or she is aware—it could (and, it must be presumed, would) have said so. Likewise, had it seen fit to restrict liability to relief to circumstances involving an actual protected disclosure (as opposed to one merely the subject of belief or suspicion), the section would have assumed a vastly different complexion.

51    By attaching the potential for liability to a state of belief or suspicion, the section serves to discourage a broader range of reprisal conduct relative to what might otherwise be covered were it focused merely upon what is known or true. To the extent that the words of the section permit of any doubt, it is readily extinguished upon review of the Revised Explanatory Memorandum that accompanied the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 (Cth) (which was the bill that, upon enactment, introduced the current form of s 1317AD into the Corps Act). After referring to the related victimisation offence provision (s 1317AC of the Corps Act), that instrument contains the following explanations (emphasis added):

Compensation

Compensation under the existing law

2.105     The right to compensation under the existing law has also suffered from deficiencies. In particular, it is arguably necessary to prove that the offence of victimisation has been committed before a victim of such conduct can seek compensation. As the standard of proof required to establish the offence of victimisation is the criminal standard (beyond a reasonable doubt), on one interpretation a person seeking compensation must prove his or her case on this standard.

2.106     An order could be made under the existing law for reinstatement of a whistleblower whose employment was terminated on the basis of a disclosure under the existing law. However this did not apply to other individuals whose employment may have been terminated because of a belief or suspicion that a disclosure had been made.

2.107     Remedies that can be sought by a person who suffered damage as a result of victimisation in relation to a qualifying disclosure under the existing law are limited.

…

2.113     This Bill removes the requirement under the current law that the victimiser had actual knowledge of a disclosure. A belief or suspicion that a person has made, may have made, proposes to make, or could make a qualifying disclosure is sufficient. This is justified by the need to ensure that the provisions not only address victimisation of actual whistleblowing, but conduct which victimises a person because of the perception of involvement in whistleblowing…

52    With that instrumental landscape surveyed, the correctness of the third of the three potential constructions of s 1317AD(1)(b) of the Corps Act is apparent. In order that the section might ground liability for relief, it is unnecessary that a wrongdoer should appreciate (correctly or otherwise, and whether in the form of a belief or a suspicion) that there is or would be a legal consequence that arises from a disclosure that he or she believes or suspects has been or might be made. What is required is a subjective appreciation of—that is to say, a subjective belief or suspicion about—the elements that accumulate to a point that attracts protection. Relevantly (in circumstances that are apt to engage s 1317AA(2) of the Corps Act), that requires a belief or suspicion that a “second person” has, with reasonable grounds, made (or might, with reasonable grounds, make) a disclosure concerning misconduct or an improper state of affairs that relates to a regulated entity. In order to escape liability for relief relating to detrimental conduct, a putative wrongdoer must establish one of three things, namely that he or she:

(1)    did not believe or suspect that a disclosure had been or might be made;

(2)    did believe or suspect that a disclosure had been or might be made but did not believe or suspect that it was or would be about (relevantly for present purposes) misconduct or the existence of an improper state of affairs; or

(3)    believed or suspected that a disclosure had been or might be made and that it was or would be about (relevantly for present purposes) misconduct or the existence of an improper state of affairs but did not believe or suspect that the person who made it had reasonable grounds upon which to do so.

53    As has been noted, that is the premise upon which Raper J proceeded in Jackson. Contrary to Mr Reiche’s submission, it is also consistent with Katzmann’s J approach to the section in Mount. Her Honour’s reasoning in that case is neatly encapsulated in the following observation (Mount, [379]):

…s 1317AD(1)(b) will not be satisfied if, at the time of the detrimental conduct, DCM’s decision makers neither believed nor suspected that Mr Mount had made a disclosure to an officer or senior manager of DCM (that being the only class of eligible recipient to which Mr Mount claimed to have made the relevant disclosures) of information he had reasonable grounds to suspect concerned misconduct or an improper state of affairs in relation to DCM. That means that, for the purpose of the claim under s 1317AD, DCM also bears the onus of proving that there were no reasonable grounds for Mr Mount’s suspicions.

54    Although it doesn’t bear upon the issue presently in focus, there might be reason to doubt, with respect, the correctness of—or, perhaps, the precision inherent in—her Honour’s concluding observation. It might generally be that there is a correlation between (on the one hand) the objective existence of reasonable grounds upon which a person might have blown or might blow a proverbial whistle and (on the other) a subjective belief or suspicion on the part of a “first person” that such grounds existed or exist. However, it is not the case that the putative wrongdoer bears an onus of establishing there were no reasonable grounds for the purported whistleblower’s suspicions. The focus is rather what was believed or suspected by the putative wrongdoer and whether they have displaced the presumption (identified in s 1317AD(2B)). It may be, as already adverted to, that the putative wrongdoer and whistleblower were completely at odds as to what the purported whistleblower suspected. The focus is on what the putative wrongdoer believed or suspected that a disclosure had been or might be made about and whether he or she believed or suspected that the person who made or proposed to make it had or would have reasonable grounds upon which to do so.

55    The fact that the putative wrongdoer believed or suspected that the purported disclosure may have a legal consequence, or that the evidence establishes that the purported whistleblower did or did not have a basis for a reasonable suspicion as to the existence of misconduct or an improper state of affairs, or that the facts or evidence establish that the suspicion (whether of the putative wrongdoer or the purported whistleblower) did in fact give rise to a protection, may be relevant as part of the forensic exercise undertaken in determining whether the putative wrongdoer has discharged his or her onus in establishing that he or she did not have the impugned belief or suspicion. If there is overlap between the purported whistleblower’s claimed suspicion (as to the existence of misconduct, etc) and the purported suspicion as understood by the alleged wrongdoer, an objective evaluation of the reasonableness of the claimed suspicion may be relevant. Similarly, if the purported whistleblower’s claimed suspicion was “obvious” (in the sense identified by the primary judge), that may be a relevant factor to be taken into account when assessing the subjective state of mind of the putative wrongdoer. It may be that a putative wrongdoer might struggle to establish a want of belief or suspicion about the existence of reasonable grounds if the reality is that such grounds objectively exist. Nonetheless, the focus of the section—founded, as it is, upon “…the perception of involvement in whistleblowing”—is upon the subjective state of mind. A “first person” who establishes that he or she neither believed nor suspected that there existed or exists reasonable grounds upon which to have made or to make a disclosure will escape the reach of the section even if that belief or suspicion is wrong.

56    This interpretation is concordant with the approach of the primary judge in this matter. It is not accepted that his Honour’s analysis is open to be confused for an application of the first of the three alternative constructions identified above (at [45]). Rather, it is apparent that his Honour was, with respect, careful to adhere rigidly in his prose to the wording of the statute, the terms of which are capable of suggesting that there must be some subjective appreciation by the “first person” that a disclosure is or would be one that “qualifies for protection”. We do not, however, read his Honour’s analysis in that way. Again with respect, it is clear that his Honour was, in respect of each of the disclosures upon which Mr Reiche relied, astute to identify two things, namely whether Neometals (via the agency of its relevant human officers) held a belief or suspicion:

(1)    as to Mr Reiche having made the disclosure; and

(2)    that it was about, relevantly, misconduct or the existence of an improper state of affairs that Mr Reiche had reasonable grounds for asserting.

57    So much is apparent from an observation of his Honour’s that has already been recorded but is prudent to repeat (Primary Judgment, [87]):

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.

58    The so-called third construction of s 1317AD is the correct construction; and it is the construction upon which the primary judge no less correctly proceeded.

59    With those observations made, attention can turn to the discrete grounds of appeal that Mr Reiche presses.

Ground one: misconduct and impropriety

60    Mr Reiche’s first ground of appeal charges the primary judge with having erred “…by applying the wrong test in assessing whether the disclosures concerned ‘obvious misconduct or an improper state of affairs’, rather than whether the Appellant had reasonable grounds to suspect such matters…” (emphasis original). Advanced as examples of that incorrect application are the observations that his Honour recorded at [443] and [464] of the Primary Judgment (above, [28], [30]).

61    The primary judge did not proceed upon the basis that a disclosure might only qualify as one concerning misconduct or the existence of an improper state of affairs insofar as it was “obvious” that it did so. Indeed, proceeding as he did upon the correct construction of s 1317AD(1)(b), his Honour made no findings about whether or not Mr Reiche’s disclosures were, objectively and in fact, about matters that went to establish misconduct or the existence of an improper state of affairs. Rather, his Honour—correctly, with respect—was astute to consider the question of more immediate significance, which was whether or not Neometals believed or suspected that Mr Reiche had made disclosures that asserted misconduct or the existence of an improper state of affairs. It was in that regard that his Honour was concerned to assess the apparent extent to which the disclosures upon which Mr Reiche relied conveyed notions of misconduct or impropriety. His Honour correctly reasoned that it would be more difficult for Neometals to establish the negative—that is, that it did not believe or suspect that the subject matter of Mr Reiche’s disclosures was such as to assert misconduct or the existence of an improper state of affairs—if, on their face, it was obvious that they did so.

62    There was no error in proceeding on that footing. The clarity with which a disclosure conveys assertions of misconduct or impropriety is (for want of a better word) obviously a circumstance that informs an assessment as to whether or not a “first person” believes or suspects that a “second person” has made or might make a disclosure that qualifies for protection under pt 9.4AAA of the Corps Act.

63    Likewise, it is not the case that his Honour erred insofar as he failed to accept that Mr Reiche had reasonable grounds for making the disclosures that he made. At the risk of repetition, the objective existence of reasonable grounds that might validate or give rise to the concerns that Mr Reiche was minded to disclose was not dispositive. At issue was whether Neometals (via the agency of its relevant officers) believed or suspected that Mr Reiche had, upon reasonable grounds, made the disclosures that he had made. That was the question to which his Honour directed himself and, with respect, he was correct to do so.

64    Ground one cannot succeed.

Grounds two, three and four: existence of reasonable grounds

65    Appeal grounds 2, 3 and 4 are related—both to each other but also, to some extent, to ground one. They charge the primary judge with having erred insofar as he failed to find that certain of the disclosures that Mr Reiche made to Neometals were premised upon reasonable grounds.

66    Central to grounds 2, 3 and 4 is the proposition that the disclosures to which they relate were disclosures that qualified for protection under pt 9.4AAA of the Corps Act. Again at the risk of repetition, that is not a circumstance upon which the availability of relief under s 1317AD is conditioned. It may not ultimately matter whether Mr Reiche in fact had reasonable grounds to make the relevant disclosures; what matters is whether Neometals believed or suspected that what he had disclosed was premised upon such grounds. As reasoned above, however, whether in fact Mr Reiche did or did not have reasonable grounds to make the relevant disclosures is a circumstance that informs the overall evaluative assessment of whether Neometals had the impugned belief or suspicion. The primary judge proceeded on that basis and no error is established in his having done so.

67    Grounds 2, 3 and 4 are not made good.

Ground five: connection with regulatory function

68    Appeal ground 5 posits that the primary judge fell into error by “…finding that where a putative whistleblower is in possession of information of a nature that does not obviously or readily engage or assist the regulatory functions (compliance, enforcement and/or discipline[)] of ASIC, APRA or other Commonwealth authority in relation to the regulated entity (or a related body corporate), a person who causes detriment to the whistleblower may plausibly not have reason to believe or suspect that disclosure of that information by the whistleblower would qualify for protection…” The error is said to be apparent from what his Honour said at [93] of the Primary Judgment (above, [23]).

69    As might be apparent, appeal ground 5 bears at least some conceptual similarity with appeal ground 1. It should be determined in the same way. His Honour did not reason that a disclosure can only credibly be understood to pertain to misconduct or impropriety insofar as it connects, in some way, with a public regulatory function. His Honour’s only observation was that, in the absence of such an obvious or ready connection, it might be easier for a “first person” to establish the requisite want of belief or suspicion that a disclosure qualifies for protection. Again, this aspect of his Honour’s reasoning illustrates the different objective ways his Honour considered were available to test the veracity of the subjective belief of the “first person”.

70    As a proposition, it is difficult to understand how that might be doubted. Although perhaps not in every case, allegations of misconduct or as to the existence of an improper state of affairs will often be allegations that are apt to invoke prospects of regulatory intervention or oversight. Insofar as concerns matters that fall short of that threshold, a “first person” might well be less likely to believe or suspect that the disclosure qualifies for protection under pt 9.4AAA of the Corps Act. That is what his Honour said and there was no error in his saying it.

Grounds six and seven: appreciation of legal consequence

71    Appeal ground 6 posits that the primary judge erred by requiring, as a condition precedent to the granting of relief, that Neometals appreciate that the disclosures that Mr Reiche made were disclosures that qualified for protection under pt 9.4AAA of the Corps Act. Appeal ground 7 is related, in that it charges his Honour with the consequential error of having failed to accept that the relevant Neometals officers possessed the belief or suspicion upon which the section, on Mr Reiche’s construction of it, conditions liability to relief.

72    Grounds 6 and 7 were the primary subject of the oral submissions received on appeal and are directed to what we earlier described as the “contention of central importance”, namely: what is it that the “first person” must believe or suspect in order that it might be said that detrimental conduct was visited for a reason or reasons that s 1317AD(1) of the Corps Act proscribes?

73    Mr Reiche posits that the primary judge preferred to apply the first of the three alternative constructions of s 1317AD(1)(b) of the Corps Act that have already been addressed. For reasons already outlined, that is not so. In truth, his Honour was concerned to apply the provision upon its correct construction. The errors with which appeal grounds 6 and 7 charge him did not transpire and, accordingly, those grounds must fail.

Ground eight: Ms Di Virgilio’s state of mind

74    It is convenient to replicate appeal ground 8 in full:

8     The primary judge erred in finding at J[472] that it was only as of late July 2024 that Ms Di Virgilio suspected that Mr Reiche had made or proposed to make or could make a protected disclosure (referring to the sixth disclosure) as that finding is:

a.     not founded in the evidence:

b.     inconsistent with the concession made by the Respondent and recorded at J[45] that Ms Di [Virgilio] believed as of 9 July 2024 that Mr Reiche may have made or proposed to make or could make a protected disclosure.

75    The evidence before the primary judge was as follows. Sometime after receiving Mr Reiche’s letter of 9 July 2024, Mr Kelsall approached Ms Di Virgilio for some advice about how he might respond to a “whistleblower disclosure”. Ms Di Virgilio and Mr Kelsall had a further (and no less hypothetical) discussion in “late July 2024”. Ms Di Virgilio’s evidence was that, on that second occasion—and notwithstanding that he had not told her anything about the content of the letter or its author—Ms Di Virgilio came away from her discussion with Mr Kelsall suspecting that Mr Reiche had made a “whistleblower disclosure”. She thought that it was likely to have been based upon allegations that Ms Gray’s signature had been forged.

76    In closing submissions before the primary judge, counsel for Mr Reiche appeared to accept that, from his cross-examination of her, “…it turned out to be somewhere around 24 July 2024 that Ms Di Virgilio came to the realisation or assumed that the whistleblower was Mr Reiche”. An equivalent submission was advanced in writing; namely that Ms Di Virgilio came to hold a belief or suspicion that Mr Reiche had made a whistleblower disclosure, “…at least as at 24 July 2024”.

77    The evidence did not precisely align with Neometals’ concise response. By that document, it appeared to concede that, “…as of shortly after 9 July 2024…Ms Di Virgilio believed [that Mr Reiche] may have made, proposed to make or could make a disclosure that qualifies for protection under Part 9.4AAA of the Corporations Act…” That concession appears to have been maintained before the primary judge, who recorded it in the following terms (Primary Judgment, [45]):

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.

…

(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.

…

78    Much later in his reasons for judgment, the primary judge had occasion to consider how it came to be that Mr Reiche’s position had been earmarked for redundancy. His Honour concluded that, “…a decision had been made, at least by Ms Di Virgilio and Mr Kelsall, by 9 July 2024 to recommend making Mr Reiche’s role redundant” (Primary Judgment, [376]). Insofar as concerned Ms Di Virgilio’s role in that regard, his Honour explained that his conclusion was consistent with her having, early on 9 July 2024, circulated a restructure plan that contemplated Mr Reiche’s redundancy.

79    His Honour continued (Primary Judgment, [377]):

It follows that the decision to recommend that Mr Reiche’s role be made redundant was made by Ms Di Virgilio and Mr Kelsall before Mr Kelsall was aware of the formal whistleblower document and before Ms Di Virgilio suspected that Mr Reiche may have made a whistleblower disclosure. As explained later in these reasons, based on conversations she had with Mr Kelsall, in late July 2024 Ms Di Virgilio suspected that Mr Reiche had made or may have made a qualifying disclosure…

80    Those observations are consistent both with the evidence that Ms Di Virgilio gave (including in cross-examination) and with Neometals’ more generous concession. Contrary to what appeal ground 8 alleges, his Honour did not find that Ms Di Virgilio’s belief or suspicion “only” arose in late July 2024; merely that it existed at that point in time. That finding was repeated at [472], to which the text of the ground refers.

81    The significance of all of this is difficult to pinpoint. On 26 July 2024, Ms Di Virgilio prepared a paper for presentation before the Neometals board. Consistent with the recommendation that, so his Honour concluded, had already been decided upon, it nominated Mr Reiche’s position as one that might be made redundant. There is no suggestion—and certainly no finding by the primary judge—that, when she prepared that paper, Ms Di Virgilio was yet to form the belief or suspicion that everybody appears to accept that she had by at least late July 2024. The preparation of the paper was not sought to be (assuming, perhaps, that it could have been) constituted as an instance of “detrimental conduct” in its own right.

82    Two things are clear. The first is that his Honour did not err in the way that appeal ground 8 posits. The second is that it wouldn’t matter if he did. Insofar as it concerned a belief or suspicion attributable to Ms Di Virgilio, Mr Reiche’s case failed not because his Honour accepted that no such belief or suspicion existed; but because his Honour accepted that it did not factor as the reason, or part of the reason, why Ms Di Virgilio was minded to act in any of the ways that she was found to have acted (and, in particular, to have made the recommendation that she made about the restructuring of the Neometals business).

Ground nine: redundancy timing

83    Appeal ground 9 charges the primary judge with having erred by not finding, “…that s 1317AD(1)(b)…was satisfied by no later than 9 July 2024 or shortly thereafter”.

84    Neither by written nor oral submissions was any meat attached to those proverbial bones. It is convenient to replicate in full (omitting references) what was said in writing, namely:

…the required state of mind existed in Mr Smith and Mr Kelsall as of 9 July (J[470]), and in Ms Di Virgilio by the same date or shortly thereafter. Therefore, by 9 July, or shortly thereafter, well before the restructure paper was prepared on 26 July (and approved by the Board on 1 [sic] August), the condition in s 1317AD(1)(b) was satisfied. The primary judge erred in failing to so find.

[and then, in reply]

The primary judge accepted that s 1317AD extends to the state of mind of any officer or agent whose conduct is attributed to the company, including where that conduct is a material cause of the detriment (J[104], [109]). Mr Kelsall (CFO) and Ms Di Virgilio (People & Culture Manager) were senior officers central to the redundancy process. Their actions from 9 July led to the 26 July restructure paper and the Board’s adoption of the redundancy recommendation on 21 August (J[378], [389], [472]). Their conduct and state of mind are properly attributable to Neometals.

85    Insofar as it might have been suggested, it is not the case that a corporate principal is properly understood to possess, at large, the states of mind of its agents. In the present statutory context (if not always), a state of mind is relevant only insofar as it might contextualise conduct (relevantly here, the visitation of the effects of “detrimental conduct”): Meridian Global Funds Management Asia Limited v Securities Commission [1995] 2 AC 500 at 506-11 (Lord Hoffman); Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421, 466 [94]-[101] (Edelman J, Allsop CJ agreeing at 437 [62]-[63], Besanko J agreeing at 438 [69]). That being so, one cannot determine why particular corporate conduct was engaged in without first identifying by whom it was effected. The fictional state of mind with which corporate conduct was engaged in does not extend to incorporate the actual states of mind of agents who played no role in effecting it.

86    The primary judge was alive to that reality. His Honour was, with respect, careful to explore not merely the mechanics and motivations of the board resolution by which Mr Reiche’s position became redundant; but also the preparatory conduct that led to the recommending of that course. We have already mapped out that analysis and the conclusions that his Honour was minded to draw from it: above, [32]-[36].

87    We are led to conclusions equivalent to those that we drew in respect of appeal ground 8. It is not apparent that his Honour failed to make the finding that appeal ground 9 posits; but, just as significantly, it is not apparent how his overall determination was materially affected even assuming that he did. Insofar as concerns the conduct that was preparatory to the Neometals board’s resolution of 21 August 2024, Mr Reiche’s case was not lost for want of establishing (even by presumption) the belief or suspicion to which s 1317AD(1)(b) of the Corps Act refers; but because Neometals was able to establish, for the purposes of s 1317AD(1)(c), that its belief or suspicion was not the reason, or part of the reason, for its conduct.

88    His Honour’s reasoning was orthodox and unaffected by the error that is alleged.

Ground ten: the reason or part of the reason

89    Appeal ground 10 draws upon—and requires success on—appeal ground 6. It posits that the primary judge erred by transposing an incorrect construction of s 1317AD(1)(b) of the Corps Act (which is the subject of appeal ground 6) upon his assessment of the reasons for which Neometals subjected Mr Reiche to detrimental conduct.

90    Necessarily, having rejected the premise of appeal ground 6, appeal ground 10 should also fail. There was no transposing of an incorrect construction.

Ground eleven: substantial and operative reasons

91    Appeal ground 11 charges the primary judge with having erred insofar as he construed the reference in s 1317AD(1)(c) to “the reason, or part of the reason, for the detrimental conduct” as apt to encompass “substantial and operative factor[s] in the reason for the detrimental conduct”.

92    So to construe that reference, Mr Reiche maintains, is to introduce into the concept of “the reason, or part of the reason” qualifications that are not reflected in the words of the statute.

93    In making good on that proposition, Mr Reiche seeks to distinguish the language employed by s 1317AD(1)(c) of the Corps Act from the language of the provisions in other legislation, principally the FW Act and its predecessors. The legislature’s choice of the phrase, “the reason, or part of the reason”, he says, is to be contrasted with the use of other phrases, including those employed by the FW Act, which speak of conduct being engaged in “because” of some other circumstance. Whereas the latter engages a “single limb causality test”, s 1317AD(1)(c), he says, “…has a double limb causality test” and, hence, requires a different frame of analysis.

94    That point of distinction is, with respect, not compelling. The “General Protections” provisions of the FW Act speak interchangeably of “reasons” and things that are done “because” of other things. Section 340 of the FW Act, for example, prohibits a person from taking “adverse action” (a concept elsewhere defined, as here, by reference to conduct and its consequences) “…because the other person…has a workplace right”. Section 361(1) of the FW Act, which operates to create a rebuttable presumption not unlike the one that s 1317AD(2B)(b) of the Corps Act establishes (albeit in respect of provisions that include, but are not limited to, s 340), provides as follows, namely:

361 Reason for action to be presumed unless proved otherwise

(1)     If:

(a)     in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)     taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

95    Section 360 of the FW Act bears an obvious resemblance to part of what appears in s 1317AD(1)(c) of the Corps Act. It provides as follows, namely:

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

96    Although they employ different terminology, the two statutory regimes are relevantly indistinguishable. To speak of conduct that is engaged in “because” of some identified circumstance is merely to nominate that circumstance as “the reason, or part of the reason” for which that conduct was undertaken. Likewise, to accept that a circumstance that is the reason or part of the reason for which conduct was undertaken is to appreciate that the conduct was engaged in because of or for reasons that include that reason.

97    So understood, the primary judge’s invocation in this matter of principles that have emerged from employment law contexts was orthodox and not in error.

98    In Bowling, the High Court was called upon to consider whether a decision to dismiss two employees from their employment at a manufacturing worksite had been made because they were union delegates. The employer maintained that it had dismissed the men in question because it considered that they were (to summarise politely) “troublemakers”; not because they were union delegates. The employees countered by suggesting that they were only considered to be troublemakers because it was part of their role as union delegates to advance positions that didn’t always align with the interests of their employer. Thus, they maintained, their status as such was the reason, or a reason, why they had been treated as they had been.

99    It was in that context that Mason J was minded to distinguish circumstances that bear no more than contextually upon a given decision-making process from circumstances that serve as animating forces toward particular outcomes. In doing so, his Honour referred to the judgment of Barwick CJ in an earlier decision of the High Court, Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 (“Mikasa”; Barwick CJ, McTiernan, Menzies, Walsh, Gibbs and Stephen JJ). There, the Chief Justice was minded to consider when conduct was engaged in “for the reason that” another circumstance existed. Mikasa concerned allegations of resale price maintenance, which turned upon whether or not the appellant had withheld wholesale supply of goods to the respondent retailer “for the reason that” the retailer had either failed to agree on a resale price for those goods or was otherwise likely to sell them at a price below what the wholesaler had specified. The Commonwealth Industrial Court, from the judgment of which lay the appeal to the High Court, had concluded that the appellant was guilty of resale price maintenance because it had withheld supply of goods to the respondent for the sole reason that the respondent was likely to sell them for less than the price that it recommended. Referring to that conclusion, Barwick CJ reasoned (at 634-5):

…I would not disturb that finding, but, in my opinion, it was not necessary to make that finding in order to establish that the appellant had in this case engaged in the practice of resale price maintenance in the “Mikasa” dinnerware. In my opinion it is not correct to so emphasize the participle in the phrase “for the reason that” as to interpret the paragraph as requiring the withholding of the supply to be for one reason only. In my opinion, if the likelihood that the would-be purchaser would sell at less than the specified price is an operative reason for withholding that supply, the supplier engages in the practice of resale price maintenance, however many other reasons the supplier may in fact have for not supplying the goods to the would-be purchaser. The likelihood of price cutting is not required, in my opinion, to be the predominant reason; it is enough if it is an operative reason, that is to say, a substantial reason in the totality of reasons for the withholding of the supply.

100    Thus does it appear that the adjectives of present relevance—“substantial” and “operative”—made their way into Mason’s J reasoning in Bowling. There, the turn of phrase upon which his Honour settled was “a substantial and operative factor”: as his Honour put it, a man might be understood to have engaged in conduct because of a particular fact or circumstance if that fact or circumstance was “…‘a substantial and operative factor’ influencing him to take that action”: Bowling, 616 (Mason J).

101    The distinction has been applied ever since in industrial law contexts, including in respect of the General Protections provisions of pt 3-1 of the FW Act (and their statutory ancestors). Some examples of its application might assist in understanding the distinction between facts or circumstances that, in any given decision-making scenario, are substantial and operative (on the one hand) and facts and circumstances that are merely contextual or background (on the other).

102    In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (French CJ, Hayne, Crennan, Kiefel and Gageler JJ), for example, an employee was dismissed from his employment because he had brandished an offensive sign whilst participating in a union protest. His union maintained that his participation in its protest was a (relevantly proscribed) reason for his dismissal. That submission was rejected: although plainly relevant in a contextual sense, participation in the protest was held not to be why the employer resolved as it did.

103    This court applied similar reasoning in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 (Jessup, Perram and Bromberg JJ). There, an employee was removed from a weekend roster because he was considered to have an unreliable attendance record. He maintained that the reason that he had an unreliable attendance record was because he had taken a measure of sick leave. Hence, he contended, his entitlement to sick leave stood as a (proscribed) reason for the decision to remove him from the roster. Again, that contention was rejected.

104    There are many other similar examples in which substantial and operative factors were distinguished from factors that were merely contextual to particular outcomes: Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 (Branson J); Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 (R D Nicholson J); Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 (Finkelstein J; dissenting in the result but with whom, on this issue, Merkel J agreed); Australian Workers’ Union v John Holland Pty Ltd (2001) 103 IR 205 (Goldberg J); Wood v City of Melbourne Corporation (1979) 26 ALR 430 (Smithers J); Serpanos v Commonwealth of Australia [2022] FCA 1226 (Snaden J).

105    With those observations concluded, two points may be made about appeal ground 11.

106    The first is that it is unclear how it might assist Mr Reiche in his quest to have the Primary Judgment overturned. Even if the primary judge were wrong to confine his inquiry to circumstances that served as substantial and operative factors in Neometals’ decisions to authorise the restructure of its business and to terminate Mr Reiche’s employment, it is unclear that there might have been any relevant facts or circumstances that bore insubstantially or non-operatively upon any of those decisions in a way or ways that might have attracted relief. The challenge for Neometals under s 1317AD(2B) was to establish that it did not engage as it did in respect of Mr Reiche because or for reasons that included that it believed or suspected that he had made or might make a protected disclosure. That was the task to which its evidence was directed; evidence that the primary judge accepted was sufficient to meet that challenge.

107    Second and more significantly (and with respect), the primary judge was not wrong to define his inquiry as he did. A fact or circumstance will only serve as the reason, or part of the reason, for which conduct was engaged in if and to the extent that it bore substantially and operatively upon that engagement. A fact or circumstance that, although contextually relevant to a given decision (in that, for example, it was considered or was productive of other relevant matters or circumstances), was nonetheless not material to it (in a sense synonymous with substantiality and operation) is not one that can stand as the reason, or part of the reason, why the decision in question was made.

108    Appeal ground 11 must, therefore, fail.

Grounds twelve and thirteen: timing of recommendation

109    Appeal ground 12 charges the primary judge with having erred by concluding that Mr Kelsall and Ms Di Virgilio had decided by 9 July 2024 to recommend that Mr Reiche’s role should be made redundant. The primary judge appears in fact to have concluded, as a matter of inference, that Ms Di Virgilio and Mr Kelsall had decided to recommend Mr Reiche’s position for redundancy before 9 July 2024, which appears to align more with the complaint that is pressed on appeal.

110    Appeal ground 13 is related, in that it posits that, having made the finding about the timing of Mr Kelsall’s and Ms Di Virgilio’s decision to recommend Mr Reiche’s position for redundancy, his Honour wrongly accepted that Neometals was not motivated by a belief or suspicion of the kind to which s 1317AD(1)(c) of the Corps Act refers.

111    The first documentary suggestion that Mr Reiche’s position might have been made redundant appears to reside in a confidential report that Ms Di Virgilio sent to Mr Kelsall and Dr Purdie at 6:04pm on 9 July 2024, only a matter of hours after Mr Reiche first gave to Mr Smith his whistleblower disclosure correspondence of that date. Mr Reiche’s case concept appears clear enough: namely, that the timing was too coincidental.

112    The potential restructuring of Neometals’ operations was plainly a matter that had occupied relevant minds prior to 9 July 2024. It had been the subject of high-level board consideration in June 2024; and, as the primary judge noted, Ms Di Virgilio appears to have spent some time considering the issue on 9 July 2024 (ahead of her email of that evening). At 11:57 that morning, she sent an email to Mr Kelsall attaching an agenda for a discussion that had been scheduled for the following day between (it would appear) Mr Kelsall, Mr Guthrie and, possibly, Dr Purdie. Amongst other things, the agenda foreshadowed some discussion about the “timing of Org restructure v Recycling restructure”.

113    Whether Mr Reiche’s role featured as part of that consideration is less clear. That is a circumstance upon which he seizes: by his submissions on appeal, Mr Reiche impresses upon the court the effect (or what he says was the effect) of the statutory presumption under which Neometals’ defence of his suit laboured. It was, he maintains, for Neometals to establish the state of its beliefs and suspicions at the time that it engaged in detrimental conduct and it was for Neometals to establish that no such conduct was engaged in because or for reasons that included that it possessed any relevant beliefs or suspicions.

114    All of that may be accepted; but how it ties back to his Honour’s conclusion about the timing of the decision to recommend Mr Reiche’s position for redundancy is much less clear. It is to be recalled that the detrimental conduct with which Neometals stood charged assumed (relevantly for this appeal) two forms: it inhered, first, in the decision to restructure the business such that there was no longer a need for Mr Reiche’s position; and, second, in the inevitably related decision to dismiss Mr Reiche from his employment.

115    The first such decision was made by the Neometals board on 21 August 2024. It was not made by Mr Kelsall or Ms Di Virgilio. Nonetheless, his Honour was invited to and did explore not merely the circumstances in which the board decision came to be made but also the circumstances by which the board had been led to consider it. It was in that context that his Honour was concerned to explore the influence that Dr Purdie, Ms Di Virgilio and Mr Kelsall had had on the making of the board’s decision, principally in the form of the board papers that they collectively prepared ahead of the meeting of 21 August 2024. As has been rehearsed already, his Honour accepted that none of them had been minded to act as they did because or for reasons that included that they believed or suspected that Mr Reiche had made a protected disclosure (above, [35]).

116    The states of belief or suspicion that Mr Kelsall and Ms Di Virgilio held at the time that either (or both) of them decided to recommend to the board that Mr Reiche’s position should be abolished were not dispositive. What was relevant—and what his Honour properly had regard to—were the beliefs or suspicions that they possessed at the time that they in fact made the recommendation that they had decided to make; in other words, at the time or times that they put their decision into effect and realised the influence on Neometals’ decision that his Honour accepted that they had had.

117    The primary judge accepted that, at the point or points that they proposed for the consideration of the Neometals board a restructuring that would result in the redundancy of Mr Reiche’s role, each of Mr Kelsall and Ms Di Virgilio believed or suspected that he had made or might make a protected disclosure (above, [32]). To the extent that Mr Reiche maintains that there was some evidential confusion about their states of mind at the point that they decided before then that they would take that course, he might well have a point; but it isn’t one that factors in any meaningful way in the disposition of the appeal.

118    What matters is whether Mr Kelsall and Ms Di Virgilio, when they recommended the restructure that resulted in his redundancy, believed or suspected that Mr Reiche had made or might make a protected disclosure; and, if they did so believe or suspect, whether that belief or suspicion was the reason, or a reason, for their having so recommended. The reasoning of the primary judge in those respects is clear. His Honour accepted, in each case, that the requisite belief or suspicion existed; but he did not accept that it was the reason, or part of the reason, why either did what they did.

119    That reasoning was orthodox. There is no moment now for the court to entertain marginal complaints that could have no bearing on its disposition of the appeal. For reasons equivalent to those explored below in the context of appeal grounds 14 and 15, his Honour’s finding of fact as to the reasons that animated (or, more importantly, did not animate) the recommendation that Mr Kelsall and Ms Di Virgilio made to the Neometals board are findings that this court, on appeal, must respect.

Grounds fourteen and fifteen: motivations

120    By appeal grounds 14 and 15, Mr Reiche moves to attack the findings of fact that his Honour preferred about the reasons for which Neometals visited detrimental conduct upon Mr Reiche (in the form of the restructuring of its business and the termination of his employment).

121    At the risk of unkindness, it is unsurprising that the lengthy second further amended notice of appeal concludes, rather than begins, with these appeal grounds. With respect, they proceed with a measure of ambition. To understand why, it repays to bear in mind the role of an appeal court that is asked to review a judgment for factual error.

122    The present appeal is brought under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”). It is an appeal by way of rehearing: Western Australia v Ward (2002) 213 CLR 1, 87 [70]-[71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ, citing Allesch v Maunz (2000) 203 CLR 172). The court’s powers—enumerated notoriously by s 28 of the FCA Act—are exercisable only insofar as the Primary Judgment is attended by legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ). The “…views and conclusions of the trial judge ultimately have to be shown to be wrong”: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 438 [30] (Allsop J, with whom Drummond and Mansfield JJ agreed).

123    Equivalent observations were recently confirmed by Jagot J in the High Court, in Taylor v Killer Queen LLC [2026] HCA 5 at [221]-[223]:

221    As will also be explained, the consequence of the answers to these six questions of construction is that the Full Court, while correctly acknowledging that "in undertaking an analysis of questions of fact and degree, involving matters of judgment, minds may well differ on the result [so that] mere difference in opinion as to the result does not mean that appealable error is involved in the judgment under appeal", incorrectly attributed errors to the primary judge.

222    The force of the considerations relevant to appellate jurisdiction summarised by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd remains compelling in a case such as the present – the "demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing".

223    With those considerations in mind, this is not a case in which I can conclude either that the primary judge erred in some specific respect or that the primary judge's ultimate evaluations are unreasonable or untenable in order to give rise to material error despite the absence of apparent specific error. Accordingly, the Full Court ought not to have interfered with the orders of the primary judge other than to the extent required to give effect to its conclusion that part of Ms Taylor's cross-appeal should be allowed.

124    Similarly, in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (2026) 100 ALJR 170, the High Court affirmed the principled view as to the caution to be exercised upon appellate review when intruding into questions of fact determined by a primary judge.

125    In Jadwan Pty Ltd v Rae & Partners (A Firm) (2020) 278 FCR 1, 119-121 [404]-[406] (Bromwich, O’Callaghan and Wheelahan JJ), the full court observed:

404    The principles that guide appellate review of findings of fact made by a trial judge have been discussed and applied in many High Court cases over the course of more than 100 years. Those cases include: McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243 at 277 (Griffith CJ); Dearman v Dearman (1908) 7 CLR 549 at 561 (Isaacs J); Scott v Pauly (1917) 24 CLR 274 at 278-281 (Isaacs J); Paterson v Paterson (1953) 89 CLR 212 at 218-225 (Dixon CJ and Kitto J); Voulis v Kozary (1975) 180 CLR 177 at 181-183 (McTiernan J); Warren v Coombes (1979) 142 CLR 531 at 537-553 (Gibbs ACJ, Jacobs and Murphy JJ); Brunskill v Sovereign Marine & General Insurance Company Ltd (1985) 59 ALJR 842; 62 ALR 53 (Brunskill) at 844; 56-57 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ); Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179 (McHugh J); Devries v Australian National Railways Commission (1993) 177 CLR 472 (Devries) at 479-481 (Deane and Dawson JJ); State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306; 160 ALR 588 (Earthline Constructions) at [73]-[93] (Kirby J); Walsh v Law Society (NSW) (1999) 198 CLR 73 at [54] (McHugh, Kirby and Callinan JJ); Rosenberg v Percival (2001) 205 CLR 434 at [27], [37]-[41]…(McHugh J), [92] (Gummow J), [103], [163]-[164] (Kirby J); Fox v Percy (2003) 214 CLR 118 at [22]-[31] (Gleeson CJ, Gummow and Kirby JJ); CSR Ltd v Della Maddalena (2006) 80 ALJR 458; 224 ALR 1 (CSR) at [17]-[24] (Gleeson CJ, Kirby J agreeing); Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 (Miller) at [76] (Heydon, Crennan and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) at [29]-[34] (Gageler J), [153] (Edelman J); and Lee v Lee (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ, Kiefel CJ at [1] agreeing).

405    In evaluating whether there is appealable error in relation to a finding of fact, the authorities distinguish between cases where findings depend upon some benefit enjoyed by the trial judge that is not available to an appellate court, and other cases, such as those where the impugned findings are inferences drawn from uncontroverted facts. Findings that are the product of some benefit enjoyed by a trial judge may include findings of secondary facts that are based on a combination of impressions and other inferences from primary facts: Lee v Lee at [55], citing Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at [144], and Thorne v Kennedy (2017) 263 CLR 85 at [42], which in turn cited Louth v Diprose ([1992]) 175 CLR 621 at 639-641 (Dawson, Gaudron and McHugh JJ). The advantages that a trial judge may enjoy include those “that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole”: Fox v Percy at [23]. See also, Branir at [24], [28] and [29]. The advantages may include the opportunity to assess the testimony of witnesses. The value and importance of having seen and heard witnesses will vary according to the class of case, and the individual case in question: Watt or Thomas v Thomas [1947] AC 484 at 488, cited in Paterson v Paterson at 224, and Devries at 480. The disadvantages in which an appellate court is placed “may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole”: CSR at [17] (Kirby J, Gleeson CJ agreeing). “The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error”: SZVFW at [33] (Gageler J). On the other hand, there may be circumstances where the capacity for appellate synthesis and perspective places the appellate court in an advantageous position over the trial judge: Yarrabee Coal Co Pty Ltd v Lujans (2009) 53 MVR 187 at [3] (Allsop P). In this case, which turns largely on the inferences that arise from the documentary evidence, we have had the benefit of careful consideration of that evidence: cf, Earthline Constructions at [90] (Kirby J).

406    In relation to an appeal from a decision that depends upon the acceptance of the evidence of a witness, the Court in Brunskill at 844; 57 referred to whether the decision was “glaringly improbable”, likely picking up Lord Sumner’s reference to “glaring improbability” in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37 at 50. Brunskill was cited by Kirby P in Chambers v Jobling (1986) 7 NSWLR 1 where, with reference to Warren v Coombs, his Honour stated at 10 –

[Warren v Coombs] re-established a slightly more robust and interventionist role for appeal courts in the review of decisions on the facts or decisions based on inferences from the facts. For all that, such review is always to be performed with proper regard to the advantages which the trial judge enjoyed. Especially is this necessary (as Brunskill lately reminds us) where issues of credibility are raised for decision, directly or indirectly. Particularly is it so where the credibility of a witness is determined by the trial judge, expressly or by inference, on the basis of his impressions of the witness whose credibility is under attack. In such cases, the appellate court is not released from its duty to review the trial judge’s conclusions. But the circumstances in which it may reverse those conclusions are very narrowly defined indeed. They are confined to those few cases where the trial judge’s decision is “glaringly improbable” or “contrary to compelling inferences”.

(Emphasis added.)

126    In Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 (French CJ, Bell, Keane, Nettle and Gordon JJ), the High Court described the task of an appeal court as follows (at 686-687 [43]):

A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.

127    Findings of fact that are based, in part, upon a trial judge’s impressions of a witness or the credibility of his or her evidence are not beyond the reach of correction on appeal: Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ). Nor are factual conclusions that were reached by inference. In Lee v Lee (2019) 266 CLR 129, 148-149 [55] (Bell, Gageler, Nettle and Edelman JJ), it was said that:

Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.

128    If a trial judge’s finding “…depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh JJ). In this court, it has been said that such findings are “nearly invulnerable”: Italiano v Barbaro (1993) 40 FCR 303, 326 (Neaves, Burchett and Whitlam JJ, Black and Beazley JJ agreeing in the result).

129    Mr Reiche submits that it was not open to the trial judge to reach the conclusions that he reached about the beliefs or suspicions of the members of the Neometals board; particularly not given what he nominates as concessions that were made by Mr Reed and Mr Ritchie. That being so, he maintains that the primary judge was wrong to accept that Neometals had discharged its onus under s 1317AD(2B)(b) of the Corps Act.

130    It is unnecessary here to rehearse the “concessions” upon which Mr Reiche relies. Each concerned acknowledgments that Mr Reiche was, to put it politely, somebody who frequently raised issues. Each such acknowledgement was the subject of submission before the primary judge and his Honour was astute to address each of them in his reasons.

131    Mr Reiche submits that the concessions were such that Neometals could not discharge the evidential onus that s 1317AD(2B)(b) of the Corps Act cast upon it. That being so, he says, it was not open to the primary judge to find anything other than that, when it subjected him to detrimental conduct, it did so because or for reasons that included that it believed or suspected that he had made or might make disclosures that qualified for protection under pt 9.4AAA of the Corps Act.

132    As is evident from the summary of the primary judge’s reasoning path plotted earlier in these reasons, it is simply not the case that the evidence was so one-sided. It may be accepted that some within Neometals might, by relevant times, have grown weary of what they perceived to be Mr Reiche’s propensity to agitate and reagitate issues that were of interest or importance to him. His Honour was alive to that possibility and to the prospect that it might reflect Neometals’ possession of a relevant belief or suspicion, or the reason (or part of the reason) for which it visited detrimental conduct. Those prospects were the subject of reasoned conclusions (specifically, Primary Judgment [494], [498], [499]); and those conclusions were at least partly a product of his Honour’s wider and more detailed assessment of the witnesses who gave evidence.

133    The most that might be said of the evidential landscape against which the primary judge’s factual findings were made is that alternative conclusions might equally have been available, especially had his Honour been minded to treat some of the witness evidence with greater concern than he was. To be clear (and with respect), all of his Honour’s findings are compelling and we do not regard any as susceptible to doubt on appeal; but even were it otherwise, such doubt as there might be would fall well short of the level that would need to be established to displace the importance of appellate deference long recognised by authority.

134    Appeal grounds 14 and 15 should not succeed.

Disposition

135    None of Mr Reiche’s appeal grounds are made good. The second further amended notice of appeal should be dismissed.

136    The respondent makes no submission about costs, presumably because s 1317AH(2) of the Corps Act precludes (or likely precludes) the court from making an order in that regard. If we are wrong about that and it is necessary to hear from the parties on the question of costs, the respondent can make an application in the usual way.

Associate:

Dated:    4 May 2026