FEDERAL COURT OF AUSTRALIA

Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia (No 3) [2024] FCA 233

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    Subject to order 3 below, the applicants are to pay the respondent’s costs of the proceeding as agreed or assessed.

3.    If any party wishes to seek a different order as to costs:

(a)    that party is to file written submissions of no more than five pages in support of the order that it seeks, together with any evidence on which it wishes to rely, by 28 March 2024;

(b)    the other party is to file written submissions in response of no more than five pages, together with any evidence on which it wishes to rely, by 11 April 2024; and

(c)    the question of costs will be dealt with on the papers unless it appears that an oral hearing is necessary.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The second applicant (Mr Tredrea) is a former Australian Football League (AFL) player who has achieved a measure of fame, particularly in South Australia. He retired from playing football in 2010. Since around 2005 he has been providing various services to the respondent (Channel 9), latterly (and relevantly) as a sports presenter and reporter. Channel 9 is a company that provides news and entertainment broadcasting services primarily in South Australia. It is affiliated with similar entities operating in other parts of Australia and subject to a significant degree of management control through what is referred to as the Channel 9 group (often referred to in internal documents as Nine).

2    Until 2018 Mr Tredrea had a direct employment relationship with Channel 9. In 2018, at his initiative, a fresh arrangement was arrived at by which Mr Tredrea’s services were provided to Channel 9 through the first applicant (Tredders Investments), a corporate entity that he controlled at all times relevant to this proceeding. The arrangement was embodied in a written contract dated 15 November 2018 and expressed to be for a term of two years commencing on 1 December 2018. The arrangement was renegotiated in 2020, leading to a second written contract dated 31 August 2020 (the Services Agreement). Pursuant to that Agreement, Mr Tredrea performed the role of sports presenter, appearing on weeknight television news bulletins, among other duties. The Services Agreement was expressed to have effect for a term of two years, commencing on 1 December 2020 and continuing until 30 November 2022.

3    The Services Agreement was terminated by Channel 9 on 4 January 2022 in circumstances which were, briefly, as follows.

(a)    Late in 2021 the Channel 9 group developed and implemented a national corporate policy which was promulgated to all staff including Mr Tredrea on 8 November 2023 and described as the “Condition of Entry Policy”. Its effect was, from 1 December 2021, to limit access to Channel 9 premises to persons who were fully vaccinated against COVID-19 or who had a recognised exemption from vaccination. Proof of vaccination status, or medical exemption, was to be provided through an online portal.

(b)    In the weeks leading up to 1 December Mr Tredrea stated in a number of meetings and emails that he was not vaccinated and was investigating obtaining a medical exemption. On 30 November, he sent an email expressing, among other things, confusion about what kind of medical exemption was required, concern about the impacts of Therapeutic Goods Administration (TGA) approved vaccines on his health and doubt about their effectiveness at reducing transmission or severity of symptoms.

(c)    After the news bulletin on 30 November, Mr Tredrea was advised not to attend for work the next day and was placed on a paid “relief of service period” until 4 January 2022.

(d)    On 4 January 2022 Channel 9 wrote to the applicants advising them that it had terminated the Services Agreement.

4    The applicants seek damages for breach or repudiation of the contract constituted by the Services Agreement. Alternatively, they seek an order under s 16 of the Independent Contractors Act 2006 (Cth) (the IC Act) varying the Services Agreement to the effect that, if it is terminated on the ground that Mr Tredrea failed to comply with a direction requiring him to be vaccinated, Channel 9 is liable to compensate the applicants for any loss or damage thereby occasioned.

THE SERVICES AGREEMENT

5    The Services Agreement was expressed to be between Channel 9, the Warren Tredrea Trust (of which Tredders Investments is the Trustee), defined as “the Company”, and Mr Tredrea (defined as “the Key Person”). The Trust is not a company or otherwise a legal person, but the proceeding was conducted on the basis that Tredders Investments was a party to the Services Agreement. The important provisions of the Services Agreement for present purposes were as follows.

6    As noted earlier, the agreement was for a term commencing on 1 December 2020 and ending on 30 November 2022 (cl 2.1).

7    Clause 3 of the Services Agreement was headed “Services” and included the following provisions:

3.1     The Company must ensure that the Key Person provides his services on or in connection with Programs as directed from time to time by Nine, which may include:

(a)     Sport Presenter for any or all Nine News programs, including Adelaide's afternoon news, Adelaide's 6pm news and Nine News on 5AA;

(b)     voice-overs for the programs as reasonably requested by Nine;

3.2    The Key Person must participate in all publicity and promotional appearances as required by Nine from time to time (including, but not limited to, on-air, print, radio or digital promotions and advertising, interviews, attendance at functions and launches, use of social media, and photography) associated with the Nine Network, the Group, a Program of the Group, promotion of related businesses of the Group (including without limitation STAN), or promotion of sponsors of or advertisers associated with Programs of the Group subject to clause 3.4.

3.3    The Key Person must create and use his personal digital platforms (including both online and social media platforms such as Facebook, Instagram and Twitter) for purposes connected with his duties under this agreement, subject to Nine's directions and policies.

…

3.5    The Key Person consents to the Company using his name, image, and likeness in connection with the promotion of the Programs in which the Key Person participates, every manner, form and media of exploitation of such Programs and in the general promotion of the Group.

…

3.9    The Company and the Key Person must safeguard the success, reputation and interests of the Group in the capacity in which they are retained.

3.10    The Company must ensure that the Key Person gives the whole of his time, ability, and attention in the hours reasonably required by Nine to the business and affairs of Nine and to faithfully and diligently perform such services in relation to the business and affairs of Nine as may from time to time be given to the Key Person by or at the direction of Nine.

3.11    The Key Person must comply with all reasonable directions of the Company.

3.12     The Key Person must not, by his reputation or conduct (whether while performing services under this Agreement or otherwise), bring himself into disrepute or injure or disparage the reputation of any Group Member (or any officer, employee or agent of a Group Member). If in Nine's opinion the Key Person has acted to bring himself into disrepute or to injure or disparage the reputation of any Group Member (or any officer, employee or agent of a Group Member), the Company and Key Person must comply with any directions given by Nine to them to rectify any such damage. Nine's right to issue directions in relation to such actions is in addition to Nine’s right to terminate this Agreement as a result of such actions in accordance with clause 9.

3.13    The Company and Key Person must comply with Nine’s policies and procedures, including those set out on Nine’s intranet site, in so far as they are relevant to the Company and Key Person.

8    Clause 3.13 must be read with cl 14.2(c), by which Tredders Investments and Mr Tredrea acknowledged that Channel 9 might amend its policies or procedures from time to time in its absolute discretion.

9    Clause 4 was headed “Protection of Nine’s business”. Within this section, cl 4.1 required Mr Tredrea not to work for or supply services to any other company, engage in any commercial discussions, accept any offer of employment or engage in dealings involving personal endorsement without the permission of Channel 9. Clause 4.2 required him not to have discussions with any journalists or media representatives other than as approved by Channel 9 or in the course of maintaining personal relationships.

10    Clause 4.3 made an exception from these stipulations to allow certain pre-existing commitments of Mr Tredrea to continue. One of these was an arrangement with a local radio station (Radio 5AA) in which Mr Tredrea presented a weekly football or sports segment.

11    Clauses 4.4–4.10 made detailed provisions preventing Mr Tredrea from engaging in activities that might be facilitated or enhanced by his provision of services to Channel 9, or activities in potential competition with Channel 9, for defined periods after the expiry of the term of the Services Agreement.

12    Clause 5 of the Services Agreement provided for a monthly fee, payable to Tredders Investments (but conditional on the provision of a tax invoice). The monthly payment was to be calculated “on the basis of $192,500 per annum” (cl 5.1). The fees were exclusive of GST and Tredders Investments was authorised to invoice Channel 9 for any amounts of GST that it was liable to pay in respect of the fees.

13    Clause 9 of the Services Agreement was headed “Termination”. It included the following provisions.

9.1    Nine may terminate this Agreement at any time without notice or payment in lieu of notice if:

(a)    the Company or the Key Person disobeys a lawful direction;

(b)    the Key Person is involved in serious misconduct, including, without limitation;

(i)    wilful, or deliberate, behaviour by the Key Person that is inconsistent with the continuation of this Agreement;

(ii)     conduct that causes imminent, or serious, risk to the health or safety of a person;

(iii)    in the course of the services under this Agreement, engaging in theft, fraud or assault;

(iv)     being under the influence of alcohol or any illegal substance at work;

   (v)     refusing to carry out a lawful and reasonable instruction;

(vi)    knowingly, recklessly or negligently misleading or deceiving the viewing audience of the television business conducted by Nine;

(c)    the Company or the Key Person breaches any material provision of this Agreement including under clauses 3, 4 or 7;

(d)    the Key Person dies;

(e)    the Key Person becomes unable to pay his debts as they become due;

(f)    the Key Person or the Company fails to observe or perform any of the duties or obligations imposed under this Agreement and does not correct the failure within a reasonable period of being requested in writing by Nine to do so;

(g)    the Key Person is charged or found guilty by a Court of a criminal offence;

(h)    the Key Person has engaged in any conduct which, in Nine’s opinion, could cause material damage to the profitability, viability, reputation or business interests of any Group Member;

(i)    an application (other than a frivolous or vexatious application) or an order is made for the winding-up or dissolution of the Company or a resolution is passed, or a meeting is convened for the purpose of considering a resolution, for winding-up of the Company or for placing the Company under involuntary administration;

(j)    a receiver or receiver and manager, official manager, trustee or similar officer is appointed to all or any part of the assets or undertaking of the Company; or

(k)    in the opinion of Nine, the public image or reputation of the Key Person, Nine, any part of Nine’s business, any other Group Member or any part of any other Group Member’s business has been damaged or impaired as a result of any act or omission of the Key Person (whether while performing duties under this agreement or otherwise).

14    Clauses 9.2 and 9.3 authorised Channel 9 to terminate the Services Agreement on one month’s notice in writing in defined circumstances. They were not invoked in the present case, but have some relevance to the issue of damages if that issue is reached. They were as follows:

9.2     Nine may terminate this Agreement at any time by giving one month’s notice in writing to the Company and the Key Person or payment in lieu of such notice if:

(a)     the Key Person is incapacitated by illness, injury or otherwise prevented from performing the Key Person’s duties under this Agreement for a period totalling in aggregate more than twelve weeks in any 12 month period; or

(b)     the Key Person is advised by an independent medical officer that the Key Person’s health has deteriorated to such a degree that it is advisable for the Key Person to leave Nine.

9.3     Nine may terminate this agreement on 1 month’s notice in writing, if Nine made reasonable requests of the Company and Key Person in relation to the provision of Other Services with NWS News and considers that the Company and the Key Person have not provided Other Services:

(a)     to the level specified in Schedule 1 in the previous 12 months; or

(b)     to the level reasonably requested by Nine if Nine has not requested Other Services to the level specified in Schedule 1.

15    Clause 12.2 required Tredders Investments to maintain workers compensation insurance and cl 12.3 required it to satisfy all salary, annual and sick leave and superannuation entitlements of Mr Tredrea. Clause 12.4 required it to pay any payroll tax and other taxes, duties or levies payable in respect of Mr Tredrea’s employment. Clause 12.6 expressed the intention that the relationship between Channel 9 and Tredders Investments was to be an “independent contracting relationship” and not to create an employment relationship between Channel 9 and Mr Tredrea.

16    Finally, cl 14.4 provided as follows.

Limitation on Damages

Any damages to which the Company and the Key Person may be entitled arising out of a breach of any express or implied term of this Agreement:

(a)    are not available for personal illness or injury or non-pecuniary loss (including, but not limited to hurt, humiliation, distress and disappointment); and

(b)    are limited to the damage which the innocent party would have suffered if the party in breach had, instead of breaching the Agreement, lawfully terminated the Agreement at the earliest possible opportunity; and

(c)    will not include any consequential damage, including but not limited to any direct or indirect loss of opportunity to earn remuneration through work in the media industry or in a position substantially similar to the position occupied by the Key Person during the term.

THE PLEADINGS

17    Channel 9 said that it was holding the applicants strictly to their pleaded case. Some attention to the terms of the pleadings is therefore needed.

The Statement of Claim

18    After various preliminary matters that do not need to be mentioned here, the Statement of Claim (SOC) pleads various terms of the Services Agreement and that the Services Agreement was a services contract within the meaning of s 5 of the IC Act.

19    The SOC then pleads various matters in relation to COVID-19 (at [9]–[10]). These are:

(a)    the nature of the disease (a respiratory disease caused by the virus known as SARS-CoV-2 (coronavirus)) and its initial identification in Australia in January 2020; and

(b)    the provisional approval under the Therapeutic Goods Act 1989 (Cth) (the TG Act), as at August 2021, of three vaccines in relation to COVID-19 (referred to as the Pfizer vaccine, the AstraZeneca vaccine and the Moderna vaccine, and referred to together in the pleadings as the Provisionally Approved Vaccines).

20    The circumstances leading to the termination of the Services Agreement are pleaded as follows (at [11]–[15]) (excluding particulars):

11.     On or about 15 October 2021, [Channel 9] gave a direction (“the Direction”) to the applicants that, in order for the second applicant to attend a site or location where work is being performed, or a function is being held, in connection with the respondent from 1 December 2021, the second applicant had to provide evidence to the respondent that he was “fully vaccinated against COVID-19”, being where an “Australian Government Digital COVID-19 Certificate confirms that [the second applicant] was fully vaccinated”.

12.     A person could obtain an “Australian Government Digital COVID-19 Certificate” within the meaning of the Direction only if they were vaccinated with two doses of the Provisionally Approved Vaccines.

13.     On 1 December 2021 the respondent extended the time for the second applicant to comply with the Direction to 4 January 2022.

14.     The second applicant did not comply with the Direction.

15.     On 4 January 2022, the respondent terminated the Services Agreement with Immediate effect.

21    Under the heading “No grounds to terminate”, the SOC alleges at [16] that Channel 9 did not have “any grounds or basis to terminate the Services Agreement”, under cl 9.1 or at all. Paragraphs [17]–[19] give content to this allegation although they are expressed not to limit it.

22    SOC [17] pleads that Mr Tredrea did not disobey a lawful direction within the meaning of cl 9.1(a). It alleges that “[a] lawful direction for the purposes of that clause is a reasonable one”. It then alleges that the direction given on or about 15 October 2021 was not reasonable. The reasons why that direction is said not to be reasonable are lengthy but should be set out in full. They are as follows:

17.1     Since January 2020, in addition to the original strain of SARS-Cov-2, there have been several variants of SARS-CoV-2 which have been designated as variants of concern by the World Health Organisation and detected in Australia. One such variant of concern was the Delta variant, which was first detected in Australia in about May 2021. The Delta variant had the same level of virulence as the original strain. As of August 2021, the Delta variant was the predominant variant of SARS-CoV-2 in Australia. A further variant of concern was the Omicron variant, which was first detected in Australia in about December 2021. The Omicron variant was more contagious, but significantly less virulent, than the Delta variant. As of January 2022, the Omicron variant was the predominant variant of SARS-CoV-2 in Australia.

17.2     A person who has received vaccination with one of the Provisionally Approved Vaccines and who subsequently became infected with either the Delta or Omicron variants had a similar risk of transmitting the virus to another person as an unvaccinated infected person had of transmitting the virus.

17.3     In any event:

17 .3.1     As at November 2021, only a limited number of employees or contractors of the respondent (either generally, or in the alternative, based in South Australia) had not been vaccinated with at least one dose of the Provisionally Approved Vaccines. Most employees had undergone vaccination with at least one dose and, and, if he or she had not had a second dose, intended to do so.

17.3.2     There was a very low degree of risk of serious illness or mortality arising from the Delta variant or the Omicron variant to vaccinated persons (especially when compared to the original strain).

17.3.3     Similarly, there was a similarly low (albeit comparatively higher) degree of risk of serious illness or mortality arising from the Delta variant or the Omicron variant to unvaccinated persons.

17.3.4     Further particulars of the numbers of vaccinated and unvaccinated employees and contractors of the respondent at various points in time will be provided after discovery.

17.4     A person who received vaccination with at least one dose of the AstraZeneca     vaccine had an increased risk of certain medical conditions.

Particulars

17.4.1     Blood clotting; Central Venous Thrombosis; Pulmonary embolism; Cardiac embolism;

17.4.2     Guillain Barre Syndrome.

17.4.3     Transverse myelitis.

17.5     A person who received vaccination with at least one dose of the the [sic] Pfizer vaccine or the Moderna vaccine had an elevated risk of certain medical conditions.

Particulars

17.5.1     Myocarditis.

17.5.2     Pericarditis.

17.5.3     Heart arrhythmias.

17.5.4     Bell's Palsy.

17.5.5     Anaphylaxis.

17.6     The Pfizer vaccine and the Moderna vaccine are mRNA (rather than protein-based) vaccines and the Astra Zeneca is an adenovirus vector vaccine whereby all these vaccines instruct the cells of the body to produce the SARS-CoV-2 spike protein, to stimulate the body to produce antibodies that bind to and block the virus allowing it to be cleared from the body, in circumstances where:

17.6.1     The effect of the re-programming of cells in the body by these vaccines is not known; and

17.6.2     The Phase 3 human trials of these vaccine have still not been completed; and

17.6.3     The mRNA in the provisionally approved vaccines has been modified such it [sic] is much longer-lasting in the body than normal mRNA.

17.6.4     The long-term safety of the provisionally approved vaccines is still not known; and

17.6.5     The mRNA vaccines contain polyethylene glycol, which is an artificial substance known to cause allergic reactions in humans.

17.7     There are, and were at all material times, other measures and control mechanisms in the workplace that were equally effective as, if not more effective than, vaccination by one of the Provisionally Approved Vaccines in reducing the risk of transmitting the Delta variant or the Omicron variant to a site or location where work is being performed, or a function is being held, in connection with the respondent, especially given the limited number of employees who have not been vaccinated, and that did have the risks arising above.

Particulars

17.7.1     Requiring all employees, or all unvaccinated employees, to undertake a rapid antigen test (RAT) and have a negative result prior to performing work duties.

17.7.2     Requiring all unvaccinated employees to wear appropriate face masks when performing work duties.

17.7.3     Ascertaining whether any unvaccinated employee has antibodies to SARS-CoV2 and/or is otherwise immune.

17.7.4     Ascertaining whether any vaccinated employee does not have antibodies to SARS-CoV2 and/or is otherwise susceptible.

17.7.5     Ensuring that employees that exhibited symptoms of a respiratory tract infection were told to leave work and not return until they produced a negative RAT or PCR test.

17.7.6     Ensuring that all employees were made aware of the need to maintain appropriate social distance from others.

17.7.7     Ensuring that all employees exercised good hygiene, including hand washing, regular cleaning of communally touched surfaces with disinfectants and wearing gloves where appropriate.

17.7.8     Ensuring that employees were made aware that, if they were exhibiting any respiratory symptoms they should not come into work.

17.7.9     Ensuring that employees who exhibited respiratory symptoms while working isolated and produced a negative RAT before returning to work.

17.7.10    Reducing the time spent by employees in and about public areas.

17.7.11    Improving ventilation in the workplace.

17.7.12    Providing suitable hygiene stations at any place of employment.

17.7.13    Periodically checking in with employees to determine whether they were unwell.

23    It will be observed that SOC [17] pleads, as objective facts constituting reasons why the direction was not reasonable, matters concerning the behaviour of the coronavirus, the risks and benefits of vaccination with the Provisionally Approved Vaccines and the availability and efficacy of other measures. It does not plead that Channel 9 knew or ought to have known of these matters at any particular time.

24    SOC [18]–[19] are as follows:

18.     Without limiting the plea in paragraph 16 above, the second applicant was not involved in serious misconduct by refusing to carry out a lawful and reasonable instruction within the meaning of clause 9.1(b)(v) of the Services Agreement. The applicants repeat the allegations in paragraph 17 above.

19.     Without limiting the plea in paragraph 16 above, the second applicant did not undertake conduct which could cause material damage to the reputation and business interests of the respondent within the meaning of clause 9.1(h) of the Services Agreement.

25    It is then alleged that, by reason of Channel 9’s breach of the Services Agreement, it repudiated the Agreement, and that the applicants accepted the repudiation (at [20]–[21]).

26    SOC [22]–[23] set out the claim under the IC Act.

(a)    The central allegation is that, if it was otherwise lawful for Channel 9 to give the direction, it was unfair or harsh for the Services Agreement to have the potential for such a direction to be given in relation to COVID-19. The matters pleaded at [17] are relied on.

(b)    The order sought under s 16 of the IC Act is an order varying the Services Agreement to the effect that, if Channel 9 takes action to terminate the Services Agreement on the ground of a failure to comply with a direction to be vaccinated. Channel 9 is to compensate the applicants for any loss or damage occasioned thereby.

27    SOC [24] identifies the loss or damage alleged to have been suffered, as follows (omitting the particulars):

24.1     loss of the sum due and payable under the Services Agreement by the respondent to the first applicant for the period 4 January 2022 to 30 November 2022, being $176,458.32 plus GST; and

24.2    loss of an opportunity to renew with the respondent an agreement to provide the services provided under the Services Agreement for a further term of up to a further 30 years.

The Defence

28    The following features of Channel 9’s Defence should be noted.

(a)    Channel 9 says that it does not know and therefore cannot admit SOC [9] (the nature of COVID-19) but admits SOC [10] (the provisional approval of the three vaccines as at August 2021).

(b)    SOC [11] and [12] are denied and alternative accounts are given. The facts concerning the giving of a direction by Channel 9 and Mr Tredrea’s non-compliance with it will be considered below.

(c)    SOC [13]–[15] are substantially admitted.

(d)    SOC [16] is denied. Channel 9 says that it had valid grounds to terminate the Services Agreement under cl 9.1 thereof, and by reason that the applicants’ conduct amounted to a repudiatory breach. The basis for this assertion is, in outline:

(i)    the applicants had agreed to comply with all reasonable directions (cl 9.1(a)), and the directions given by Channel 9 were lawful directions taking into account Channel 9’s obligations under work health and safety legislation;

(ii)    the applicants engaged in serious misconduct, within the meaning of cl 9.1(b)(v) of the Services Agreement, both by refusing to comply with reasonable directions and by reason of Mr Tredrea having expressed an opinion in relation to vaccination during one of his radio broadcasts on 5AA;

(iii)    the applicants breached material provisions of the Services Agreement (cl 9.1(c)) by reason of Mr Tredrea having failed to comply with reasonable directions (as referred to above) and by failing to comply with policies or procedures as required by cl 3.13 (the relevant policy or procedure being the Condition of Entry Policy);

(iv)    the applicants failed to observe or perform duties or obligations imposed under the Services Agreement and did not correct that failure after being requested to do so (cl 9.1(f)), by reason of Mr Tredrea’s non-compliance with the direction;

(v)    the applicants engaged in conduct which, in Channel 9’s opinion, could cause material damage to the profitability, viability, reputation or business interests of Channel 9 (cl 9.1(h) and (k)) as a result of:

(A)    Mr Tredrea’s non-compliance with the direction;

(B)    Mr Tredrea’s comments on Radio 5AA; and

(C)    not being able to send Mr Tredrea to briefings at sporting clubs as a result of his unvaccinated status; and

(vi)    also by reason of the things mentioned in (v) above, the applicants engaged in conduct which, in Channel 9’s opinion, could cause material damage to the public image or reputation of Mr Tredrea (cl 9.1(k)).

(e)    SOC [17] is denied, apart from [17.3.1]. In further response, Channel 9 pleads as follows ([17.1]–[17.6]):

17.1     [Channel 9] formed a view that conformed at all relevant times with the Australian Government recommendations and public statements of the South Australian Chief Public Health Officer in relation to vaccination;

17.2     [Channel 9] did not otherwise have independent knowledge of or an independent opinion as to the rate of transmission of COVID-19 and the comparative efficacy of various measures in reducing transmission of COVID-19;

17.3    to the extent that paragraph 17.1 refers to matters post-dating any of the Directions, those matters are irrelevant;

17.4     at the time when [Channel 9] gave the Directions, Australian Government recommendations and public statements of the South Australian Chief Public Health Officer were to the effect that vaccination was an effective measure to reduce the risk of transmitting COVID-19 and that this reflected the prevailing medical opinion;

17.5     further and in any event, the Directions were a reasonable response to an uncertain health risk;

17.6     [Channel 9] has implemented other reasonably practicable control measures to reduce the risk of transmitting COVID-19 in its workplace, both prior to and after the Directions, including:

17.6.1    ensuring that staff and contractors that exhibited symptoms of a respiratory tract infection were told to leave work and not return until they produced a negative RAT or PCR test;

17.6.2    ensuring that staff and contractors were made aware of the need to maintain appropriate social distancing from others;

17.6.3    ensuring that it advised staff and contractors to wear masks where they could not socially distance from others; and

17.6.4    ensuring that it advised staff and contractors to exercise good hygiene, including hand washing and regular cleaning of communally touched surface [sic] with disinfectants;

(f)    SOC [18]–[21] are denied.

(g)    As to the IC Act, Channel 9 pleads that:

(i)    the terms of the Services Agreement requiring compliance with lawful and reasonable directions were not unfair or harsh within the meaning of s 12 of the IC Act;

(ii)    the claim as pleaded impermissibly addresses the question of harshness or unfairness in the events that have happened since the Services Agreement was formed; and

(iii)    the claim is therefore vague, embarrassing, untenable and liable to be struck out.

29    The Defence also takes issue with the applicants’ pleaded case on loss or damage.

(a)    SOC [24.1], which claims the remaining payments due under the Services Agreement, is simply denied.

(b)    As to SOC [24.2], the Defence:

(i)    relies on cl 14.4(b) of the Services Agreement to contend that any such loss is unrecoverable;

(ii)    observes that Channel 9 was under no compulsion to renew the Services Agreement;

(iii)    contends that, by reason of the applicants’ conduct described above, Channel 9 would not have renewed the Services Agreement had it been unable validly to terminate it; and

(iv)    pleads that there was no legitimate expectation of renewal of the Services Agreement and Mr Tredrea had been counselled in relation to performance issues.

CHANNEL 9’S POWER TO TERMINATE THE SERVICES AGREEMENT

30    It is not in doubt that Channel 9 purported to terminate the Services Agreement. This was done by way of a letter signed by Mr Jeremy Pudney, News Director of Nine News Adelaide, addressed to both of the applicants and dated 4 January 2022 (the termination letter). The termination letter explained the reasons for the decision (which was made by Mr Pudney after consulting other officers of Channel 9) as follows:

(a)    The Condition of Entry Policy required, from 1 December 2021, that any employee or contractor who attended Channel 9 premises or worked in the field must be “fully vaccinated against COVID-19 with evidence having been provided to Nine”. The policy provided that Channel 9 would endeavour to make necessary adjustments where an employee or contractor had a “valid Medical Exemption”.

(b)    Both applicants were bound by the Condition of Entry Policy.

(c)    Mr Tredrea’s role required him to attend Channel 9’s premises and to work in the field, where he interacted with other Channel 9 personnel and members of the public. The Condition of Entry Policy therefore required him, by 1 December 2021, to provide Channel 9 with evidence that he was fully vaccinated against COVID-19 or had a valid medical exemption.

(d)    Mr Tredrea had also been directed by Mr Pudney to provide evidence of these matters.

(e)    On 3 December 2021 Channel 9 had given Mr Tredrea additional time to provide the evidence required by the Condition of Entry Policy. That time expired on 4 January 2022. He had not provided that evidence.

(f)    In these circumstances Channel 9 had decided to terminate the Services Agreement with immediate effect for “reasons including that”:

•    you have disobeyed multiple lawful directions to provide the Required Evidence (Services Agreement cl 9.1(a));

•    Mr Tredrea has engaged in serious misconduct, being conduct by which you refused to carry out a lawful and reasonable instruction (Services Agreement cl 9.1(b)(v));

•    Mr Tredrea has engaged in conduct which, in Nine’s opinion, could cause material damage to the reputation and business interests of Nine (Services Agreement cl 9.1(h)); and

•    in the opinion of Nine, Mr Tredrea’s public image and reputation has been damaged and impaired as a result of Mr Tredrea’s conduct (Services Agreement cl 9.1(k)).

31    The case turns on whether Channel 9 was entitled, pursuant to the Services Agreement, to terminate that Agreement in the circumstances that existed in January 2022. If Channel 9 was entitled to take that step, the termination brought the Services Agreement to an end according to its terms; no relief lies under the law of contract and only the claim under the IC Act remains. If it was not so entitled, the purported termination was a breach of the Services Agreement amounting to repudiation, entitling the applicants to terminate and to remedies including damages.

32    Whether circumstances existed that entitled Channel 9 to terminate the Services Agreement is to be determined objectively, on the evidence before the Court. It does not depend on the reasons expressed in the termination letter (other than to the extent that the letter evidences an “opinion” of Channel 9 for the purposes of cl 9.1(h) or (k)). In addition to the provisions of the Services Agreement cited in the termination letter, Channel 9’s Defence relies on cl 9.1(c) and (f). It is convenient to consider each potentially relevant provision of cl 9.1 in turn.

Onus of proof

33    Before doing so, it is useful to say something concerning the onus of proof.

34    The uncontroversial starting point is that, in a civil suit (absent any statutory allocation of onus), the onus lies on the plaintiff or applicant to prove all of the facts which are essential to its cause of action or in some other way an essential part of its case. It is also uncontroversial that the defendant or respondent bears the onus of proving any facts that, rather than negativing some aspect of the plaintiff’s cause of action, constitute a defence to it. The principle is stated in, for example, Currie v Dempsey (1967) 69 SR (NSW) 116 at 126 (Walsh JA) (Currie). In identifying where the onus lay in Vines v Djordjevitch (1955) 91 CLR 512 (Vines) (a case involving statutory rights), Dixon CJ at 519 distinguished between “the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability” on the one hand, and “special grounds of excuse, justification or exculpation depending upon new or additional facts” on the other.

35    The applicants’ argument proceeds by the following steps.

(a)    To establish their cause of action in contract, they must prove that there was a termination of the contract.

(b)    Termination of the contract, prima facie, constitutes a breach amounting to repudiation.

(c)    If termination is established (and in the present case termination is admitted), it is up to the respondent to prove that the termination was justified, and therefore that there was no breach of contract.

36    It is useful to recall some basic aspects of the law of contract and its terminology.

(a)    A party may become entitled to terminate both parties’ obligations to perform a contract on the grounds that the other party has breached or repudiated it. In addition, the contract itself may contain provision for a party to terminate it.

(b)    “Repudiation” commonly refers to showing an absence of readiness, willingness or ability to perform the contract at the time when performance is required. A closely related concept is anticipatory breach, where, at a time before performance is required, the promisor shows an absence of readiness, willingness or ability to perform when the time for performance arises.

(c)    In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 at [44] (Sanpine) Gleeson, CJ, Gummow, Heydon and Crennan JJ observed that “repudiation” can be used in different senses. One sense of the term involves any breach of the contract that justifies termination. That sense need not be explored for present purposes. The meaning of “repudiation” that is relevant here is evincing an unreadiness, unwillingness or inability of the promisor to perform its obligations. This, as their Honours said, may be termed “renunciation”.

The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it.

(d)    Repudiation does not bring the rights and obligations under the contract to an end. That happens, and the promisee may sue for damages, when the promisee decides to terminate the contract by accepting the repudiation (see, eg, JD Heydon, Heydon on Contract (Thomson Reuters, 2019) at [24.310]).

37    Reduced to its essentials, the applicants’ case is that Channel 9 “repudiated” the Services Agreement (SOC [20]) and that the applicants accepted the repudiation (SOC [21]). In conventional parlance, that acceptance terminated the Services Agreement. However, it is alleged earlier at SOC [15] that Channel 9 “terminated” the Agreement. “Terminate” usually means effectively bringing something to an end, and this may be why Channel 9 was content to admit the allegation. In context, however, the applicants must be taken to be alleging that Channel 9 purported to terminate the Services Agreement; and this, because there were no grounds for termination pursuant to the relevant clause, (SOC [16]), constitutes the “breach” which amounts to “repudiation” (SOC [20]). In the applicants’ pleaded case, therefore, there is a purported termination by Channel 9 (wrongly invoking an express contractual power to terminate), followed by a lawful termination by the applicants. Prima facie at least, the ineffectiveness of Channel 9’s purported termination is an essential aspect of the applicants’ case and thus something that they must prove.

38    It has been observed that “[a] very common form of repudiation is an invalid termination of the contract” (Heydon at [24.380]). That can be accepted, although the only authority cited (Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444 at 453 (Barwick CJ) (Ogle)) is one in which the defendant contended that a purported termination by the plaintiff was itself a repudiation because it was not properly founded. In the present case, by its termination letter on 4 January 2022 Channel 9 made clear that it no longer considered itself bound by the Services Agreement. If Channel 9 did not have power to terminate under the terms of the Agreement, its attempt to do so amounted (using the terminology of Sanpine) to renunciation.

Authorities

39    Reference was made in argument to the judgment at first instance in Sanpine: Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 (Sanpine NSWSC). That judgment involved the determination of a preliminary question concerning whether a joint venture agreement remained on foot. After a long history of problems and disagreements, the agreement was purportedly terminated by the external administrator appointed to manage the affairs of the first defendant. The administrator wrote a letter to the plaintiff stating, as the first defendant’s position, that the plaintiff had repudiated the agreement by breaching it in various ways and the first defendant accepted that repudiation (at [164]). The plaintiff sought a declaration that the agreement was still on foot; orders restraining the defendants from entering into any agreement with other parties; and damages.

40    On the hearing of the preliminary question before Campbell J, the plaintiff argued that the defendants bore the onus of proving that the agreement had been effectively terminated. The defendants argued to the contrary. His Honour upheld the plaintiff’s contention (at [185]). This was in circumstances where the plaintiff’s case was that the contract was still in effect, and the relief it sought was to vindicate that position. All that the plaintiff needed to prove, in his Honour’s view, was that the contract had been entered into and its terms had not brought it to an end through the effluxion of time (at [181]).

41    His Honour had earlier referred to cases holding that a party who alleges that a contract has been terminated must justify the termination (at [172]–[175]) and to the principle (expressed in Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657, 659; 8 ANZ Insurance Cases 61-257, at 75,876-75,877) that “a party who seeks relief has the burden of satisfying the Court of facts which (in the absence of proof of other facts) would justify the grant of that relief”.

42    In the present case, there is no issue between the parties as to whether their contract has been terminated. The applicants expressly allege that the Services Agreement was terminated by them, and rely on conduct of Channel 9 as the basis for their entitlement to do so. Each of those steps needs to be made out in order to establish entitlement to the relief—damages for breach of contract—that is sought. Simply proving that the Services Agreement had been (purportedly) “terminated” by Channel 9 would not, in the absence of proof of other facts, establish that the purported termination involved a breach entitling the applicants to terminate or otherwise sounding in damages. A necessary element of the applicants’ claim for relief is that Channel 9 did not succeed in bringing the Services Agreement to an end in accordance with its terms; that is, that Channel 9 did not have a valid ground for termination pursuant to cl 9.1. As Campbell J observed in Sanpine NSWSC at [171]:

In a civil suit the onus lies on the plaintiff to prove all facts which are an essential part of its cause of action, or in some other way an essential part of its case. Thus, in a civil suit in which it is part of the cause of action on which the plaintiff sues, or in some other way an essential part of the plaintiff’s case, to establish a negative proposition, the onus lies on the plaintiff of proving that proposition.

See also White v Johnston [2015] NSWCA 18; 87 NSWLR 779 at [108] (Leeming JA).

43    Another way of articulating the difference between the present case and Sanpine is that, whereas in that case the plaintiff alleged the existence of a contractual relationship (and it was up to the defendants, if they relied on the contract having come to an end by termination, to prove it), here the applicants allege that the contractual relationship has come to an end in a particular way (repudiation followed by acceptance). In order to prove that Channel 9’s purported termination amounted to repudiation, they must show that Channel 9 did not have power to terminate.

44    The applicants also referred to various authorities in respect of contracts of employment where it has been held that, if wrongful dismissal is alleged, the employer bears the onus of proving that dismissal was justified. Examples are Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 83 (Dixon and McTiernan JJ) (Blyth Chemicals); North v Television Corporation Ltd (1976) 11 ALR 599 at 603 (Smithers and Evatt JJ) (North); and Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83–84 (Hungerford J) (Gartrell White).

45    In Blyth Chemicals the proposition was simply stated without explanation. In North it followed from the construction of the relevant award, which created a duty not to terminate employment without notice subject to an “exception” in the case of misconduct. Their Honours applied the following statement by Dixon J (as his Honour then was) in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 at 643 (Jacobsen) (a statement which aligns closely with what his Honour said later in Vines, above):

For the burden of proof is a legal consequence of the nature of the qualification placed by the words ‘without his own default or wilful act’ upon the general conditions of liability stated in the clause. If these words are but part of the legislative attempt to define the conditions upon which the worker’s right to compensation arises, then like all other ingredients or elements in a cause of action or title to claim, proof of the fulfillment of the conditions they describe must lie with the claimant. But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer.

46    Gartrell White was a decision of the New South Wales Industrial Commission. The relevant passage refers to circumstances where an allegation of misconduct is “raised as a defence or as justification for a particular course of action by an employer, such as in summarily dismissing an employee”. Reference was also made to Jacobsen, and Hungerford J went on to explain that (at 84):

The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it.

47    Accordingly, to the extent that this principle is explained in the employment law cases to which reference has been made, it arises from the employer’s right to dismiss an employee summarily for misconduct being a distinct exception from or qualification on the employee’s right to a period of notice. Thus, misconduct is a “defence” in the sense referred to in Currie; something which avoids liability even if the elements of the cause of action are made out. In the present case, as I have endeavoured to explain above, there is no basis for an award of damages unless the purported termination of the Services Agreement—which constitutes the entirety of the alleged breach about which complaint is made—was unauthorised. The existence of authority to terminate under cl 9.1 thus amounts to a negation of an element of the claim, not an exception or qualification. The employment law cases do not assist the applicants.

48    It is appropriate to note that Channel 9 does not rely on authority suggesting that a purported termination which is based on a mistaken but bona fide understanding of the legal position does not constitute repudiation (see the cases cited in Heydon at [24.390]).

Commentary

49    There are also statements by commentators which at first blush appear to suggest that the party alleged to have repudiated a contract bears an onus of proof.

50    Heydon, at [24.290], asserts that “[the] onus of proving that the promisor was ready, willing and able rests on the promisor”. Whether that is universally correct is not clear; the authority cited (Foran v Wight (1989) 168 CLR 385 at 393 (Mason CJ)) was a case where the party alleged to have repudiated the contract was the plaintiff. The older authority cited by Mason CJ in that case affirms that, in principle, the plaintiff in any contract case needs to be ready to prove (if it is put in issue) that it was ready, willing and able to perform the contract. In any event, there is no issue in the present case as to whether Channel 9 was ready, willing and able to perform its obligations under the Services Agreement. The termination letter announced that it was not willing to perform, and it has not sought to resile from that position. The contested issues lie elsewhere.

51    Meanwhile, JW Carter, Carter’s Breach of Contract (2018, 2nd ed, LexisNexis Butterworths) at [8-25] asserts:

If the promisee breaches the contract prior to the promisor’s alleged wrongful termination, what appears to be a wrongful termination may be an effective termination. In other words, even though the promisor did not purport to rely on the promisee’s breach its conduct may be characterised as a valid election to terminate. Of course, the burden is on the promisor to show that it was entitled to terminate at the time of the alleged wrongful termination. The ordinary rules apply. Therefore, a promisor must establish a sufficient prior breach or a repudiation. In relation to the latter, merely putting the readiness and willingness of the promisee in issue is insufficient: the promisor must prove an entitlement to terminate.

52    The only authority cited for the proposition that the promisor must show that it was entitled to terminate is paragraph [3-05] of the same work, which says:

Article 3.3 — onus of proving right to terminate.

The onus of proving the existence of a right to terminate the performance of a contract rests on the party so alleging.

The question of who bears the onus of proving the existence of a right to terminate the performance of a contract is strictly one of construction. However, the default rule is that the onus rests with the promisee, as the party who alleges an entitlement to terminate the performance of the contract.

In practice, the default rule is almost invariably applicable.

53    In this context, the passage quoted above from [8-25] appears to deal with quite a specific situation: where a contractual termination, alleged to be wrongful, is potentially justified by an earlier breach or repudiation by the party now alleging wrongfulness.

54    In the present case both the applicants and Channel 9 can be said to be alleging an entitlement to terminate the Services Agreement. However, it is the applicants (as “promisees”) who allege that entitlement as the foundation of a claim for relief and who therefore must prove their entitlement. That involves proving that Channel 9 had repudiated or otherwise breached the Services Agreement. The “default rule”, at least, therefore requires them to prove that Channel 9’s purported termination of the Services Agreement was not authorised.

Conclusions on onus

55    The onus lies on the applicants to prove that the power to terminate the Services Agreement under cl 9.1 did not arise.

56    SOC [16] is therefore not (as the applicants’ written submissions suggested) an unnecessary allegation. It is central to the case that the applicants must establish, because the foundation for their asserted entitlement to terminate (and seek damages) is not the mere occurrence of Channel 9’s purported termination but its wrongfulness.

57    It is appropriate, however, to note a further point concerning SOC [16]. It is a completely general and unparticularised allegation that Channel 9 did not have any grounds or basis to terminate the Services Agreement. SOC [17]–[19], which make more specific allegations that particular aspects of cl 9.1 were not engaged, are expressed not to limit SOC [16]. No application was made to strike out SOC [16] or to require further and better particulars in order to narrow the applicants’ case. Holding the applicants strictly to their pleaded case does not greatly assist Channel 9, in circumstances where the pleaded case in its terms encompasses any argument that might be thought of to the effect that the power to terminate in cl 9.1 did not arise. Consequently, where evidence adduced by the applicants was objected to at the hearing on the ground that it did not go to the issues raised by SOC [17], I have determined that that evidence should be admitted.

Clause 9.1(a): disobedience of a lawful direction

58    By the terms of its Defence Channel 9 relies on what it says were five directions. These were:

(a)    a direction to staff and contractors on 14 October 2021 by email, including to the applicants, to provide evidence of their vaccination status by entering their status in an online portal (the first direction) (Defence [11.3]);

(b)    advice by email on 15 October 2021 to staff and contractors, including the applicants, that from 1 December 2021 staff, contractors and visitors would be required to be fully vaccinated in order to enter any Channel 9 premises (the second direction) (Defence [11.4]);

(c)    circulation of the Condition of Entry Policy by email to staff and contractors, including the applicants, on 8 November 2021 (the third direction) (Defence [11.8]);

(d)    an email to the applicants on 15 November 2021 reiterating the direction given on 14 October (the fourth direction) (Defence [11.11]); and

(e)    a letter to the applicants dated 1 December 2021 which reiterated the advice given on 15 October and directed them to provide further information on Mr Tredrea’s vaccination status including any valid medical exemption (the fifth direction) (Defence [11.14]).

59    It is not in doubt that each of these communications occurred.

First direction

60    The email containing the first direction said, relevantly:

To ensure the safety of our people and the continuity of our business, we are asking all employees to provide evidence of their vaccination status prior to their return to the workplace (which will be at different stages depending on your location, as per our roadmap).

61    This passage was expressly directed only to “employees”, but no point was taken about this. Read literally, it was a request rather than an instruction. However, viewed in the context of the relationship between Channel 9 and its employees and contractors, I think it is properly understood as a direction to all of those persons to provide Channel 9 with evidence of their vaccination status. This direction did not extend to how this evidence was to be provided, although the email drew attention to the online portal that had been created for that purpose.

62    The email informed its recipients that Channel 9 had created a “Vaccination Status Portal” (the Portal) and explained what information it would collect. The information included confirmation of receipt of a vaccination (with the date and the brand of vaccine received). It also included:

Opportunity to state that you will not be vaccinated (if you select this, please ensure that you have had a conversation with your manager and engaged People and Culture to work through the appropriate medical exemption paperwork).

63    The direction required evidence of vaccination status to be provided by staff “prior to their return to the workplace”. There is no evidence of staff at Channel 9’s newsroom in Adelaide having been required to work from home at the time of the first direction and I infer that Mr Tredrea was therefore attending his workplace on each working day. According to its terms, therefore, the first direction required him to provide evidence of his vaccination status before he next attended work.

64    In any event, the deadline for compliance with the first direction does not need to be conclusively established. It is not in contest that Mr Tredrea did not provide Channel 9 with evidence of his vaccination status at any time up to the termination of the Services Agreement. It is also not in doubt that, in a conversation with Mr Pudney on 12 November 2021, Mr Tredrea expressed opposition both to being vaccinated against COVID-19 and to entering any information on the Portal.

65    Mr Pudney gave evidence that 17 November 2021 was the deadline for staff and contractors to provide the information called for by the direction (although it is not clear when or how that deadline was communicated). He mentioned this deadline in the discussion that he had with Mr Tredrea on 12 November. In an email on 17 November, Mr Tredrea confirmed that he had not entered his vaccination status on the Portal and said that he was concerned about his confidential medical information.

66    His evidence was that he did not agree to enter private medical information on the Portal because he was concerned about the security of the information in the wake of a cyber attack suffered by Channel 9 some months earlier. He maintained this position in cross-examination, while accepting that he did not know whether the security of any of Channel 9’s records had been compromised. He also accepted that his reticence about disclosing information arose from wanting to see his doctor before saying anything, and that he might have said words attributed to him by Mr Pudney to the effect that he had been advised to say nothing until asked. There is no suggestion that he agreed to provide the information sought by Channel 9 in any other way. I find that, while Mr Tredrea might have had some concerns about the security of information provided online, his position on 12 November was motivated by an objection to being vaccinated against COVID-19 and a desire not to communicate this position in any formal way to Channel 9. In any event he was refusing to comply, and never did comply, with the first direction.

The second direction

67    The second direction was contained in an email to all Adelaide staff sent on 15 October 2021, the day after the email containing the first direction. It said (relevantly):

In line with recent communications about Nine’s proposed COVID Vaccination Strategy, from December 1 it will be a requirement for all staff, contractors and visitors to be fully vaccinated in order to enter any of the Nine sites nationally.

Yesterday you would have received an email from ‘Nine Communications’ on 'How to let us know about your vaccination status'. To make this process as simple as possible, Nine has created a ‘Vaccination Status Portal’, which allows you to enter the details of your vaccination, or medical exemption (if applicable).

Once you enter your details, you will receive a notification that an authentication email has been sent to your leader, asking them to verify that they have sighted your vaccination certificate.

Please do not email or text a screen shot of your vaccination certificate, as we do not need to retain this medical information.

If you are still considering if vaccination is right for you, I encourage you to speak to your GP about your concerns/personal circumstances. Please reach out to your leader, People and Culture Team (peopleandculture@nine.com.au) or the Health and Safety team (safety@nine.com.au) with any further questions you may have or about how this may impact your role.

(Emphasis in original.)

68    The fourth paragraph of this extract casts further doubt on Mr Tredrea’s explanation for his unwillingness to comply with the first direction. It suggests that Channel 9 was not proposing to collect and retain any confidential medical information through the Portal.

69    The expression “direction” in cl 9.1(a) must be taken to mean an authoritative instruction. The first paragraph of the email of 15 October 2021 notified staff of a condition that was to be imposed in around six weeks’ time on entry to Channel 9 premises. That may be understood as a direction not to enter those premises unless vaccinated, which was to come into force on 1 December. Read with the fifth paragraph of the extract, this was clearly not a direction purporting, by its own force, to require staff to become vaccinated. It clearly envisaged that some staff would have concerns about vaccination and signalled a willingness to discuss whether that position could be reconciled with the requirements of their work.

70    For a worker whose role inevitably required them to be on site (such as a security guard or, at least arguably, a studio presenter like Mr Tredrea), the practical difference between a direction to be vaccinated and a condition of access to the workplace based on vaccination status might well have been a subtle one. Not being vaccinated would result in inability to perform their work and thus, potentially, termination of their employment or contract for services. However, I do not think it follows that the expression “direction” in cl 9.1(a) should be read in an extended sense so as to include creation of a practical imperative to do something. Disobedience of a “direction” was, per se, a ground for termination under cl 9; and the term therefore should not be read expansively. If Channel 9 chose to make it impossible for a worker to perform their work, and then terminate the relationship on the ground that work was not being performed, this would not entail termination for disobedience; it would need to be justified on other grounds.

71    To the extent that the second direction involved a direction to staff and contractors not to enter Channel 9’s premises on and after 1 December 2021 unless they had been vaccinated (or exempted from vaccination), it was reinforced on the evening of 30 November when Mr Pudney gave Mr Tredrea an oral direction not to come in to work the next day because he had not complied with the Condition of Entry Policy. Mr Tredrea complied with that oral direction (and also with the second direction, as I read it). He did not enter Channel 9’s office again.

The third direction (the Condition of Entry Policy)

72    The Condition of Entry Policy was circulated to all staff and contractors under cover of an email from Ms Vanessa Morley (Director, People and Culture) on 8 November 2021. The email said that the Policy would come into force on 1 December 2021.

73    A document entitled “FAQ on Nine’s Workplace Condition of Entry COVID 19 Policy”, circulated by way of the same email, said (relevantly):

•     Can Nine compel me to be vaccinated against COVID-19?

While Nine strongly encourages all our people to be vaccinated against COVID-19, it is ultimately a personal choice.

We are committed to protecting the health and safety of our people, and at this stage we consider it a reasonably practicable safety measure that our people must be vaccinated against COVID-19 before attending any of Nine’s premises.

•     Can I decide not to be vaccinated and still be able to work?

Please contact your manager and People & Culture if you have any questions about your personal vaccination circumstances. They will be able to discuss the impacts based on the state or territory in which you work, any Public Health Orders in place, as well as the inherent requirements of your role and our legal obligations to protect the health and safety of our people.

If you are in a role which Nine determines can be performed remotely, you will be able to do so until further notice (whether vaccinated or unvaccinated). Please speak with your manager about these arrangements.

As the COVID-19 situation is rapidly evolving, we cannot make any long-term commitments about the duration of any arrangements or Nine’s requirements to attend the office in the future.

74    The policy document itself said (relevantly):

a. Vaccination

There is already a requirement that many of our employees and contractors are fully vaccinated against COVID-19 in order to perform their work in line with applicable Public Health Orders.

In accordance with public health advice and as an integral part of our health and safety control measures, we strongly encourage all employees and contractors to get vaccinated against COVID-19 (two doses of a Therapeutic Goods Administration approved COVID-19 vaccine and any booster in line with the Department of Health's COVID-19 Vaccination Policy) where it is safe to do so in individual circumstances and on advice from a medical practitioner.

Nine will provide special vaccination leave to make it easier for you to attend a vaccination appointment within work hours.

At this stage, employees whose roles are able to be performed solely from home will continue to be able to do so regardless of your vaccination status, provided you continue to meet the requirements of your role satisfactorily as approved by your manager.

b. Attendance at Nine premises and other places where work related duties are carried out

From 1 December 2021 and until further notice, in order to attend a Nine Workplace, or work in the field (for example, journalists), including Nine work and social events, all employees and contractors will be required to be fully vaccinated against COVID-19 and be able to show proof of their vaccination status (see "Proof of vaccination status" section below). Nine will maintain a list of employees and contractors who are approved for attendance at Nine Workplaces in accordance with the "Proof of vaccination status" section below.

c. Proof of vaccination status

If you intend on attending any Nine Workplace, you will be requested to provide proof of your COVID-19 vaccination status via the secure Vaccination Status Portal. You may also provide evidence of your COVID-19 vaccination status, or an Australian Government approved medical exemption, to your manager at any time via the secure Vaccination Status Portal. Your vaccination status will be kept confidential on your employee file and in accordance with our Privacy Policy.

d. Medical exemptions

Nine will work with any employee or contractor who has a Medical Exemption and will endeavour to make necessary adjustments where it is reasonable to do so, to protect their health and safety whilst at work. This may, or may not, include providing access to a Nine Workplace.

75    The Policy defined “fully vaccinated” to mean “where your Australian Government Digital COVID-19 Certificate confirms you are fully vaccinated” and “medical exemption” to mean “where your Australian Government Digital COVID-19 Certificate confirms you have a medical exemption”.

76    The following features of this regime should be noted.

(a)    Channel 9 “strongly encouraged” its workers to be vaccinated but accepted that this was a “personal choice”.

(b)    Channel 9 was content for its workers who were not vaccinated to work from home to the extent that their roles were able to be performed in that manner.

(c)    In order to enter Channel 9 workplaces or work in the field, employees and contractors would be required to (i) be “fully vaccinated” and (ii) provide proof of their vaccination status.

(d)    Channel 9 would “endeavour to make reasonable adjustments” for persons with “medical exemptions” from vaccination, but was not making any promises as to whether they could attend its workplaces.

77    The Condition of Entry Policy did not purport to enact rules, binding on employees or contractors, breach of which would have specific legal consequences. Rather, it set out a framework (albeit a prescriptive one in most respects) within which future decisions or actions would be taken: for example, “employees and contractors will be required to be fully vaccinated” and “you will be requested to provide proof of your COVID-19 vaccination status”. I do not regard its language as purporting to give an authoritative instruction to persons in the position of Mr Tredrea. To the extent that it gave any such instruction, that instruction was not to enter a Channel 9 workplace, or undertake work “in the field”, without being “fully vaccinated” and providing confirmation to that effect. As noted above, Mr Tredrea did not attend Channel 9’s premises on or after 1 December 2021, when the Policy came into effect. He did not breach any “direction” contained in the Policy.

The fourth direction

78    The fourth direction, according to Channel 9’s pleading, was contained in an email sent on 15 November 2021. The only email of which there is evidence, sent from Channel 9 to the applicants on that day, is an email from Mr Pudney to Mr Tredrea following up on a discussion between them earlier on the same day. The discussion focused on medical exemptions from the Condition of Entry Policy and Mr Pudney explained advice he had received, to the effect that a note which Mr Tredrea had obtained from his general practitioner did not meet the criterion in the Policy. Mr Pudney’s email provided a link to some information on the Services Australia website. It concluded:

Please also keep in mind my request to enter your vaccination status in the portal by Wednesday.

As I said, I’m happy to chat whenever you need – and if you need time for any appointments I’m happy to assist with this also.

79    This was a reference to the conversation between the two men on 12 November 2021 (discussed above) and a reminder of the deadline for compliance with the first direction that had been conveyed on that occasion. As noted above, Mr Tredrea never complied with the first direction. I do not regard the fourth direction as adding anything to it.

The fifth direction

80    The letter containing the fifth direction was headed “Opportunity to show cause”. It was in part a response to an email sent by Mr Tredrea the previous day in which he took issue with the Condition of Entry Policy, raised concerns about the safety of the Provisionally Approved Vaccines and their ability to prevent infection, and suggested that there had been some confusion concerning the policy in relation to exemptions. He suggested that during an impending period of leave he would be able to obtain a medical exemption and sought the opportunity to talk through options if that was unsuccessful.

81    Under the heading “your requests and next steps” Channel 9’s letter said, in part:

Secondly, while we respect Warren’s personal choice in relation to COVID-19 vaccination, based on the information currently available to us we consider that from 1 December 2021 onwards you will be unable to discharge your obligations under the Services Agreement dated 31 August 2020 between Channel Nine South Australia Pty Limited, the Warren Tredrea Trust and Warren Tredrea (Contract).

This is because Warren has not provided Nine with evidence that he is fully vaccinated against COVID-19 or that he has a valid Medical Exemption. As a result, Warren will be unable to attend Nine Premises or work in the field in a manner that complies with the Policy.

If Warren seeks to continue to provide services pursuant to the Contract, we reiterate our direction that you are required to provide Nine with such evidence. You are required to do so by no later than 12pm on 3 December 2021. In the interim, you are directed that Warren is not required to provide any services.

If you say that you require additional time in order to provide Nine with evidence of Warren’s valid Medical Exemption, please let us know how much time you consider that you require and we will consider your request.

If you do not comply with this direction and/or maintain your position that Warren will not be vaccinated against COVID-19 (in the absence of a valid Medical Exemption), we will have no choice but to consider terminating the Contract, in accordance with clause 9 of the Contract.

Before making a final decision, we also invite you to provide any further relevant information you would like us to consider. This can be done in writing by email to Joanne Klados at jklados@nine.com.au by no later than 12pm on 3 December 2021. Alternatively, you may schedule a video conference to provide this information provided the conference is arranged by 12pm on 3 December 2021. You are welcome to bring a support person to any videoconference that may be scheduled.

If you choose not to respond within the time frame outlined above, we will be obliged to make our final decision in relation to the Contract based on the information that is presently available to us.

82    What was now being required was not evidence of Mr Tredrea’s “vaccination status” but confirmation that he actually had been vaccinated or had a “valid” medical exemption. However, this was not put in the form of a “direction” in the sense discussed above. Rather, Channel 9 was outlining its position that Mr Tredrea would not be allowed to attend its premises unless he was vaccinated; and, because (as explained earlier in the letter) being in the studio was essential to the performance of his role, he would not be able to discharge his obligations under the Services Agreement in these circumstances. Unless this situation was remedied, Channel 9 would consider terminating the Services Agreement. The only explicit “direction” was that Mr Tredrea was, on an interim basis, not required to provide any services.

83    The deadline stated in the letter of 1 December 2021 for Mr Tredrea to provide evidence that he was vaccinated or had a valid medical exemption was 3 December 2021. On the morning of that day Mr Pudney sent an email to Mr Tredrea and his solicitor, referring to earlier discussions and confirming Channel 9’s agreement to Mr Tredrea taking leave until 4 January 2022 in order to allow him time to obtain the evidence that Channel 9 required. He said that if a medical exemption was obtained, a further assessment would be needed concerning whether reasonable adjustments could be made to allow Mr Tredrea to attend Channel 9’s premises. He also said that Channel 9 would make a decision concerning the future of the Services Agreement on or around 4 January 2022.

84    As noted earlier, 4 January 2022 was the date on which Channel 9 wrote to the applicants terminating the Services Agreement.

Mr Tredrea’s non-compliance with directions

85    Properly analysed, the only “direction” that Mr Tredrea breached was the direction to inform Channel 9 of his “vaccination status” (ie the first direction discussed above, reiterated by the fourth direction). However, if this was a “lawful direction”, Mr Tredrea’s disobedience of it was sufficient to enliven the power in cl 9.1 to terminate the Services Agreement.

The resulting power to terminate

86    The applicants’ pleaded case is that:

(a)    Channel 9 gave them a “direction” on or about 15 October 2021 that, in order for Mr Tredrea to attend a site or location where work was being performed after 1 December 2021, he would have to provide evidence that he was “fully vaccinated”;

(b)    Mr Tredrea did not comply with this direction; and

(c)    the direction was not a “lawful direction” because it was not “reasonable”.

87    This articulation of the case treats the second direction as critical. However, as explained above, to the extent that the instruction not to come to work amounted to a “direction”, Mr Tredrea did not disobey it. The question whether that direction was a reasonable one therefore does not arise.

88    Neither the SOC nor the applicants’ Reply grapples with the first direction, which in my view is the only “direction” within the meaning of cl 9.1(a) and also a direction with which the applicants never complied. The Reply formally joins issue with (inter alia) [16.1.4] of the Defence, which alleges that all of the (so-called) directions relied on by Channel 9 were “lawful directions”, but no case was articulated as to why the first direction was not lawful. The applicant’s final submissions dealt with the cl 9.1(a) issue at the level of “the various directions”, without distinguishing between them and without separately analysing the lawfulness of the direction given to the applicants to provide “evidence” of Mr Tredrea’s “vaccination status”. This analysis is necessary.

Lawful direction

89    The applicants do not submit that the first direction (or any of “the various directions”) was not lawful in that it contravened any supervening legal requirement. They rely on a submission that a direction is “lawful” for the purposes of cl 9.1(a) only if it is “reasonable”. The only basis suggested for putting that gloss on the terms of the Services Agreement is that it is akin to an employment contract, and an employee is liable to be terminated for disobedience of a direction only if it is a reasonable one.

90    I reject that submission. The obligation of an employee to obey “lawful and reasonable” commands or directions of the employer is often described as a “common law obligation”: eg Thompson v IGT (Australia) Pty Ltd [2008] FCA 994 at [48], quoting McManus v Scott-Charlton (1996) 70 FCR 16 at [14] (Finn J) (McManus). That reflects the subordination of the employee to the employer’s interests that is inherent in the relationship, and the obvious need for some limitation on the extent of that subordination that has long been recognised as part of the jurisprudence relating to employment contracts (McManus at [18]; R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601 at 621–622 (Dixon J); One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [187]–[188] (Bromberg, Katzmann and O’Callaghan JJ). Thus, a contract of employment would not need to contain an express term requiring compliance with lawful directions; such a term would be implied, but on the basis that reasonableness was the touchstone of lawfulness.

91    Contracts for services are different. The service provider who enters into such a contract is understood to be conducting their own business and acting in their own interests. Any requirement to comply with directions given from time to time by the acquirer of the services needs to be set out in the contract. If such a requirement is included by an express term of a written contract, it is to be construed in accordance with conventional principles of contractual construction: ie by reference to the text read in context, including the circumstances addressed by the contract and the commercial purpose or objects to be secured by it (see, eg, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]–[47] (French CJ, Nettle and Gordon JJ)).

92    In the present case, it is common ground that Mr Tredrea was formerly an employee of Channel 9 and thus had the benefits (and bore the burdens) that came with that status. It was on his initiative that his legal relationship with Channel 9 was changed to the one ultimately embodied in the Services Agreement, with a corporate entity controlled by him (Tredders Investments) as the principal contractor. It has not been submitted that the relationship between the parties was in truth one of employment (a submission that would obviously face significant difficulties following Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165). Changing the relationship from one of employment to one involving a contract for services no doubt involved pluses and minuses for all parties, which they must be taken to have understood and accepted. The normal incidents of an employment relationship therefore do not provide an appropriate benchmark by which to interpret the language of the Services Agreement.

93    The construction of cl 9.1(1)(a) in its context is not simple.

(a)    Clause 3.11 of the Services Agreement, which is set out above, required Mr Tredrea to comply with “all reasonable directions of the Company”. The obligation expressly imposed on Mr Tredrea to comply with “reasonable” directions would arguably have been redundant if the Services Agreement empowered Channel 9 to terminate without notice on the basis of non-compliance by him with any lawful direction (reasonable or not). That suggests that cl 9.1(1) should be understood to authorise termination only when the direction that has been disobeyed is one that Mr Tredrea was required, under cl 3.11, to comply with (ie, a “reasonable” direction).

(b)    However, cl 3.11 only bound Mr Tredrea, while cl 9.1(a) referred in its terms to disobedience by either of the applicants. Clause 9.1(a) thus appears to have contemplated directions being given to Tredders Investments, although that topic was not covered anywhere in cl 3. This undermines any argument that the only directions capable of engaging cl 9.1(a) were those that bound Mr Tredrea under cl 3.11.

(c)    Further, cl 9.1(c) authorised Channel 9 to terminate the Services Agreement where either of the applicants “breaches any material provision” thereof, including provisions in cl 3. Failure by Mr Tredrea to comply with a “reasonable direction” would have breached cl 3.11 and thus engaged cl 9.1(c). This would leave cl 9.1(a) with no work to do (at least in relation to Mr Tredrea), if it was only engaged by non-compliance with a direction that was “reasonable”. Thus, introducing a qualification on the ordinary meaning of cl 9.1(a) in order to give cl 3.11 meaningful effect results in cl 9.1(a) itself doing no work in relation to one of the applicants, even though it expressly mentions both.

94    On balance, therefore, cl 9.1(a) should not be understood to have been engaged by non-compliance with a direction only if that direction was “reasonable”.

95    This does not mean that there were no limits at all on the directions that could be given by Channel 9 to the applicants with termination of the Services Agreement as a potential consequence of non-compliance. The contract must be read as an entire document and construed so as to give it business efficacy. Implicitly, there would need at least to be some connection between the direction and the subject matter of the Services Agreement. However, no such limit was canvassed in the submissions. Given the terms of cll 3.2–3.7 and 3.9, the matters as to which Channel 9 would have been entitled to give directions to Mr Tredrea would appear to be very broad. In effect, he was being retained in the capacity of on-screen “talent” and agreed by these terms to conduct himself in whatever manner was deemed to enhance the image and reputation of Channel 9.

96    Mr Tredrea’s reasons for disobeying the first direction might properly have been regarded by Channel 9 as relevant to its decision as to how to respond. They do not make a difference to the question whether disobedience of a lawful direction occurred and whether the power to terminate the Services Agreement therefore arose.

97    It follows from what I have said so far that Channel 9 was entitled to terminate the Services Agreement under cl 9.1(a) as a result of Mr Tredrea’s deliberate non-compliance with the first direction. However, I consider briefly below:

(a)    the position in relation to the first direction if cl 9.1(a) were limited to non-compliance with “reasonable” directions; and

(b)    whether, if Channel 9’s Condition of Entry Policy constituted in substance a direction to Mr Tredrea to be vaccinated against COVID-19 (which he disobeyed), that was also a “reasonable” direction capable of engaging cl 9.1(a).

Reasonable direction

98    Apart from their debate as to the applicability of concepts drawn from employment law, the parties did not address the content of the concept of reasonableness in any detail. As I have observed, the Services Agreement was not an employment contract. It was a commercial contract, entered into by parties between whom there was not any obvious disparity in bargaining power. If the Services Agreement contained an implied limitation such that the power of termination under cl 9.1(a) arose only in the case of disobedience of a “reasonable” direction, that limitation should be understood to be no more restrictive than that which arises in an employment contract. In this part of the reasons I will assume that the concept of a “reasonable direction” as applied in employment law is applicable here.

99    The concept of a reasonable direction was recently considered by the Full Bench of the Fair Work Commission in Construction, Forestry, Maritime, Mining and Energy Union v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059 (Mt Arthur Coal). While the Commission’s decisions have no particular precedential status in this Court, it is a body with long experience and significant expertise in industrial law. The Full Bench said (at [72], [77]-[81]):

Reasonableness is ‘a question of fact having regard to all the circumstances’ and that which is reasonable in any given circumstance may depend on, among other things, the nature of the particular employment. The approach to the task of assessing the reasonableness of a direction to an employee was identified by Dixon J in Darling, as follows:

‘But what is reasonable is not to be determined so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.’

…

It appears uncontroversial that in order to establish that a direction is reasonable, it is not necessary to show that the direction in contention is the preferable or most appropriate course of action or in accordance with ‘best practice’ or in the best interest of the parties. It is also uncontentious that in any particular context, there may be a range of options open to an employer within the bounds of reasonableness. As the Respondent submits:

‘In assessing whether any direction is reasonable, it is necessary to bear in mind that within the boundaries of an employer’s power of direction there is an area of ‘decisional freedom’ within which the employer has a genuinely free discretion. That area is co-extensive with what was once more commonly called ‘managerial prerogative’. Within that area, reasonable minds might differ as to what decision is best or most desirable, but any decision or outcome within that area is within the bounds of reasonableness.’

The availability of a range of reasonable directions in response to a particular set of circumstances sits conformably with the following observation of the plurality in Li, albeit the point arose in different [sic] context:

‘… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker.’ (Footnotes omitted)

Nor is it seriously contested that a direction lacking an evident or intelligible justification is not a reasonable direction an employee is obliged to obey, but that is not the only basis upon which unreasonableness can be established. As we have said, reasonableness is a question of fact having regard to all of the circumstances. Contrary to Ai Group’s submission, there is no ‘high bar’, or any other type of bar or gloss to be put on the requisite assessment. It is an objective assessment of the reasonableness of the direction, having regard to all of the circumstances.

We observe that the approach we have adopted in this matter is consistent with the following observation of the Full Bench in Briggs v AWH Pty Ltd:

‘The determination of whether an employer’s direction was a reasonable one (there being, as earlier stated, no contest in this case that AWH’s direction was lawful) does not involve an abstract or unconfined assessment as to the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties. The proper approach to the task is that identified by Dixon J in R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday and Sullivan in the following terms:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.’

We would also observe that courts and tribunals have taken a broad view of what might constitute a lawful and reasonable direction in particular circumstances, including but not limited to:

•    a direction that an employee refrain from wearing a caftan while performing duties (and so being visible to co-workers and the public);

•    a direction to remove an eyebrow ring whilst at work;

•    where there is a genuine indication of need for it, requiring an employee, on reasonable terms, to attend a medical examination in order to determine their fitness for work;

•    requiring an employee to provide a medical report indicating diagnosis and likely capacity and time to return to ordinary duties (rather than just providing a medical certificate)

•    an order that a senior employee not make public comments about decisions the employer has made in relation to its business

•    a direction that an employee not privately contact a co-worker, after the employee had been counselled in relation to sexual harassment of the co-worker, and

•    a direction to an employee to maintain the confidentiality of information gathered and recorded during disciplinary processes.

(Citations omitted.)

100    From these observations the following points of present relevance may be distilled.

(a)    In order to be seen as reasonable (and otherwise within the scope of the relevant contract), a direction must have some rational connection with the duties to be performed. As was said long ago in Australian Tramway Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42, “The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets”. (Examples of this kind need to be applied with some caution in the present case, where Mr Tredrea’s appearance and public persona were part of what Channel 9 bargained for, but the general point is no doubt sound.)

(b)    For a direction to be reasonable, it must have an “evident and intelligible justification” (a phrase borrowed from administrative law). I take this to mean that the direction must be capable of being seen as a genuine, considered (ie, not capricious) measure taken by the employer to advance or protect its legitimate business interests, and it must be within the bounds of what a reasonable employer could regard as necessary or desirable to protect those interests.

(c)    It is not necessary for the employer to demonstrate that the direction was the correct or preferable one in the circumstances. Correspondingly, evidence or analysis with the benefit of hindsight going to the correctness of judgments made by the employer will rarely be useful. The reasonableness of a direction must be assessed as at the time the direction was given and in the light of the facts that were known, or should have been known, to the employer at that time.

101    An aspect of point (b) in the previous paragraph is that a reasonable direction is one that is the product of a reasoning process. A direction given capriciously would not be a reasonable direction, even if the same direction might have been given by a person who had thought through the relevant issues carefully. However, I do not accept the applicants’ submission that a direction can only be characterised as a reasonable one if it is known exactly who made the decision to give it, for what reasons and what information they considered.

102    Reasonableness depends primarily on whether the direction, viewed objectively, is a rationally defensible response to circumstances that were known at the time. Questions of subjective reasoning may be relevant to a question whether the direction truly was a response to circumstances and not caprice; however, it does not follow that the Court must (or should) engage in a critique of whatever subjective reasoning process is disclosed. One reason why this must be so in the present case is that the Services Agreement was a commercial contract and the parties were entitled to pursue their own interests, as they saw them, within the framework fixed by its terms. Channel 9 was therefore not obliged by the terms of the Services Agreement to exercise its power to give directions (or for that matter its power to terminate) for any specified purposes or to take specified considerations into account. Further, in the light of my conclusion as to the onus of proof, the Court would proceed on the basis that a direction was the product of a genuine process of reasoning in the absence of evidence that it was not.

Reasonableness of the first direction

103    As noted above, the applicants did not direct any pleading or argument specifically at the first direction. No case was articulated as to why it was not “reasonable”. In my view it clearly was a reasonable direction.

(a)    The author of the email sent to staff on 14 October 2021, Ms Morley, did not give evidence. However, it can be inferred that the direction to staff and contractors to inform Channel 9 about their vaccination status was a deliberate element of a strategy that was being adopted, and not simply a capricious intrusion into the privacy of staff and contractors. The Channel 9 group’s management and its People and Culture team had been dealing with the effects of COVID-19, and measures imposed by State and Territory governments to limit its transmission, for some time. The Condition of Entry Policy had been drafted and was close to being announced to staff and contractors (it was announced the following day, in the third direction, and was to come into effect six weeks later).

(b)    Government in most if not all Australian jurisdictions was seeking to reduce restrictions on the movement of people, and widespread vaccination was understood to be an important tool for limiting the effects of the increased exposure to COVID-19 that would result. People who had not received one of the Provisionally Approved Vaccines (or who had been vaccinated more than a few months ago) were understood to be at greater risk at least of serious illness, with ongoing health effects, than people recently vaccinated. It was manifestly useful, and appropriate, for Channel 9 to know as much as it could about who among its staff and contractors was vaccinated and who was not, so that it could manage these risks.

(c)    Some attempt was made to limit the intrusion into people’s privacy and the risk of private medical information being leaked. Staff and contractors were asked not to upload vaccination documentation to the Portal, but to be ready to show it to their managers in order to confirm the accuracy of information supplied.

Disobedience of a lawful direction

104    As noted above, Mr Tredrea did not comply with the first direction. He made a deliberate decision not to do so, and his conduct clearly amounted to “disobedience” within the meaning of cl 9.1(a).

The second to fifth directions

105    The second to fifth directions, which have been outlined above, involved the imposition of Channel 9’s Condition of Entry Policy. As I have sought to explain, none of these involved a direction in the sense of an authoritative instruction (based on Channel 9’s contractual rights vis a vis individual employees or contractors) to perform a particular act. In particular, the Channel 9 group’s communications with staff made clear that it was not asserting a right to direct anybody to undergo a medical procedure. The Condition of Entry Policy placed economic pressure on employees and contractors, by indicating that they would be denied entry to workplaces unless they provided evidence that they were vaccinated or had a recognised medical exemption; however, that is a different matter from giving a direction.

106    The direction in issue in Mt Arthur Coal was referred to in the Commission’s reasons as the “Site Access Requirement”. It was also a response to the COVID-19 pandemic, introduced in the latter part of 2021, and was of essentially the same character as the Condition of Entry Policy in the present case: employees were required to obtain at least a single dose of an approved vaccine by a particular date, and informed that they would not be permitted access to the respondent’s mine site after that day if they did not provide evidence of vaccination. This was held not to be a lawful and reasonable direction, but only because relevant consultation obligations had not been complied with before it was made (see at [253]). Channel 9’s submissions contained a list of 50 decisions of the Commission in which similar policies, adopted by employers, were upheld as reasonable and lawful directions. Reference was also made to employment law cases decided in the courts (Parkin v Alliance Airlines Pty Ltd [2023] FCA 386 and Wolfraad v Serco Australia Pty Ltd [2022] FedCFamC2G 1063) and to Kassam v Hazzard [2021] NSWSC 1320, Falconer v Chief Health Officer (No 3) [2022] WASC 270 and Finlay v Commissioner of Police (WA) [2022] WASC 272, where vaccination requirements imposed by statutory instruments under State legislation were upheld. These decisions are of some, but limited, assistance to Channel 9. They support in a general way the proposition that the imposition of a requirement to be vaccinated against COVID-19, as a condition of travelling to a certain area or attending a workplace, was a reasonable measure to take in the face of what was understood about the spread of the virus and the effects of infection in 2021 and 2022. However, the reasoning in these cases is a product of the particular legal regimes that were being applied and the evidence adduced.

107    An important reason why the reasoning in these cases is not directly applicable here is that the lawfulness of the Condition of Entry Policy is not directly in issue. Mr Tredrea has not sought a declaration that the Policy was invalid or an injunction to prevent it being implemented. Channel 9 pleads disobedience of the Policy as a ground for termination of the Services Agreement under cl 9.1(a). However, as outlined above, there was no disobedience. Mr Tredrea was instructed to stay away from Channel 9’s premises if he was not vaccinated, and he stayed away.

108    Questions of disobedience—and thus the lawfulness of the Condition of Entry Policy—arise only if the Policy is construed, not as restricting Mr Tredrea’s access to Channel 9 premises, but as instructing him (with the force of whatever power Channel 9 had to do so) to be vaccinated. Even then, Channel 9 had other grounds on which to base its termination of the Services Agreement; and the lawfulness of the Policy therefore does not need to be decided. In addition, for reasons outlined above, I have concluded that the legal efficacy of the Policy (and thus its availability as a ground for termination, if it was disobeyed) did not depend on any supervening test of reasonableness.

109    What follows, therefore, is unnecessary to my decision for several reasons. I set out my conclusions in case my reasoning on the other points discussed above is wrong. However, I do so as briefly as possible. I approach this part of my reasons on the footing that Channel 9 was directing Mr Tredrea to be vaccinated with a Provisionally Approved Vaccine if he could not obtain a medical exemption. Of course, Channel 9 could not exercise any coercive power to enforce such a direction. The most that it could do was regard Mr Tredrea as in breach of his contractual obligations if he did not comply with it. Such a direction was within Channel 9’s power under the Services Agreement, subject (I am assuming here) to reasonableness. Channel 9 had express rights in relation to Mr Tredrea’s appearance under cl 3.6, and an implicit right to give directions relevant to his general health and availability to perform services. Where his services were to be performed in proximity to other staff and contractors, Channel 9 also had a legitimate interest in the well-being of those persons.

110    On the issue of reasonableness, I consider first whether the Condition of Entry Policy was the product of a reasoning process. I then consider whether the policy was within the bounds of reasonableness as outlined at [98]–[102] above.

The decision making process

111    Channel 9 called evidence from Ms Danielle Odd concerning the development of the Condition of Entry Policy, and from Mr Morgan Slocombe. Ms Odd was at relevant times the Group Head of Safety Strategy for the Channel 9 group nationally. In that role she was responsible for assessing risks to entities in the group from the COVID-19 pandemic and coordinating the implementation of various measures to address those risks. She drafted the Condition of Entry Policy in circumstances to be mentioned shortly. Mr Slocombe was a more junior employee who, under Ms Odd’s direction and in conjunction with a Ms Michelle Fitts, prepared a Risk Assessment document discussing issues relating to COVID-19 vaccination.

112    Some time was spent on the Risk Assessment in cross-examination of Ms Odd and Mr Slocombe. Annexed to Ms Odd’s affidavit was a document which she said was the version of the Risk Assessment sent to her by Ms Fitts on 8 September 2021. It was under cover of an email from Ms Fitts to Ms Odd dated that day. This version (RA version 1) stated on its first page that it had been prepared to address risks associated with studio production at Nine Sydney following a spike in cases on Sydney’s Northern Beaches in December 2020. Another version (RA version 2), dated September 2021, was included in the Court Book and defined in Ms Odd’s affidavit as “the Nine Risk Assessment”, which seemed to suggest that it was the final version of the document provided to executives for the purpose of making a decision. RA version 2 retains the text on the first page to the effect that it was prepared for the purposes of Nine Sydney, but that text is highlighted in yellow. However, a further version, under cover of an email from Ms Morley to various recipients on Friday 10 September 2021 (in preparation for an “Exec Meeting” at 9.30 am the following Monday), was produced during the trial in answer to a call for the document actually provided to the executive team (RA version 3). Ms Odd accepted in cross-examination that RA version 2 was in fact a draft, as appeared from the yellow highlighting and the fact that it also contained some text coloured red in the nature of a comment written in first person.

113    The reference to Nine Sydney in RA versions 1 and 2 is most likely (as Mr Slocombe suggested during cross-examination) a legacy of the originator of the first draft having used the risk assessment that was done on the earlier occasion (which was also produced and tendered) as a template. Other changes that were made from version to version are consistent with a document originally prepared to deal with a local problem in Sydney being expanded to encompass the range of situations faced by a national business operating in a pandemic.

114    There are two slightly perplexing aspects of this chain of documents.

(a)    RA version 3, even though it is for present purposes the final version of the Risk Assessment (ie the version that Ms Morley distributed for discussion among the executive team), had the word “DRAFT” added to the main heading “Risk Assessment” at the top of the first page. RA versions 1 and 2, which in other respects appear to be earlier versions, do not contain this word. It would appear that somebody involved in the preparation of version 3 envisaged that further work might need to be done on it and wanted to make that plain. Ms Odd gave evidence that the document was never definitively finalised.

(b)    Ms Fitts’ first name is misspelt (“Michell”) on the first page of RA version 1, even though she is listed as part of the “Risk Assessment Team” and it was she who emailed the document to Ms Odd. The misspelling is corrected on RA version 2 but appears again on RA version 3. However, other text that was added in RA version 2, at least for the most part, remains in RA version 3. This makes it unclear whether RA version 2 is an intermediate version, or there were parallel versions of the document being worked on by different people.

115    However, these issues are ultimately a distraction. I accept that Ms Odd, Ms Fitts and Mr Slocombe were monitoring developments in relation to COVID-19 during 2021 and they worked together in September of that month to produce a risk assessment for senior management to consider. Ms Morley distributed that assessment, as it then stood, to members of the “executive team” prior to a meeting on 13 September. In relation to “High Risk Workers” (who included the “News Team”), RA version 3 rated the risk without any controls as “Extreme” and with existing controls as “High”. Among the further measures it suggested for discussion were “Mandatory Vaccination for these workers”, “Onsite vaccination program nationally”, “Evidence medical exemption”, “Proof of vaccination/privacy” and “Review of employment contracts”. This did not purport to be a detailed policy paper but was, at least, a list of potential measures for discussion in the light of the risks understood to be posed by COVID-19 where staff and contractors were working in close proximity with each other.

116    Ms Odd attended the meeting of the “executive team” on Monday 13 September 2021, at which vaccination was discussed in the light of the Risk Assessment. The outcome of the meeting, according to her recollection, was that, subject to the outcome of consultations with Channel 9’s workforce, a policy making COVID-19 vaccination a condition of entry to workplaces would be implemented. Ms Odd was given the task of drafting a policy document and finished a draft the following day.

117    The composition of the “executive team”, its status within the Channel 9 group, and thus who in a formal sense made the decision to require workers to be vaccinated are somewhat mysterious. There is nothing to indicate that the issue went before Channel 9’s board or its Chief Executive Officer, and no document is in evidence recording the decision or the reasons for it. Ms Odd’s recollection of the executive team meeting, its outcome and exactly who had given her the drafting task lacked detail. The exact reasons why the Condition of Entry Policy was adopted are therefore somewhat opaque. If reasonableness required Channel 9 to establish who made the decision and on precisely what basis, the evidence led by Channel 9 would clearly be insufficient. However, as explained above, the concept of a reasonable direction is not so exacting. It is apparent that, following discussion by the Channel 9 group’s executive team, Ms Odd was asked to draft a policy document. She prepared the initial draft of the Condition of Entry Policy which, after further consultations and the announcement on 15 October (the second direction, above), was promulgated to staff and contractors by Ms Morley on 8 November 2021 (the third direction, above). As noted above, Ms Morley’s title was Director, People and Culture. The evidence is sufficient to show that the adoption of the Condition of Entry Policy was a considered decision, taken at a reasonably senior level within the Channel 9 group, on the basis of a consideration of the risks presented by the COVID-19 pandemic and the steps available to mitigate them.

Matters for consideration by Channel 9

118    It was clearly proper for Channel 9 to adopt policies directed at the profitability and continuity of its business. Several issues were potentially relevant to any direction Channel 9 might give to its staff and contractors in relation to vaccination for COVID-19.

119    First, if an employee or contractor became infected with COVID-19, Channel 9 had a legitimate interest in that employee or contractor not becoming seriously ill and being unable to work for an extended period. That was particularly so if the infection should occur in the workplace, where Channel 9 had legal and moral obligations to try to minimise harm to its workers. It was notorious that in rare cases COVID-19 infection had debilitating after effects that made people unable to live normal lives for months if not permanently. The risk of a worker being incapacitated for a long period could be reduced by giving that worker every possible incentive to be vaccinated. This would be so even if the Provisionally Approved Vaccines did little or nothing to prevent infection, so long as they had efficacy in reducing the seriousness of illness.

120    Secondly, soundings taken by Channel 9 had shown strong support among its workforce for vaccination and for a vaccination mandate. Many if not most of its workers did not want to be in the workplace alongside people who were not vaccinated. It was reasonable for Channel 9 to take the view that it needed to consider the wishes of its workers if it wanted their ongoing commitment.

121    Thirdly, the Channel 9 group was a large and prominent national media organisation whose public profile and reputation were obviously important to it. It had taken a public stance that was strongly in favour of members of the Australian community being vaccinated using the Provisionally Approved Vaccines. It had produced and broadcast promotional videos, featuring members of its stable of “personalities” (presenters, journalists and performers), promoting vaccination. Having decided to throw its weight behind the campaign to increase vaccination rates, there was clearly a virtue from the group’s point of view in being seen to act consistently with that position in dealing with its own workforce.

122    Each of these was a reason why it was rational for entities in the Channel 9 group to direct those of their employees and contractors who needed to come in to the workplace to be vaccinated. This is so at least in circumstances where the vaccines had been through testing processes to confirm their safety (and were being put forward by responsible government entities as safe to use), and exceptions were made for people who had medically certified reasons not to be vaccinated.

123    Of course, as observed above, the evidence does not show the extent (if at all) to which senior management of the Channel 9 group actually considered any of these factors. The point is not that these factors were given any particular weight, but that they were part of the surrounding circumstances that made Channel 9’s position objectively reasonable.

124    The case mounted by the applicants against the reasonableness of requiring vaccination revolves around a proposition that the Provisionally Approved Vaccines had little or no efficacy in preventing infection by the COVID-19 virus or transmission of the virus to other people. Thus, it was said, an unvaccinated worker would have roughly the same chance of becoming infected, and infecting their co-workers, as one who was vaccinated. There were other measures, such as requiring masks and social distancing, that were equally or more effective in preventing transmission of the virus. Furthermore, if an unvaccinated worker were to infect their co-workers, those co-workers would likely be vaccinated and would not become seriously ill. Meanwhile, vaccination with the Provisionally Approved Vaccines involved certain identified health risks, and the longer term effects of the viruses on the human body were not known.

125    The first articulation of this case can be seen in SOC [17], which is set out at [28(e)] above. This articulation has the obvious defect that it pleads the relevant propositions as to effectiveness and risk as objective facts, seemingly to be proved by scientific evidence, and not by reference to what was known or should have been known to Channel 9 at the time of the relevant decisions. SOC [17] did not limit the broader allegation in SOC [16] and therefore was ultimately a distraction.

126    Before turning to the issue of the efficacy of vaccines, two short points should be made about the applicants’ case on reasonableness.

(a)    The case did not grapple with the other considerations supporting a vaccination requirement which I have noted at [119]–[121] above.

(b)    The availability of other measures to limit infections does not advance matters. It was not suggested that any combination of these other measures could have eliminated the risk of workers infecting each other.

127    Both the applicants and Channel 9 filed expert reports, and the experts were cross-examined.

(a)    The applicants called Professor Nikolai Petrovsky, who holds senior appointments in endocrinology and diabetes and is the director of a company (Vaxine) that has developed a COVID-19 vaccine.

(b)    Channel 9 called Associate Professor Paul Griffin, who is Director of Infectious Diseases at the University of Queensland and has extensive experience in clinical trials of novel vaccines.

128    Professor Petrovsky was asked to opine on a series of questions concerning the nature of COVID-19, the situation in Australia as at October 2021–January 2022, the effect of the Provisionally Approved Vaccines in relation to the important COVID-19 variants at that time, and the risk of medical conditions arising from receiving those vaccines. Those questions invited hindsight to a significant degree, although Professor Petrovsky in his report largely confined himself to information that was available in the identified period. Associate Professor Griffin, on the other hand, was asked to opine on a series of questions concerning the “prevailing medical opinion” in Australia at the relevant time. These questions came closer to the real issues in the proceeding, but Associate Professor Griffin did not always confine himself to them. He (perhaps understandably) responded to Professor Petrovsky’s views concerning the objective merits of the vaccines, and sometimes did so by reference to material published after the relevant period.

129    The expert evidence was ultimately of very limited utility. The reasonableness of the Condition of Entry Policy is to be assessed according to the circumstances that faced Channel 9 at the time of the relevant decisions, including the information that it had or should reasonably have had at that time. The standard is that of a reasonable employer. It was not suggested that that standard required Channel 9 to bring to bear the knowledge and expertise of a medical scientist keeping abreast of the latest publications in the field. In an environment where COVID-19 and the merits of vaccination were the subject of fairly regular statements by public health authorities, it was not unreasonable for Channel 9 to be guided by those statements in forming a policy with respect to the vaccination of its workers. The cross-examination of the experts provided a vehicle for some of these statements to be tendered and discussed. However, the Court does not require the assistance of expert evidence to understand what these statements said, or how a reasonable employer should have understood them.

130    I therefore discuss the expert evidence very briefly. Professor Petrovsky advanced the view that there was no proper basis, in the literature available in late 2021, to conclude that vaccination with any of the Provisionally Approved Vaccines had any worthwhile effect on the likelihood of a person becoming a vector for the transmission of any of the then-significant variants of COVID-19. Associate Professor Griffin opined that there were some indications in the published studies that, by reducing the severity of infection, vaccination could make a person somewhat less likely to transmit the virus to others. Professor Petrovsky emphasised the truncated nature of the clinical trials that the vaccines had undergone before being made available for public use and the numbers of cases where adverse effects (including death) had been linked to their use; Associate Professor Griffin emphasised that the reported cases of adverse effects constituted a miniscule percentage of the doses administered and observed that, from a societal point of view, use of the vaccines was overwhelmingly positive.

131    To the extent that it is necessary to resolve the difference of view between the experts, I prefer the evidence of Associate Professor Griffin. This is for three reasons. First, Associate Professor Griffin’s main areas of professional activity appear to be more closely connected to the subject matter of their disagreement. Secondly, some of the scientific papers available in late 2021 (to which Associate Professor Griffin was taken in cross-examination) did indicate that a vaccinated individual who became infected with COVID-19 was somewhat less likely than an unvaccinated person to infect others (although this effect was limited, waned over time and seemed to be less significant in respect of newer variants of the virus). Of course, from a public health point of view, this was not the main reason why governments encouraged as many people as possible to be vaccinated and many businesses (including, as noted above, the Channel 9 group) supported those campaigns.

132    Thirdly, I came to the view that Professor Petrovsky is not sufficiently disinterested to be relied on as an expert witness in this area. My reasons for taking this view are as follows.

(a)    Professor Petrovsky is the sole director of Vaxine (which he owns jointly with his wife and entities controlled by them). Vaxine has been involved in the development of a COVID-19 vaccine which, if approved, would be an alternative to those currently provisionally approved. Its vaccine (COVAX-19 or Spikogen) is a recombinant protein vaccine, and thus works differently to the Provisionally Approved Vaccines (which are mRNA or viral vector vaccines). Vaxine obtained a modest amount of government funding for the development of its vaccine in mid 2021, which Professor Petrovsky described as small and inadequate. It was not able to obtain any further funding, and has not managed to have its vaccine approved for use in Australia (it is approved and used in one overseas country). Vaxine was issued with an infringement notice by the TGA for advertising an unapproved vaccine, which it did not contest. Professor Petrovsky is thus a would-be competitor of the manufacturers of the Provisionally Approved Vaccines, with strong reasons to be frustrated with the TGA.

(b)    Whether for this or some other reason, Professor Petrovsky now has a strong ideological antipathy to vaccine mandates. I use the term “ideological” to convey that he opposes such mandates for ethical or political reasons, and not (or not only) as a function of conclusions he has reached as a scientist concerning the effect of vaccines on the human body. I note the following points.

(i)    In August 2021 Vaxine published a video on its YouTube channel entitled “Efficacy of COVID-19 vaccines”. The video asserted (apparently in relation to vaccines generally) “you are safe”, and concluded with the statement “it’s good to care about the efficacy rate, but what matters more is to get vaccinated as soon as possible”. This was a time when Professor Petrovsky was seeking funding for the development of Vaxine’s COVID-19 vaccine. In an expert report that he wrote in January 2022 (more or less contemporaneously with the decisions by Channel 9 that are in issue here), Professor Petrovsky accepted that vaccination might modestly reduce infection and transmission.

(ii)    More recently, Vaxine’s social media pages have taken a strong line against Australian health authorities, accusing the TGA of corruption and lauding Professor Petrovsky for exposing “the false and misleading claims being made by the State and Federal Health Departments”. Through Professor Petrovsky’s wife, Vaxine has sought public funding through GoFundMe. Its pitch for public donations included statements such as that the Health Department and the TGA “are effectively acting as the marketing department of Pfizer”, and that Vaxine was being attacked because it was “challenging the New World Order”. Professor Petrovsky sought to distance himself from these statements (and from the video mentioned above). However, given his role in Vaxine, it is implausible that he was not aware of them and did not at least acquiesce in their being made.

(iii)    The GoFundMe page mentioned above also contained a link to the video, published online, of an interview in which Professor Petrovsky participated around April 2023. He agreed that his statements in the interview reflected his honest views at the time. He spoke at length concerning vaccine and mask mandates, which he said were scientifically unjustified and an infringement of civil rights. He suggested (in summary) that responses to the pandemic in Western countries involved a “coordinated” program aimed at “mind control and behavioural control”. The behaviour of scientists (other than Professor Petrovsky himself) came in for heavy criticism: he regarded his peers as constantly competing for resources and the ear of government.

(iv)    Since 2022 Professor Petrovsky has given expert evidence in at least 8 other proceedings in Australia and New Zealand in support of individuals attempting to challenge vaccine mandates. It would be inappropriate to canvass how his evidence has been received in other cases and I have not done so. It should also be said that there is nothing intrinsically wrong with being in demand as an expert witness. However, this level of activity suggests commitment to a cause. In one of these proceedings, Professor Petrovsky’s Telegram account (“Team Petrovsky”) was used to raise funds for the applicant. This is inconsistent with the disinterestedness that is to be expected from an expert witness.

(v)    In 2021 Professor Petrovsky was not permitted access to the Flinders Medical Centre, where he held an appointment, because of a public health order which required him to be fully vaccinated. He said, perplexingly, that he “didn’t see the need” to receive one of the Provisionally Approved Vaccines after having received a dose of his own vaccine and tested his blood. This was a strange characterisation of a situation which led to Professor Petrovsky needing to take leave for an extended period as a result of his refusal to do a very simple thing. This episode, and some inconsistencies in how Professor Petrovsky had described it, were advanced by Channel 9 as a further reason to be sceptical about his opinions. However, later in his evidence, Professor Petrovsky said that he had made a judgment about receiving a Provisionally Approved Vaccine based on the risks and benefits as he saw them. If that is the explanation, it suggests a degree of fear about the potential consequences of the particular vaccines rather than an overarching objection to vaccine mandates. I therefore do not regard this particular episode as standing in the way of acceptance of Professor Petrovsky’s evidence.

(vi)    Professor Petrovsky’s ideological position was apparent in some aspects of his evidence. For example, his first report included a section arguing that vaccine mandates are destructive of public trust and therefore intrinsically counterproductive, even though this was not within the scope of his expertise or the question he had been asked. In his oral evidence he expressed the view that, as a clinician, he would not administer a vaccine to somebody who asked for it in order to comply with a requirement imposed by their employer, because he would not regard that person as giving informed consent to the procedure.

133    A reasonable employer considering whether to require its workers to be vaccinated for COVID-19 would have had regard to statements by government health authorities and advisory groups (which can also be taken to represent prevailing medical opinion in Australia at the time, if that is the relevant test). Various statements concerning vaccination for COVID-19 were published during 2021 by the Australian Technical Advisory Group on Immunisation (ATAGI), a group of 15 experts responsible for consulting relevant organisations and advising the Commonwealth Minister for Health. They canvassed information concerning the small number of known cases of severe adverse effects of vaccination and stressed the need for individuals to weigh the risks for themselves, but were uniformly supportive of vaccination.

134    A statement by ATAGI published on 13 July 2021 said in part:

The benefits to the individual of being vaccinated include avoiding severe COVID-19 outcomes, such as hospitalisation, intensive care unit admission and death, as well as chronic post-COVID-19 conditions (‘long COVID’). Other benefits of vaccination including [sic] reducing the risk of passing the virus to close contacts including family, friends and work colleagues, and the potential to help reduce community spread of the virus. In outbreak settings, the benefits of COVID-19 Vaccine AstraZeneca are increased compared with non-outbreak settings. When the virus is spreading in the community it is critical that as many people as possible are vaccinated as quickly as possible.

In both outbreak and non-outbreak situations, ATAGI considers the benefits of COVID-19 prevention to outweigh the small risk of adverse events including TTS in those 60 years or older. ATAGI therefore reinforces the benefits of vaccination with COVID-19 Vaccine AstraZeneca in these individuals.

In outbreak settings, such as that currently occurring in Sydney, the benefits of vaccination are greater. Given the changes to the risk-benefit equation, ATAGI recommends adults under 60 years who do not have immediate access to Comirnaty (Pfizer) should re-assess the need for vaccination with AstraZeneca given these greater benefits.

(Emphasis added.)

135    ATAGI issued detailed clinical guidelines for the three Provisionally Approved Vaccines on 8 October 2021. Under the heading “Vaccine effectiveness against SARS-CoV-2 transmission”, the guidelines referred to data from studies in the UK and Finland which “showed” or “suggested” that each of the Provisionally Approved Vaccines was effective in preventing onward transmission of the virus to close contacts in cases of breakthrough infections. In a statement canvassing vaccination of children for COVID-19 issued in December 2021, ATAGI said that it had taken into account “the benefits that vaccinating this age group would have for the broader community through reduced transmission levels and greater protection for older and more vulnerable Australians”—an observation that clearly envisages vaccination having an effect on the likelihood of transmission of the virus. A statement issued later in December 2021, addressing the Omicron variant, said in part:

The effectiveness of a booster dose to prevent onward transmission of Omicron from infected persons, and the duration of protection afforded by a booster are currently unclear. It is expected a reduction in symptomatic infection will parallel a reduction in transmission.

136    The Australian Health Protection Principal Committee (AHPCC) was chaired by the Commonwealth’s Chief Medical Officer and had as its members all of the State and Territory Chief Health Officers. It also published several statements on responses to the pandemic in 2021. A “statement on recommendations for managing COVID-19 health risks” published on 12 October 2021 said, in part:

It is important to remember that regardless of age or medical conditions, COVID-19 vaccination reduces an individual’s risk of severe COVID-19. In addition, the risk of exposure to COVID-19 is reduced as more people in the community are vaccinated against COVID-19.

(Emphasis added.)

137    A reasonable employer might also have had regard to guidance for employers issued by the Australian Chamber of Commerce and Industry. A guide issued by that body in August 2021 suggested “key messages” to communicate to employees, including:

•    Vaccines are the way out of this pandemic. Vaccines are the best way to protect yourself and those around you from the virus.

•    The COVID-19 vaccine has already saved thousands of lives by preventing the spread of the virus.

•    Vaccinated people are far less likely to get symptoms from COVID-19 … There’s growing evidence that vaccinated people are also less likely to pass the virus to others.

138    There was thus a reasonable basis, in October 2021, for the Channel 9 group to take the view that requiring its staff and contractors who attended its workplaces to be vaccinated for COVID-19 would help to reduce the scope for transmission of the virus to other workers. That understanding remained a reasonable one at least up to January 2022, when Channel 9 decided to terminate the Services Agreement for the reason (among others) that Mr Tredrea had not been vaccinated or shown any inclination to do so.

Clause 9.1(b)(v): refusal to carry out a “lawful and reasonable instruction” as a form of “serious misconduct”

Overlap with cl 9.1(a)

139    Clause 9.1(b)(v) also provided a ground for Channel 9 to terminate the Services Agreement if, as I have concluded above:

(a)    the first direction in its own right constituted a “reasonable” direction; and/or

(b)    the directions that imposed the Condition of Entry Policy amounted to a direction to be vaccinated for COVID-19 and that direction was “reasonable”.

Comments on Radio 5AA

140    Mr Tredrea participated in a weekly sports news segment on Radio 5AA, an Adelaide radio station, which was recognised by cl 4.3(a) of the Services Agreement.

141    In one of Mr Tredrea’s regular appearances on Radio 5AA, on the “FIVEaa Sports Show” on 3 September 2021, the topic of vaccination against COVID-19 was discussed. According to a transcript (which, having heard the relevant parts played in court, I am satisfied is accurate), the following exchanges occurred:

Host:     Tredders, welcome. What is your advice? What is your advice?

WT:     My advice? For what?

Host:    Get vaccinated? What about no jab no play, no jab no watch?

WT:     It's too early for that. Well it’s a trial. That’s the bit I sit back and I look at. You know, I think the AFL, they're doing what they did, they’re smart, they’ve opened the discussion and they’ve let it sit, but they know full well, once it is a trial vaccine and it's only emergency use so far...

Host:     Mmmhmm.

WT:     That you can't mandatory force people to do it and that's what the government are doing, they're making businesses do it, so, I actually worry here because the game is for the fans and we're still very early days in all this, um, but, to a certain extent, I think it's discriminatory because religious groups a lot won't have it, a lot of people aren't eligible for health reasons can't have it, right. I know, I know footy clubs have had complaints on this when stuff had come out and David Koche spoke about it recently and then also a lot of minors aren't. So I know it rules out half of my family so I think that's a pretty big call to make just yet.

…

Because everyone, this is what I think, everyone is entitled to what they want to do 'cause it's your body.

Host:     Absolutely, I get that.

WT:     That... I find ... you watch and look back and you can see online, the trolling of you should or you shouldn't or whatever, but it's everyone's individual situation and choice so if a player doesn't want to do it that's fine that's their decision you shouldn't be able to lose your employment for that.

Host:     Well I think that's where it's gonna end up.

WT:     But why?

Host:     Well Qantas has come out and said to all their employees if you don't get vaccinated we can't have you serve on our planes.

WT:     Why's that though?

Host:     Well I think it's smart.

WT:     I know, but a lot of the data is saying that even if you are, you can still catch it and carry it like a person who's not.

Host:     But the whole point is you're not gonna get as sick, you're not going to end up in hospital, you're not gonna end up in ICU.

WT:     But the thing is we don't know the long-term effects of it. I'm just putting out the other side.

Host:     Okay ... are you an anti-vaxxer?

WT:     No.

*Laughter*

WT:     No I’m not, I’m fully vaccinated.

Host:     Good boy.

Host:     Hey, who wins tonight?

WT:     But I'm not COVID vaccinated.

Host:     No. Who wins tonight?

142    On 6 September 2021 the “Footy Classified” program, which was broadcast on the Nine network, played a recording of part of what Mr Tredrea had said on 3 September and juxtaposed it with a comment apparently made by a current AFL player supporting vaccination for COVID-19. The host of “Footy Classified” then said:

Has Warren Tredrea completely failed to read the play here, a trial, I don't think we've got a trial going on and I don't think vaccination is being put out now for emergency use only. This is something that we're all pleading with and our very own network, the Nine network, is pleading with everyone to do. We've all taken a stand and we're realising this is the only way out of this. Does Warren Tredrea not understand what's going on, is he an anti-vaccinator, what's going on there?

143    Mr Tredrea appeared again on the “FIVEaa Sports Show” on 7 September 2021. The comment by the host of “Footy Classified” the previous day was replayed as part of the following exchange:

Host:     Tredders, you got exposed, if you like, on Footy Classified Channel 9 last night by Karo for your vaccination stance - want you to have a listen. Here's Karo now:

[recording played]

Host:     Now you deserve the right of reply.

WT:     I’m not going to get into this, but what I will say is, as I said last week on your show and that's what those edits are from, people have the right to make their own call, when we were discussing whether the AFL might make it mandatory.

Host:     Well it was in the context of players, that's right.

WT:     And that's the same as anyone walking the street of Adelaide, you've got your choice to make right. But it is a confidential right, absolutely, and in no I'm not an anti-vaxxer and I'm not a doctor and I'm not trying to make out I am so that's all I’ll say, people make your own choice do your own homework.

Host:     Yeah, good work.

144    The making of these statements by Mr Tredrea (the Radio 5AA comments) was pleaded in Defence [16.2.1] as “serious misconduct” within cl 9.1(b)(v). However, the point was not developed in Channel 9’s closing submissions.

145    The making of the statements is clearly not within the terms of cl 9.1(b)(v). That sub-paragraph refers to refusing to carry out a lawful and reasonable instruction. There is no evidence that Mr Tredrea was instructed by Channel 9 not to say any of the things set out above.

146    Clause 9.1(b)(v) is one of six sub-paragraphs in cl 9.1(b) which identify forms of conduct expressly included in the concept of “serious misconduct” (commission of which provided a basis for termination of the Services Agreement). The concept was not otherwise defined in the Services Agreement. The examples in cl 9.1(b)(i) to (vi) give an indication of the seriousness of conduct which was intended, by cl 9.1(b), to provide grounds for termination in its own right. They accord generally with the meaning that the expression “serious misconduct” would normally be given in a context such as the present.

147    For Mr Tredrea to express his view about the safety and efficacy of the Provisionally Approved Vaccines and the merits of requiring people to be vaccinated in order to attend work or other places was not “serious misconduct”. This is the case even if those opinions were not particularly well informed and some of Mr Tredrea’s arguments were not soundly based. The views that he expressed were seemingly genuinely held. His expression of them was not shocking or obscene and did not advocate violence.

148    Clause 9.1(b) was not engaged by the Radio 5AA comments, although it was engaged by other matters as outlined at [139] above.

Clause 9.1(c): breach of a material provision of the agreement

149    Channel 9 pleads in Defence [16.3] that the applicants breached material provisions of the Services Agreement in that Mr Tredrea:

(a)    failed to comply with reasonable directions as required by cl 3.11; and

(b)    failed to comply with Channel 9’s policies and procedures as required by cl 3.13, in that he did not comply with the Condition of Entry Policy.

Reasonable directions

150    The first point does not add anything of substance to the issues discussed above in connection with cl 9.1(a).

(a)    I have concluded that Mr Tredrea failed to comply with the first direction and that this engaged cl 9.1(a). If (as I have also concluded) the first direction was a “reasonable” direction, this failure involved a breach of cl 3.11 and therefore engaged cl 9.1(c) as well.

(b)    I have concluded above that the second to fifth directions were not “directions” within the meaning of that expression in cl 9.1(a) and in any event there was no failure to comply with them. However, if I am wrong about that—and the Condition of Entry Policy is properly characterised as a “direction” to Mr Tredrea to get vaccinated for COVID-19, which he did not do—I have also concluded that that direction was a reasonable one. On that basis, it was a direction with which cl 3.11 required Mr Tredrea to comply; and his non-compliance engaged cl 9.1(c) as well as cl 9.1(a).

Policies and procedures

151    Clause 3.13, in conjunction with cl 9.1(c), made Channel 9’s “policies and procedures” binding on Mr Tredrea in that the Services Agreement could be terminated without notice if he did not comply with the policies and procedures that were relevant to him. Read according to their terms, these provisions gave Channel 9 an extraordinary level of power because it could dictate the contents of its policies and procedures. On their proper construction, therefore, these provisions may be subject to some implicit limitations. For example, it might be found that the power to terminate did not arise as a result of breaches of policy or procedure that were de minimis or did not have a bearing on the provision of services by Mr Tredrea.

152    The “policy” that is potentially relevant here is the Condition of Entry Policy. Channel 9 alleges a breach of that policy by Mr Tredrea. As I have concluded above at [77], the better view is that there was no such breach: Mr Tredrea did not attempt to enter any Channel 9 workplace after the Policy came into effect.

153    The alternative reading of the Condition of Entry Policy is that any employee or contractor whose duties required them to be in the workplace should be vaccinated for COVID-19, at least if they did not have a medical exemption. It was faintly suggested that Mr Tredrea could perform his role as a presenter from a remote location, but this would plainly have involved significant disruption to the production of news bulletins. A camera crew would have had to be present in the room with Mr Tredrea, raising concerns about COVID-19 infection. Moreover, as Mr Pudney’s evidence explained, interplay between the presenters in the studio is an important aspect of producing a news bulletin that is appealing to viewers and attracts their trust. Mr Tredrea needed to be in the studio to provide the key services for which the Services Agreement provided.

154    Accordingly, if the Condition of Entry Policy were understood in this way, it would follow that Mr Tredrea did not comply with it. The Condition of Entry Policy, on this reading, was important to the circumstances in which Mr Tredrea’s services were to be provided (and indeed his ability to provide them at all) and the non-compliance was fundamental. On this reading of the Policy, therefore, cl 9.1(c) would provide an additional ground for termination of the Services Agreement.

Clause 9.1(f): failure to observe or perform duties or obligations

155    Defence [16.4] invokes cl 9.1(f), but only in connection with a failure to comply with lawful and reasonable directions. As pleaded, therefore, Channel 9’s reliance on cl 9.1(f) does not raise any issues that have not been canvassed above. Channel 9’s closing submissions were consistent with this position.

Clause 9.1(h) and (k): conduct which in Channel 9’s opinion could cause material damage to it (or other companies in the Group); damage, in Channel 9’s opinion, to its reputation or that of Mr Tredrea

156    Channel 9 invokes these subclauses in the following ways (Defence [16.5], [16.6]):

(a)    damage to Channel 9’s business interests and reputation from:

(i)    Mr Tredrea’s failure to comply with directions;

(ii)    the Radio 5AA comments;

(iii)    not being able to direct Mr Tredrea to attend briefings such as those held by football clubs; and

(b)    damage to the public image or reputation of Mr Tredrea from the same sources.

157    The argument that Channel 9’s reputation was damaged by Mr Tredrea’s failure to follow directions was not developed in submissions. There was some media commentary in Adelaide when Mr Tredrea began to be absent from evening news bulletins, with speculation that his vaccination stance had led to problems in his relationship with Channel 9. This, however, as discussed below, seems to have been prompted by public comments that Mr Tredrea had made rather than his non-compliance with any directions.

The Radio 5AA comments

158    The Radio 5AA comments have been set out above.

159    The statement that Mr Tredrea made on 3 September 2021 prompted at least one caller during a talkback segment later in the program to raise issues concerning vaccine mandates (including requirements for children to be vaccinated against various diseases in order to attend school). This was after one of the hosts of the program had asked Mr Tredrea on air whether he was an “anti vaxxer”, producing a qualified response from him. It was obvious that his comments had touched on issues concerning which some members of the community held strong views.

160    As noted above, the “Footy Classified” program a few days later drew attention to Mr Tredrea’s comments and made them the subject of strongly adverse commentary. That program is produced in Melbourne and apparently broadcast on Nine stations throughout Australia. One email to the Channel 9 South Australia newsroom from a viewer who had seen the segment, describing the employment by Channel 9 of “anti vaxxers like Warren Tredrea” as “a disgrace”, was in evidence. That, of course, is not necessarily evidence of a view widely held in the community; however, it indicates a basis on which Channel 9 was entitled to be concerned about Mr Tredrea’s comments alienating part of its audience.

161    At least some other media organisations were aware of the introduction of Channel 9’s Condition of Entry Policy and there was some level of interest in Adelaide media concerning Mr Tredrea’s position. On 1 December 2021, the day the Policy was due to come into operation, an article appeared on the Adelaide Advertiser’s website entitled “Will Warren Tredrea be a no-show at the Nine News desk tonight over station’s new Covid-19 vaccination policy”. This article was noticed by a Channel 9 employee, who sent a link to it to other employees including Mr Pudney. The next day, after Mr Tredrea had not appeared on Channel 9’s evening news bulletin, a further article appeared in the Advertiser entitled “Warren Tredrea and Nine News in crisis talks over station’s new Covid-19 vaccination policy”. The article referred to and quoted from earlier comments by Mr Tredrea including the Radio 5AA comments. That article garnered some negative comments from readers, which were circulated within Channel 9. An internal assessment by Channel 9 concluded: “90% supportive of our decision and 5% are absolutely scathing towards WT”. On the same day, a cartoon appeared in the Advertiser depicting the Channel 9 news desk with a large cartoon image of a germ or virus where Mr Tredrea would normally be seated. Mr Tredrea’s absence from the news desk, on the day Channel 9’s vaccine mandate came into effect, also drew attention on the Daily Mail website.

162    Mr Tredrea considered that he had been “smeared… as an anti-vaxxer”. He described the Footy Classified item as a “hatchet job”, noting that the program was produced by the Channel 9 group and broadcast on its stations. As to the latter concern, there was no evidence of anyone in Channel 9 having sought the inclusion of this item in order to damage Mr Tredrea. As to the former, it tends to confirm that Mr Tredrea’s public standing and reputation had been damaged as a result of the airing of the Radio 5AA comments. This is also confirmed by evidence that two other entities with which he had commercial relationships (Radio 5AA and Audi) sought to end their associations with him at around this time.

163    Mr Pudney, who presented as a careful and candid witness, said that he considered terminating the Services Agreement in September 2021 but decided not to do so. He continued to regard the Radio 5AA comments as a potential basis for termination in December 2021 and January 2022. Although there had been no repetition of the conduct by Mr Tredrea, Mr Pudney considered that the comments had “created permanent bruises”. Mr Pudney was at relevant times the News Director of Nine News Adelaide and thus Mr Tredrea’s supervisor. He had had primary carriage on Channel 9’s behalf of the negotiations leading to the execution of the Services Agreement. It was Mr Pudney who signed the termination letter. That letter stated on behalf of Channel 9 the opinion that Mr Tredrea had engaged in conduct which could cause material damage to its reputation and business interests and had damaged Mr Tredrea’s own public image and reputation.

164    I find that these opinions were held by Channel 9 and, if necessary, there was a reasonable basis for them. So far as the reputation and business interests of Channel 9 were concerned, it was at least awkward for one of its news presenters to have disappeared from his post in circumstances that appeared to have a direct connection with controversial comments that he had made and with responses to one of the most pressing issues facing the Australian community at the time. Further awkwardness arose from the fact that Channel 9 had made a decision to adopt a strong pro-vaccination position and one of its news presenters appeared to be taking a contrary position. This was in addition to the fact that Channel 9 was deprived of Mr Tredrea’s services as a news presenter for so long as the Condition of Entry Policy remained in operation and he refused to be vaccinated. So far as Mr Tredrea’s own public image and reputation were concerned, it was clear that he had made himself a controversial figure whose opinions and conduct were likely to attract strong condemnation from many if not most of Channel 9’s existing and potential viewers.

165    For these reasons, clause 9.1(h) and (k) were also engaged at the time when Channel 9 decided to terminate the Services Agreement.

REASONABLENESS OF THE DECISION TO TERMINATE

166    The applicants submitted that, even if one or more of the grounds for termination in cl 9.1 existed, Channel 9’s power to terminate the Services Agreement was to be understood as subject to an implied condition of reasonableness. Reference was made in this connection to Bundanoon Sandstone Pty Ltd v Cenric Group Pty Ltd [2019] NSWCA 87; 373 ALR 591 at [154]–[159] (Gleeson JA, Meagher and McCallum JJA agreeing).

167    The respondents’ first response to this argument is that the actual exercise of the power in cl 9.1 of the Services Agreement is not impugned by the SOC. This is correct. The critical section of the SOC ([16]–[19]) is headed “No grounds to terminate”; and the pleadings contained therein allege the absence of power, not the unreasonable exercise of a power that existed. This was apt to lead Channel 9, in considering what evidence it should lead, to focus on establishing that one or more of the grounds for termination in cl 9.1 existed, rather than the reasoning process leading from the existence of grounds to its decision that termination was warranted.

168    In any event, the evidence does not show that the decision to terminate the Services Agreement was anything other than a reasonable one, in the sense of a bona fide attempt to protect Channel 9’s legitimate interests in response to the circumstances that had brought cl 9.1 into play. The following points are relevant here:

(a)    Channel 9 had a vital interest in its workers being able to continue attending their places of work (or in some States return to work), with minimal risk to those workers and minimal disruption of its operations. One aspect of ensuring minimal risk and disruption was having due regard to the wishes and concerns of the significant majority of the workforce who wanted the people with whom they had contact to be vaccinated. The circumstances of the pandemic had changed to some degree by January 2022 (in that the Omicron variant of COVID-19 was becoming the dominant strain), but this did not affect the nature of the challenge in any fundamental way.

(b)    Mr Tredrea had been directed to confirm his vaccination status in mid October 2021 and had not done so by 1 December. He had still not done so in early January 2022 when the decision was made. A natural inference (especially in the light of the Radio 5AA comments) was that he was not vaccinated and had no intention of being vaccinated, but did not wish to confirm that in writing to Channel 9.

(c)    Refusal to provide this information undermined Channel 9’s efforts to administer its workplace and its workforce in Adelaide. In view of the Condition of Entry Policy that the Channel 9 group had adopted nationally, all that could be done after 1 December was to instruct Mr Tredrea not to come to the studio, which meant that he could not perform the services for which he had been retained. The position had not changed by 4 January and there was nothing to indicate that it was going to change in the near future.

(d)    Following the Radio 5AA comments and the responses that they produced, Mr Tredrea was a controversial figure who was discussed in other media outlets in a manner that was unwelcome to Channel 9. Rather than having the studied neutrality of a newsreader, he was associated in public discourse with an unpopular viewpoint on an issue apt to excite strong emotions. It did not help that the viewpoint with which he was associated was diametrically opposed to the public position of Channel 9 itself.

CONCLUSION ON THE CONTRACT CLAIM

169    For the reasons explained above, the termination of the Services Agreement by Channel 9 on 4 January 2022 was authorised by cl 9.1 of the Agreement. There was no breach or repudiation of the Services Agreement by Channel 9 and no entitlement to relief arises.

DAMAGES

170    If the applicants’ contract claim had succeeded, the appropriate remedy would be damages.

171    The applicants submitted that damages should be assessed in the amount of $1,481,104 on the basis that, if Channel 9 had not terminated the Services Agreement in January 2022, it would have run its course (until November 2022) and there was a “very high probability of continued renewals” of the Agreement. It was submitted (referring to Walker v Citigroup Global Markets Australia Pty Ltd [2006] FCAFC 101; 233 ALR 687 at [84]–[87]) that it should be inferred that:

(a)    each renewal would be for two years;

(b)    each renewed contract would involve a small increase in remuneration; and

(c)    at each stage there would be a reduction in the probability of renewal, to allow for contingencies and the vicissitudes of life, reducing to a probability of zero at age 55.

172    The applicants’ calculation involved an 80 percent probability of renewal in August 2022, 65 percent in August 2024, 50 percent in August 2026, 35 percent in August 2028, 20 percent in August 2030 and 5 percent in August 2032. (I infer that August was suggested as the relevant month because the Services Agreement was executed in August 2020, although it came into effect on 1 December.)

173    Channel 9 contested this assessment on two bases.

Likelihood of renewal

174    Consideration of the likelihood of further services agreements between Channel 9 and the applicants, for the purpose of assessing damages, involves supposing that Channel 9 did not terminate the Services Agreement in January 2022 (or thereafter) while holding all other facts the same. Thus, the scenario to be considered is that the Services Agreement remained on foot in the following circumstances:

(a)    Mr Tredrea had not complied with the direction to inform Channel 9 of his vaccination status, at least up to 4 January 2022. There is no evidence to indicate that he would have remedied this non-compliance, unless he was vaccinated for COVID-19 with a Provisionally Approved Vaccine (which seems very unlikely) or obtained a recognised form of medical exemption (which he had not managed to do, despite insisting that he was making efforts to do so, between October 2021 and January 2022).

(b)    Mr Tredrea had taken a public position on the issue of vaccination that was at odds with Channel 9’s public position and its internal policies.

(c)    In the aftermath of the Radio 5AA comments, Mr Tredrea was being described (and to some extent ridiculed) as an “anti-vaxxer”. Some viewers thought that his position was reprehensible and thought less of Channel 9 for employing him.

(d)    It was at least complicated and expensive, and arguably impossible, for Mr Tredrea to perform his role as a sports news presenter to Channel 9’s satisfaction from a location outside the studio or in a fully “socially distanced” way. His services and his value to Channel 9 were thus severely compromised, if not lost altogether, so long as (i) he remained unvaccinated and (ii) the Channel 9 group continued to require vaccination as a condition of entry to its members’ premises. (The evidence did not show when, if at all, the Channel 9 group relaxed this policy.)

(e)    Mr Pudney’s evidence also canvassed his appreciation at the time of the risks associated with Mr Tredrea returning to the newsroom in 2022. It is not clear whether that was a serious prospect in the light of Channel 9’s Condition of Entry Policy. In Mr Pudney’s estimation, Mr Tredrea was more likely to contract COVID-19 than an unvaccinated person (and therefore more likely to infect colleagues and more likely to be away from work). That had the potential to disrupt the operations of the newsroom as well as having an impact on other staff and morale.

(f)    There had also been occasions when Mr Tredrea was directed to present news items from other locations, such as sporting venues, in and around Adelaide. Mr Pudney regarded this as a significant aspect of his role. Each of those venues had its own rules and practices relating to access during the COVID-19 pandemic. There was at least scope for doubt as to whether, not being vaccinated against COVID-19, Mr Tredrea would be able to broadcast from these venues.

175    In addition, Mr Pudney gave evidence (which I accept) that he had had concerns for some time about Mr Tredrea’s performance as a news presenter. In the negotiation of the Services Agreement in 2020, Mr Pudney had driven a hard bargain in terms of the level of remuneration and had treated with equanimity the prospect that this might cause Mr Tredrea to “walk away”. Concerns about his news reading performance—in that he sometimes stumbled in reading a prepared script on air—persisted during the term of the Services Agreement.

176    In the light of these matters, Mr Pudney’s evidence was that he would “not have supported any extension of [Mr Tredrea’s] services” from later in 2022 when the Services Agreement was due to expire. While that statement involves a degree of speculation, it must be given significant weight. As News Director, Mr Pudney would have had at least an important say in any decision as to whether to acquire Mr Tredrea’s services for a further term. Meanwhile, the other evidence provides strong reasons to infer that any decision maker in late 2022 would have been at least hesitant about renewing the agreement with Mr Tredrea.

177    I would therefore assess the probability of renewal of the Services Agreement in August 2022, had the Agreement run for its full term, as 30 percent. On that basis, and otherwise accepting the applicants’ general approach, I would assess damages as follows.

178    However, the point does not end there. It is trite to observe that the purpose of damages for breach of contract is to place the claimant in as near a position as possible to that which they would be in if the contract had been performed. Thus, generally at least, damages are not awarded for not doing that which there was no obligation to do: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 92–93 (Mason CJ and Dawson J) (Amann Aviation). Performance of the Services Agreement would have seen Mr Tredrea remunerated at the agreed rate until November 2022, unless the Agreement was terminated before then with notice under cl 9.2. There was no contractual promise to renew the contract or extend it beyond that time. Loss of a chance to obtain a new contract is thus difficult to fit within the ordinary concept of expectation damages that lies at the heart of the assessment exercise. Nor is it a loss incurred by the applicants in reliance on the expectation that the contract would be performed, a specific expense for which restitution is warranted, or a positive loss occurring as a consequence of breach that calls for indemnity.

179    Indeed, it has not been established that the prospect of a further contract being entered into following the expiry of the Services Agreement was reduced to any particular degree by the action which (I am assuming in this part of the reasons) constituted the breach. I have concluded above that that prospect was fairly low regardless of Channel 9’s decision to terminate. The termination itself did not in any legal sense prevent a new contract being entered into between the parties at some future time. As a practical matter, the decision to terminate might have affected the parties’ attitudes to each other and thereby made Mr Tredrea less likely to offer his services to Channel 9, or made Channel 9 less likely to be interested in such an offer; however, this is no more than speculation. “Where compensation is sought in respect of the deprivation of a possible benefit which is dependent upon the unrestricted volition of another it may be impossible to say that any assessable loss arises from the breach”: Amann Aviation at 93 (citing Fink v Fink (1946) 74 CLR 127 at 143 per Dixon and McTiernan JJ and Chaplin v Hicks [1911] 2 KB 786 at 792–793 per Vaughan Williams LJ).

180    For these reasons, I would not include any allowance for potential renewed contracts in the assessment of damages. The upper limit of damages (subject to the issues to be discussed next) is thus the remuneration that Mr Tredrea would have earned during the remaining term of the Services Agreement.

Clause 14.4

181    Clause 14.4 of the Services Agreement was as follows:

14.4 Limitation on Damages

Any damages to which the Company and the Key Person may be entitled arising out of a breach of any express or implied term of this Agreement:

(a)     are not available for personal illness or injury or non-pecuniary loss (including, but not limited to hurt, humiliation, distress and disappointment); and

(b)     are limited to the damage which the innocent party would have suffered if the party in breach had, instead of breaching the Agreement, lawfully terminated the Agreement at the earliest possible opportunity; and

(c)     will not include any consequential damage, including but not limited to any direct or indirect loss of opportunity to earn remuneration through work in the media industry or in a position substantially similar to the position occupied by the Key Person during the Term.

182    Channel 9 submits that cl 14.4 is relevant in three ways.

(a)    Damages for breach of the Services Agreement are expressly limited to the damage that the applicants would have suffered if, instead of breaching the Agreement, Channel 9 had lawfully terminated it at the earliest possible opportunity.

(b)    Clause 14.4 precludes any right to damages beyond the remaining term of the Services Agreement, including any consequential losses.

(c)    Clause 14.4 reinforces the principle upon which assessment of contractual damages would normally proceed, that damages are assessed on the basis of what Channel 9 promised to do and no more.

183    The last of these propositions alludes to what is often termed the principle of least burdensome performance or the minimum obligation rule: see, eg, TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 150, 153–155 per Hope JA; Amann Aviation at 92–93 per Mason CJ and Dawson J. If there are two or more ways in which the defendant might have performed the contract, damages are assessed on the footing that performance would have occurred in the manner least burdensome to the defendant. At least arguably, this principle applies without needing to be incorporated in an express contractual term. In some cases concerning contracts of service it has therefore been held that damages for wrongful termination will only cover lost wages up to the end of the notice period required for lawful dismissal (eg Lavarack v Woods of Colchester Ltd [1967] 1 QB 278 quoted in Berry v CCL Secure Pty Ltd [2020] HCA 27; 271 CLR 151 at [38]). General principle does not take Channel 9 that far in the present case, because the power to terminate with notice under cll 9.2 and 9.3 of the Service Agreement arose only in specific circumstances. I do not accept Channel 9’s submission that Mr Tredrea’s unvaccinated status prevented him from working in a way that engaged cl 9.2.

184    However, the express exclusion of “consequential damage” by cl 14.4(c) supports the conclusion I have reached above that damages do not lie for the loss of a chance to enter into further contracts. (I reject the applicants’ submission that the example given in cl 14.4(c) shows that the words “consequential damage” have a narrower meaning than “consequential loss” such that the former concept excludes loss of opportunity to renew. The example itself is broad (any loss of opportunity in the media industry or in a position substantially similar to Mr Tredrea’s existing position) and is expressed to be without limitation.)

185    In addition to excluding consequential damage, cl 14.4(b) limits any potential damages to “the damage which the [applicants] would have suffered if [Channel 9] had, instead of breaching the Agreement, lawfully terminated the Agreement at the earliest possible opportunity”.

186    Read literally, this provision has anomalous results which the parties to the Services Agreement are unlikely to have intended. Plainly enough, cl 9.1 only supported the lawful termination of the Services Agreement if one of paras (a) to (e) was made out. So too, cl 9.2 did not provide a general power of termination: it applied only in circumstances of illness or incapacity. Clause 9.3 also provided a power to terminate (with notice) in carefully defined circumstances. The earliest possible opportunity for lawful termination is therefore difficult to fix as a hypothetical event. Potentially, no circumstances permitting termination might have arisen during the course of the Services Agreement. Next, the clause according to its terms does not fix a hypothetical set of events as the counterfactual, with which the actual events are compared in order to assess damages. Instead, read literally, it calls for identification of the loss which would have been caused by lawful termination at the earliest opportunity, and fixes that loss as the limit for damages for breach. This makes the limit of damages depend quite fortuitously on when, if at all, lawful termination could have occurred. Whether (for example) cl 9.2 would have been enlivened during the term of the Services Agreement can only be guessed at.

187    In my view, the only way to give efficacy to cl 14.4(b) is to read it as providing for damages for breach of the Services Agreement to be assessed on the basis that, if the relevant breach had not occurred, the contract would have been lawfully terminated at the first opportunity. That opportunity should be understood to be one arising, counterfactually, under cl 9.2. This is because cl 9.1 permits termination without notice, which would make the quantum of damages zero; and any implied right of termination (which was not explored in the submissions) would involve a reasonable notice period, leading to further indeterminacy in the operation of the clause. Accordingly, the damages to which the applicants are entitled, if the purported termination by Channel 9 on 4 January 2022 constituted a repudiation of the Services Agreement, should be assessed on the basis that, if the repudiation had not occurred, Channel 9 would have (validly) given notice under cl 9.2 on that day. The quantum is therefore the equivalent of one month’s remuneration under the Agreement plus interest.

THE IC ACT CLAIM

188    The important provisions of the IC Act for present purposes are ss 12, 15 and 16. They provide, relevantly, as follows.

12  Court may review services contract

(1)     An application may be made to the Court to review a services contract on either or both of the following grounds:

     (a)     the contract is unfair;

     (b)     the contract is harsh.

…

(2)     An application under subsection (1) may be made only by a party to the services contract.

(3)     In reviewing a services contract, the Court must only have regard to:

(a)     the terms of the contract when it was made; and

(b)     to the extent that this Part allows the Court to consider other matters —other matters as existing at the time when the contract was made.

…

15  Powers of Court

…

(3)     If the Court forms the opinion that a ground referred to in subsection 12(1) is established in relation to the whole or a part of the services contract, the Court must record its opinion, stating whether the opinion relates to the whole or a specified part of the contract.

…

16  Orders that Court may make

(1)     If the Court records an opinion under section 15 in relation to a services contract, the Court may make one or more of the following orders in relation to the opinion:

     (a)     an order setting aside the whole or a part of the contract;

     (b)     an order varying the contract.

(2)     An order may only be made for the purpose of placing the parties to the services contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

...

(4)     An order takes effect on the date of the order or a later date specified in the order.

...

189    A “services contract” is defined by s 5(1) as follows:

(1)     A services contract is a contract for services:

(a)     to which an independent contractor is a party; and

(b)     that relates to the performance of work by the independent contractor; and

(c)     that has the requisite constitutional connection specified in subsection (2).

190    The term “independent contractor” is not limited to a natural person (s 4) but is not otherwise defined. The person performing work under the Services Agreement in the present case was Mr Tredrea, and the Services Agreement was therefore a “services contract” as defined on the footing that he was an “independent contractor”. The “constitutional connection” referred to in s 5(1)(c) was satisfied in the present case if Tredders Investments, which was also a party to the Services Agreement, was a “constitutional corporation” (ie, a corporation to which s 51(xx) of the Constitution applied). Having regard to the terms of s 5(2), it was clearly not satisfied on any other basis.

191    The other provision that should be noted is s 11, which excludes two kinds of “services contract” from the coverage of ss 12-16. One of these is where the “independent contractor” is a body corporate (s 11(1)(b)). However, in the present case, having regard to s 5(1), it appears that it was Mr Tredrea, rather than Tredders Investments, who was the “independent contractor”. I therefore proceed on the basis that the Services Agreement was capable of being reviewed under s 12.

192    The IC Act claim, as pleaded, is predicated on the Services Agreement having been terminated for non-compliance with a “direction that [Mr Tredrea] be vaccinated”.

(a)    The particulars of the allegation that the Services Agreement was unfair or harsh, within the meaning of s 12 of the IC Act (SOC [22]), are limited to a proposition that it was unfair or harsh for the Agreement to have the potential for Channel 9 to give “the Direction”. “The Direction” was defined earlier in the SOC as a direction to the applicants “that, in order for [Mr Tredrea] to attend a site or location where work is being performed … [Mr Tredrea] had to provide evidence to the respondent that he was ‘fully vaccinated against COVID-19’”.

(b)    However, the order sought under s 16 of the IC Act (SOC [23]) is an order varying the Services Agreement to the effect that compensation becomes payable to the applicants “if the respondent takes any action to terminate the Services Agreement on the ground that Mr Tredrea failed to comply with a direction that [Mr Tredrea] be vaccinated in a manner akin to the Direction” (emphasis added).

193    For reasons explained above, the preferable understanding is that there was no “direction”, in the sense used by cl 9.1(a) of the Services Agreement, to be vaccinated, and no lack of compliance by Mr Tredrea with a “direction” that he not attend the workplace if he did not have evidence of being vaccinated. On that understanding, the IC Act claim does not avail the applicants.

194    Further, even if the Condition of Entry Policy is construed as involving a “direction” with which Mr Tredrea did not comply, other grounds for termination were present, with which the claim does not grapple. In particular:

(a)    Mr Tredrea had not complied with the (in my view unexceptionable) direction to inform Channel 9 as to his vaccination status, which engaged cl 9.1(a); and

(b)    Channel 9 had formed the opinion that conduct of Mr Tredrea had the potential to damage its reputation and business interests (cl 9.1(h)) and had damaged his own public standing (cl 9.1(k)).

195    Even if it was harsh or unfair for the Services Agreement to provide for termination on the basis of non-compliance with a direction to be vaccinated for COVID-19, it would be incongruous to amend the Agreement so as to provide for compensation in the event of its termination where the termination was supported by other grounds as well. It would only be appropriate to provide for compensation where the sole ground for termination was non-compliance with the direction being complained of.

196    The broad terms of the order proposed in the applicants’ closing submissions do not overcome these problems. The proposed order is that the Services Agreement be varied by inserting a further cl 9.4 which would read:

Upon termination hereof, Nine will pay to the Company the sum of $1,481,104, and upon such payment all rights and liabilities of the parties hereto arising pursuant to this contract will be released and discharged.

197    This proposed new subclause would apply in the event of termination of the Services Agreement on any ground or grounds. It therefore does not accord with the pleaded case. (In other respects, while the form of the proposed order involves some incongruity, it appears to represent an accepted manner of reconciling s 16(4) of the IC Act (which allows orders only with prospective effect) with the acceptance in the case law that a contract that has already ceased to be operative can be the subject of review under the Act. See Informax International Pty Ltd v Clarius Group Ltd [2012] FCAFC 165; 207 FCR 298 at [107]-[181] (Besanko, Jagot and Bromberg JJ), especially the reference at [132]-[133] to Buchmueller v Allied Express Transport Pty Ltd [1999] FCA 319; 88 IR 465.)

198    To the extent that the Services Agreement empowered Channel 9 to give a direction to Mr Tredrea to the effect that he must either obtain vaccination against a novel and highly transmissible virus that had the potential to cause serious illness or not come to work, it was clearly not harsh or unfair. However, as I have emphasised above, if the Condition of Entry Policy is understood in that way, it was not breached by Mr Tredrea and was not one of the grounds that authorised termination of the Services Agreement. No occasion arises to vary the Services Agreement in response to that circumstance.

199    If the Condition of Entry Policy is construed as involving a direction simply to be vaccinated against COVID-19, it might test the limits of the power to issue directions (under cl 3.11 or implicitly). Instructing an employee or contractor to undergo a medical procedure, as distinct from regulating entry to a workplace, is a strong and arguably extreme measure. (I note, again, that Channel 9 did not assert any power to do this and it is not my understanding of the Condition of Entry Policy.) To the extent that the Services Agreement allowed a direction of that character to be given to Mr Tredrea there might be a substantial argument that it was harsh or unfair and should be varied. However, the case advanced by the applicants seeks to amend the power of termination in cl 9 rather than the power to give directions. If Channel 9 had power to give a particular direction to Mr Tredrea (even one that can be considered draconian), I do not think it was harsh or unfair to permit Channel 9 to terminate the Services Agreement in response to disobedience of that direction.

200    For all of these reasons, the claim under the IC Act must be rejected.

DISPOSITION

201    The application must be dismissed.

202    There is no apparent reason why costs should not follow the event. However, the applicants’ written submissions indicated their desire to be heard on costs. My orders will therefore allow the parties an opportunity to file written submissions should any party seek an alternative order as to costs.

Associate:

Dated:    14 March 2024