Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    Paragraphs 2 and 3 of the orders made on 20 September 2024, as amended on 24 October 2024, be discharged.

3.    The reasons for these orders not be published, other than to the parties, until after 4.30pm (AWST) on 7 March 2025.

4.    The question of the costs of the proceeding be reserved.

5.    By 4.30pm (AWST) on 12 March 2025 the respondent file and serve any minute of proposed consent orders or, failing agreement, the parties file and serve competing minutes of proposed orders, concerning the costs of the proceeding.

6.    Subject to paragraph 5 of these orders:

(a)    by 4.30pm (AWST) on 12 March 2025 the respondent file and serve a written outline of submissions (limited to 5 pages) and any materials in support of its minute of proposed orders concerning the costs of the proceeding.

(b)    by 4.30pm (AWST) on 26 March 2025 the applicant file and serve a written outline of submissions (limited to 5 pages) and any materials in support of his minute of proposed orders concerning the costs of the proceeding.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    Section 1317AD(1) of the Corporations Act 2001 (Cth) provides that a court may make an order for compensation or other relief under s 1317AE in relation to a person if that person engages in conduct that causes detriment to another person (whistleblower) and when the person engages in the detrimental conduct that person believes or suspects that the whistleblower made, may have made, proposed to make or could make a whistleblower disclosure that qualifies for protection under Pt 9.4AAA and that belief or suspicion was the reason or part of the reason for the detrimental conduct. Section 1317AD(2B) provides that in proceedings in which a whistleblower seeks an order under s 1317AE in relation to another person, the whistleblower bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the other person has engaged in detrimental conduct. If that onus is discharged, then the other person bears the onus of proving that the claim is not made out.

2    The applicant (Mr Reiche) was an employee of the respondent (Neometals). Mr Reiche claims compensation and other relief against Neometals under s 1317AD(1) and s 1317AE of the Act. He alleges that he made six disclosures of information to Neometals that qualify for protection under Pt 9.4AAA and that Neometals engaged in detrimental conduct in that it made a decision to make Mr Reiche’s role redundant, thereafter terminated Mr Reiche’s employment with immediate effect, rejected a claim Mr Reiche had made for time-in-lieu (TIL) and bullied and harassed Mr Reiche after he had made the fifth and sixth alleged disclosures. Neometals admits that the decision to make Mr Reiche redundant and to terminate his employment with immediate effect was detrimental conduct, but it denies that rejection of the TIL claim was detrimental conduct and that it bullied or harassed Mr Reiche.

3    Mr Reiche is a citizen of Germany. As the termination of his employment with immediate effect had an adverse impact on his visa status and part of the relief he seeks is reinstatement of his employment, the matter was heard on an expedited basis. The issues were determined on concise statements, augmented by affidavits and there was a truncated and limited process of discovery. The principal issues in the proceeding concern whether any person who made or was involved in making decisions that resulted in the redundancy, termination, rejection of the TIL claim and other alleged detrimental conduct believed or suspected that there was an actual or potential whistleblower disclosure by Mr Reiche when the decisions were made. Ancillary issues concern whether rejection of the TIL claim was a detriment to Mr Reiche and whether Neometals had engaged in conduct that caused bullying and harassment of Mr Reiche.

4    Except for the allegation of bullying and harassment, Neometals accepted that Mr Reiche had satisfied the evidentiary threshold of adducing or pointing to evidence that suggests a reasonable possibility that Neometals engaged in detrimental conduct. Therefore, for the most part, the question for determination is whether Neometals has discharged the onus of proving that Mr Reiche’s claim under s 1317AD(1) is not made out. Here, the focus of the evidence was on the state of mind and reasons of the natural persons involved in Neometals’ decision-making.

5    For the reasons that follow, I am not satisfied that Mr Reiche adduced or pointed to evidence that suggests a reasonable possibility that Neometals engaged in conduct that caused detriment to him in the form of bullying or harassment. I am also not satisfied the rejection of the TIL claim was, in the circumstances of this case, detrimental conduct. In any event, I have concluded that Neometals has discharged its onus of proof and has demonstrated that Mr Reiche’s claim under s 1317AD(1) is not made out. In short, a belief or suspicion that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA of the Act was not the reason or part of the reason his role was made redundant, his employment was terminated with immediate effect or his TIL claim was rejected.

Issues

6    Identification of the issues in the proceeding was ordered to be by concise statements. The parties were also ordered to file an agreed list or competing lists of principal legal and factual issues in dispute and that require determination before the commencement of the trial. Neometals filed that list, but Mr Reiche failed to comply with the order.

7    Insofar as Mr Reiche’s case is concerned, I consider it to be confined to the allegations raised in his concise statement. However, where it is evident that the facts deposed in the affidavit filed in support of his originating process relate to the issues raised in his concise statement and no objection to the receipt of that evidence was taken on the grounds of relevance, I have treated the facts deposed as particulars of the allegations raised in his concise statement. As a consequence, the allegations Mr Reiche made of detrimental conduct in the category of bullying or harassment were somewhat expanded. Likewise, I have treated the facts deposed in Neometals’ affidavits as particulars of its defence. Otherwise, the extent to which I have accepted the facts deposed in the affidavits is addressed later in these reasons when setting out the findings of fact.

Background

8    To understand the issues that arise for determination it is necessary to explain some of the non-controversial background to the proceeding.

9    Neometals is registered in Australia and is listed on the Australian Securities Exchange. A related company, ACN 630 589 507 Pty Ltd, is the owner of certain technology for lithium-ion battery recycling comprised of patents and knowhow. Neometals entered into a joint venture with SMS Group GmbH, a German company, for the commercialisation of that technology. Neometals and SMS incorporated Primobius GmbH, also a German company, as the vehicle through which to conduct the joint venture. Neometals, ACN 630, SMS and Primobius have entered into a formal shareholders agreement that governs the manner in which Primobius and the joint venture is to be conducted.

10    Primobius has an advisory board comprised of two SMS appointees and two Neometals appointees. It also has a management board comprised of an SMS appointee, a Neometals appointee and a third person. In October 2023 Neometals employed Mr Reiche in the role of head of recycling. As part of that role, Mr Reiche was appointed as a managing director of Primobius and Neometals’ representative on the management board of that company. At all material times, the SMS appointee was Horst Krenn and the third person was Dr Michel Siemon.

11    During Mr Reiche’s employment, the joint venture was in the process of constructing a battery recycling plant in Germany for Mercedes-Benz known as the MURG project. A company related to SMS, SMS Group Technologies Austria (SAT Austria), and Primobius had entered into an agreement by which SAT Austria was performing the engineering, procurement and construction for the MURG project. Primobius had employees that it employed directly and it also had secondees provided by SMS and Neometals. The Primobius operation was conducted in Germany and Mr Reiche was located in Perth, Western Australia.

12    Steven Cole is the non-executive chair of Neometals and is a Neometals appointee on the Primobius advisory board. Christopher Reed is the chief executive officer of Neometals and a Neometals appointee on the Primobius advisory board. Dr Jennifer Purdie was a non-executive director of Neometals. From May 2024 Dr Purdie was the chief operations officer and an executive director of Neometals. Lee Guthrie and Douglas Ritchie are non-executive directors of Neometals. Christopher Kelsall is the chief financial officer of Neometals. Mr Kelsall commenced as CFO on 1 July 2024. Before his appointment, Jason Carone was CFO. Cathal Smith was general (legal) counsel of Neometals. He held that role for a short period before resigning. He continued to provide services as in-house legal counsel on contract for some time after his resignation including during the proceeding. Amanda Di Virgilio was employed by Neometals as people and culture manager. Ms Di Virgilio’s role was also made redundant and her employment terminated. Merryl Gray was employed by Neometals before Mr Reiche’s employment. Ms Gray had been Neometals’ appointee on the Primobius management board before Mr Reiche.

Mr Reiche’s case

13    Mr Reiche alleges that he made six disclosures of information that qualified for protection under Pt 9.4AAA of the Act. These relate to the management, business or affairs of Primobius.

First alleged qualifying disclosure – DMF reverse engineering

14    As part of construction of the MURG plant it was necessary for SMS to procure certain dual media filters (DMF). It was initially proposed that the DMF would be acquired from and supplied by SpinTek Filtration Inc.

15    Mr Reiche alleges, in effect, that he had reasonable grounds to suspect that SMS, through Mr Krenn and with the assistance of a former employee of Neometals, collaborated with DSB Anlagenbau GmbH to unlawfully acquire and exploit the proprietary intellectual property of SpinTek to enable Primobius to acquire DMF from DSB for a lower cost that acquiring them from SpinTek.

16    Mr Reiche alleges that on 10 April 2024 he had a conversation with Mr Reed during which Mr Reiche informed Mr Reed of his concern, in substance, that Primobius was knowingly concerned in the receipt of DMF that DSB had reverse engineered using SpinTek’s intellectual property.

Second and third alleged qualifying disclosures – Krenn conflict of interest and Primobius strategic risks

17    Mr Reiche alleges, in substance, that he had reasonable grounds to suspect that Neometals was exposed to certain strategic risks in relation to the joint venture with SMS and its shareholding and interest in Primobius. Mr Reiche alleges that he disclosed these strategic risks to the Neometals board at meetings in February and March 2024. Mr Reiche alleges that he disclosed a conflict of interest of Mr Krenn in that he was a managing director of Primobius and SAT Austria, that Primobius was exposed to financial risks because of asymmetrical contracts that disproportionately favoured SMS (SAT Austria) over Primobius, the risk of a cash call, initiated by SMS and designed to dilute Neometals’ interest in Primobius, a lack of open-book arrangements with SMS (SAT Austria) in relation to the MURG project, and that Primobius was losing control over critical decisions, including contract execution and engineering scope for projects like the MURG project. These risks were compounded by the power imbalance in the joint venture, where SMS’s influence was dominating the strategic direction of Primobius. Mr Reiche was of the view that Neometals was, in effect, outvoted within Primobius.

Fourth and fifth alleged qualifying disclosures – simulated signature on Primobius purchase order

18    Mr Reiche alleges that a document (acceptance of a purchase order from Mercedes-Benz in relation to the MURG project) was required to be signed by two managing directors of Primobius. At the relevant date of the document, it was to be signed by Mr Krenn and Ms Gray.

19    Mr Reiche alleges, in substance, that he had reasonable grounds to suspect that the signature of Ms Gray on that document was ‘forged’ based on a handwriting expert report that he commissioned and obtained after he became suspicious of the veracity of Ms Gray’s signature on the document.

20    Mr Reiche alleges that on 10 April 2024 he disclosed the ‘forgery’ to Mr Cole. Mr Reiche alleges that on 11 April 2024 he disclosed the same information to Mr Reed.

Events after the first to fifth alleged qualifying disclosures

21    Mr Reiche alleges that after the first to fifth alleged qualifying disclosures no action was taken by Neometals, either through its board or by individual officers, to address the matters raised including the strategic risks, governance issues, reverse engineering, conflicts of interest and forgery.

22    Mr Reiche alleges that, after the appointment of Dr Purdie as COO in May 2024, she acted toward him in an unprofessional manner, being dismissive and seemingly unconcerned with matters of technical accuracy, and Mr Reiche felt bullied and harassed when dealing with Dr Purdie.

23    Mr Reiche alleges that Dr Purdie’s conduct included the following.

(a)    Dr Purdie disregarded Mr Reiche when he ought to have been copied or included in Neometals’ affairs.

(b)    Dr Purdie recommended that employees, of whom Mr Reiche was line manager, bypass him.

(c)    Dr Purdie removed Mr Reiche’s responses from email chains in her communications with employees of whom Mr Reiche was line manager.

(d)    Dr Purdie arbitrarily and without consultation terminated a contractor, Michael Prassas, who was providing valuable services and of whom Mr Reiche was line manager.

(e)    Between June and August 2024 Dr Purdie instructed Mr Reiche to revise Neometals’ risk register and, in so doing, ignored feedback from Mr Reiche about serious risks associated with that course of action and, thereby, Dr Purdie dramatically increased Mr Reiche’s workload and prevented the timely completion of the risk register.

(f)    Dr Purdie’s conduct concerning the risk register compromised the risk management process, undermined transparency, and placed Mr Reiche at risk of blame for risks that arose from decisions predating his employment.

Sixth alleged qualifying disclosure – 9 July letter

24    Mr Reiche alleges that on 9 July 2024 he met with Mr Smith and provided him with a letter dated 9 July 2024 that, in its terms, stated that it was a disclosure under Pt 9.4AAA. Further, the letter details, amongst other things, the matters set out in the first to fifth alleged qualifying disclosures. Mr Reiche alleges that on 11 July 2024 he had a further meeting with Mr Smith and Mr Kelsall.

Events after the sixth alleged qualifying disclosure

25    Mr Reiche alleges that in July 2024 Dr Purdie interfered with Mr Reiche’s obligations as managing director of Primobius by intervening, without any basis, in the process for recruitment of two roles within Primobius that Mr Reiche had initiated.

26    Mr Reiche alleges that in August 2024 Mr Cole gave a report to the Primobius advisory board with respect to a ‘Health Check’ audit and indicated that the report ‘raised no red flags’ and provided recommendations only rather than identifying any major issues. Mr Reiche alleges that Mr Cole’s characterisation of the Health Check report was misleading because Mr Reiche had informed him that the Health Check report revealed matters of real concern that required action.

27    Mr Reiche alleges that on 26 July 2024, without notice, justification or explanation, his delegated authority to approve payment for invoices without board approval was reduced from AUD100,000 to AUD25,000.

28    Mr Reiche alleges that on 6 August 2024 he was excluded by Mr Cole and Dr Purdie from a leadership event with the two other managing directors of Primobius (Mr Krenn and Dr Siemon) during a visit by them to Australia.

29    Mr Reiche alleges that on 17 and 19 August 2024 he sent Mr Smith and Mr Kelsall emails following up on the 9 July letter and outlining incidents and health impacts upon him that he alleges occurred after he provided them with the letter. On 19 August 2024 he met with Mr Smith and Mr Kelsall to discuss the next steps regarding the disclosures in the 9 July letter. On 20 August 2024 Mr Reiche sent Mr Smith and Mr Kelsall an email indicating, in effect, that he had provided them with further information and he requested that the investigation proceed in accordance with Neometals’ whistleblower policy.

30    Mr Reiche alleges that on 19 August 2024 he submitted a claim for 1,118 hours of TIL and on 21 August 2024 Dr Purdie rejected his TIL claim without proper justification.

31    Mr Reiche alleges that on 22 August 2024 he received a redundancy notification letter from Neometals. Further, on 4 September 2024 he received a redundancy confirmation letter advising that his employment was terminated immediately and would be paid out in lieu of notice.

Alleged detrimental conduct

32    Mr Reiche alleges that his redundancy was not a genuine redundancy. He alleges that it was used as an improper means of terminating his employment. Further, the purported notice of redundancy of his position on 22 August 2024 and termination of his employment on 4 September 2024 was a ‘detriment’ to him within the meaning of s 1317AD(1)(a) and s 1317ADA of the Act.

33    Mr Reiche alleges that he is not an Australian citizen or permanent resident of Australia. He has been granted a Temporary Skill Shortage (Subclass 482) visa under the provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) which permits him to travel to, enter and remain in Australia. Upon termination of his employment Mr Reiche was no longer able to satisfy condition 8607 of the Regulations and, if he is not able to find another employer who will sponsor him within 180 days of the termination of his employment, he will not be able to remain in Australia on the Subclass 482 visa. (Although Mr Reiche’s affidavit filed with the originating application identified this as a 60-day period, in the course of proceedings it was accepted a180-day period is applicable.) Mr Reiche alleges that he has applied for a Global Talent (Subclass 858) visa and that the loss of his employment with Neometals could adversely affect the outcome of that application and, therefore, his ability to permanently reside in Australia.

34    Mr Reiche alleges that the decision to make payment in lieu of notice was also a ‘detriment’ to him in that he is exposed to the risk of losing his existing Subclass 482 visa or not obtaining the grant of the Subclass 858 visa. Or at least, he has suffered a detriment in that he has lost three additional months within which to find alternative employment in Australia.

35    Mr Reiche alleges that he was entitled to 1,118 hours of TIL in accordance with a Neometals TIL document that he alleges formed part of his entitlements under his contract of employment. Further, upon termination of his employment, he was entitled to be paid for that TIL as an accrued entitlement. The rejection of the TIL claim is alleged to be a detriment caused by Neometals’ conduct.

36    Mr Reiche claims that Neometals’ conduct has resulted in him suffering from extreme emotional and psychological distress. Although not entirely clear, it appears that Mr Reiche alleges that the alleged conduct of Dr Purdie he described as making him feel bullied and harassed referred to in paras [22] and [23] and the alleged conduct referred to in paras [25] to [28] caused him to suffer the alleged emotional and psychological distress. Accordingly, the alleged emotional and psychological distress was a detriment caused by conduct attributable to Neometals within the meaning of s 1317AD(1)(a) and s 1317ADA of the Act.

Mr Reiche’s contentions

37    Mr Reiche contends that the subject matter of the first to fifth alleged qualifying disclosures were matters in respect of which he had reasonable grounds to suspect concerned misconduct or an improper state of affairs or circumstances in relation to Neometals for the purposes of s 1317AA(4) of the Act. The first to sixth disclosures were made to eligible recipients for the purposes of s 1317AAC of the Act. Further, none of the alleged qualifying disclosures were personal workplace grievances within the meaning of s 1317AADA of the Act.

38    In substance, Mr Reiche contends that, because he has suffered detriment caused by conduct of Neometals, in accordance with s 1317AD(2B) of the Act, Neometals bears the onus of proving that the reason or a part of the reason it engaged in that detrimental conduct was not a belief or suspicion that Mr Reiche had made, may have made, proposed to make or could have made a disclosure that qualifies for protection under Pt 9.4AAA of the Act.

39    Mr Reiche claims pursuant to s 1317AE(1):

(a)    an injunction to restrain Neometals from engaging in detrimental conduct;

(b)    an order reinstating him in the position of head of recycling or a comparable position;

(c)    an order requiring Neometals to compensate him for loss, damage and injury as a result of the detrimental conduct; and

(d)    exemplary damages.

40    A separate claim that there was a contravention of s 1317AC (victimisation prohibited) was mentioned in Mr Reiche’s submissions. That claim was not raised in Mr Reiche’s concise statement and Mr Reiche has the onus of positively proving the elements of a cause of action founded on s 1317AC because there is no equivalent in that provision to s 1317AD(2B). As it was not part of his concise statement, I do not regard a claim under s 1317AC as squarely raised in the proceeding and, therefore, it is not addressed in these reasons. Nonetheless, the elements a cause of action for a contravention of s 1317AC(1) are materially same as the relevant elements of Mr Reiche’s claim for an order for compensation under s 1317AD(1). Therefore, if Mr Reiche is unable to succeed on a claim under s 1317AD(1) he is also unable to succeed on a claim involving an alleged contravention of s 1317AC(1).

Neometals’ case

Matters admitted and denied – section 1317AD(1)(a)

41    Neometals admits the following matters and, therefore, these are not matters in question in the proceeding.

(1)    Mr Reiche is and was at all material times an ‘eligible whistleblower’ within the meaning of s 1317AAA(b) of the Act.

(2)    Neometals is and was at all material times a regulated entity for the purposes of s 1317AAB(a) of the Act.

(3)    Each of Mr Reed, Mr Cole, Mr Smith, Mr Kelsall and each of Neometals’ directors was an eligible recipient for the purposes of s 1317AAC of the Act.

(4)    At various times during his employment, Mr Reiche disclosed information to officers and employees of Neometals concerning Mr Reiche’s suspicion of an alleged forgery by SMS and alleged reverse engineering SMS was involved in, and strategic, governance and financial risks in relation to Primobius.

(5)    On 9 July 2024 Mr Reiche gave Mr Smith the 9 July letter in which he disclosed information concerning Mr Reiche’s suspicion of misconduct and an improper state of affairs in relation to Neometals and in which he claimed the protections applicable to eligible whistleblowers under Pt 9.4AAA of the Act.

(6)    On 9 July 2024, with Mr Reiche’s consent, Mr Smith provided the 9 July letter to Mr Kelsall.

(7)    Neometals decided to make Mr Reiche redundant on 21 August 2024 and that was conduct that caused Mr Reiche detriment.

(8)    Neometals decided to terminate Mr Reiche’s employment with immediate effect on 4 September 2024 and that was conduct that caused Mr Reiche detriment.

42    Neometals admits that it decided to reject Mr Reiche’s TIL claim but denies that this was conduct that caused Mr Reiche detriment. Neometals alleges that Mr Reiche had no legal right to the claimed TIL under the terms of his contract of employment and, therefore, rejection of the TIL claim cannot be a detriment.

43    Neometals admits it decided to reduce Mr Reiche’s delegated authority but denies that was conduct that caused him detriment. Neometals alleges that a reduction in delegated authority is not a detriment within the meaning of Pt 9.4AAA of the Act.

44    Neometals denies that it engaged in conduct that constituted bullying or harassment. Neometals alleges that its conduct, through Dr Purdie, was reasonable management action conducted in a reasonable and professional manner. However, Neometals admits that if, contrary to its denial it is found to have engaged in bullying or harassment, that was conduct that caused Mr Reiche detriment. It also appears that Neometals does not admit or deny that Mr Reiche suffered psychological injury or that such injury was caused by any alleged bullying, harassment or other conduct on the part of Neometals.

Alleged state of mind of directors, officers and employees – section 1317AD(1)(b)

45    Neometals alleges, in effect, without admitting that any of the alleged qualifying disclosures was, in fact and law, a qualifying disclosure for the purposes of s 1317AA of the Act, the following matters.

(1)    Each of the directors, officers or employees of Neometals to whom Mr Reiche made the first to fifth alleged qualifying disclosures did not believe or suspect that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA when he made those disclosures or thereafter.

(2)    As of 9 July 2024, Mr Smith and Mr Kelsall, by reason of receipt of the 9 July letter, believed that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals is attributable to the conduct of Mr Smith or Mr Kelsall.

(3)    As of 9 July 2024, Ms Di Virgilio believed, by reason of a conversation with Mr Kelsall in which Mr Kelsall asked for advice about what to do if he had received a whistleblower disclosure, that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals, except for the decision to terminate his employment and to terminate it with immediate effect, is attributable to the conduct of Ms Di Virgilio.

(4)    As of the afternoon of 21 August 2024, by reason of receiving letters from Mr Reiche’s solicitors addressed to each of them, each of Neometals’ directors believed that Mr Reiche may have made, proposed to make or could make a disclosure that qualifies for protection under Pt 9.4AAA, but none of the admitted or alleged detrimental conduct of Neometals took place after they had that state of mind.

Alleged reasons for redundancy and termination – section 1317AD(1)(c)

46    Neometals alleges that the reasons for its admitted detrimental conduct were as follows.

(1)    The decision to make Mr Reiche’s role redundant was a decision of the Neometals board and that was made solely because the board decided to restructure the organisation by significantly reducing Neometals’ cost base to conserve capital due to its financial position.

(2)    The decision to select Mr Reiche’s role for redundancy was solely because:

(a)    Neometals no longer required Mr Reiche’s role to be performed by anyone. His role was underutilised and some duties were already being, or were to be, performed by others including an employee who reported to Mr Reiche and the remaining duties could be distributed to other employees including Dr Purdie.

(b)    Mr Reiche was not performing his role to the expected level and he had poor relationships with stakeholders, peers and team members.

(c)    The salary for Mr Reiche’s role was significant and Neometals needed to make cost savings due to its financial position.

(3)    The decision to terminate Mr Reiche’s employment was a decision of Ms Di Virgilio. She made that decision solely because Mr Reiche’s role was redundant and there were no available suitable alternative roles to which Mr Reiche could be redeployed.

(4)    The decision to terminate Mr Reiche’s employment with immediate effect and to pay him in lieu of his notice period was made solely because Neometals had attempted to engage with Mr Reiche on numerous occasions between 21 August and 2 September 2024 to consult with him about the redundancy. Based on Mr Reiche’s responses, including through his legal representatives, Ms Di Virgilio formed the view that Mr Reiche was either unwilling or unable to engage meaningfully with Neometals and may continue not to engage meaningfully if he were to serve out his notice period and that the relationship between Neometals and Mr Reiche had broken down irretrievably.

(5)    The decision not to extend the period for Mr Reiche to consult about the effects of the redundancy was made by Ms Di Virgilio. That decision was made solely for the reasons that:

(a)    Neometals had attempted on numerous occasions between 21 August and 2 September 2024 to consult with Mr Reiche about the redundancy. Based on Mr Reiche’s responses, including through his legal representatives, Ms Di Virgilio formed the view that Mr Reiche was either unwilling or unable to engage meaningfully with Neometals on the consultation.

(b)    Neometals had announced to the ASX on 22 August 2024 that it was making roles redundant and implementing cost-saving measures and had otherwise implemented the proposed restructure insofar as it concerned all other employees whose roles were made redundant.

(c)    It was financially detrimental to Neometals to continue waiting for Mr Reiche to consult with Neometals.

Alleged reasons for denied detrimental conduct – section 1317AD(1)(c)

47    Neometals alleges that the reason for Dr Purdie’s conduct (and the conduct of any other Neometals director, officer or employee) which Mr Reiche alleges was bullying or harassment was solely because Mr Reiche’s role was critical to the success of Primobius and, in turn, Neometals. Neometals, based on the observations of Dr Purdie and Ms Di Virgilio, believed that Mr Reiche was not performing his role to the standard required of an executive in his position.

48    Neometals alleges that Mr Reiche’s TIL claim was rejected solely for the reason that Neometals, through Dr Purdie, believed that the claim had been submitted in error because it lacked justification, amounted to an implausible amount of hours when considered in the context of the applicants’ period of employment and was in addition to 255 hours of TIL that had already been approved for the same period.

49    Neometals alleges that the decision to reduce Mr Reiche’s delegated authority was solely for the reason that Neometals had revised the authority limits of all its employees (including Mr Reiche) because its business had reduced in scope.

Relief – section 1317AE(1)

50    It follows that irrespective of whether or not the elements of s 1317AD(1)(a) and s 1317AD(1)(b) are satisfied, Neometals alleges and contends that the sole reason for its conduct was unrelated to any belief or suspicion that Mr Reiche had made, may have made, proposed to make, or could have made a disclosure that qualified for protection under Pt 9.4AAA of the Act. Neometals also contends, even if the elements of s 1317AD(1) are satisfied the Court should not order any relief under s 1317AE(1).

51    Neometals contends that injunctive relief is not appropriate because, in effect, its conduct is spent. There is nothing prospective to restrain. Mr Reiche has been made redundant and his contract of employment has been terminated. Further, Mr Reiche has been paid all his contractual and statutory entitlements in relation to the termination of his employment. For that reason and because it could and would have terminated his employment lawfully by reason of a genuine redundancy, Neometals contends that Mr Reiche has suffered no loss or damage by reason of his redundancy and termination of his employment.

52    Neometals contends that reinstatement is not appropriate because Mr Reiche’s role has been made redundant and also because the parties’ relationship has broken down irretrievably.

53    Neometals contends, in any event, that exemplary damages are not appropriate because its conduct was not egregious, malicious or with intentional disregard of Mr Reiche’s rights.

Legislative framework

54    There has been little judicial consideration of the provisions of Pt 9.4AAA of the Act. As will be explained later, some guidance for the interpretation of these provisions may be obtained from the approach taken to the construction of similar provisions in the Fair Work Act 2009 (Cth). However, there is a limit to that guidance and the provisions of Pt 9.4AAA must be construed in accordance with established principles of statutory interpretation.

55    Justice Katzmann recently considered the legislative framework and provisions of Pt 9.4AAA, including s 1317AA, s 1317AD and s 1317AE, in Mount v Dover Castle Metals Pty Ltd [2025] FCA 101 at [122] – [153]. These reasons were prepared in draft before publication of Mount. Much of the following explanation of Pt 9.4AAA of the Act sets out the same or similar observations as Katzmann J regarding the legislative framework, context and purpose of Pt 9.4AAA. As a consequence of the different issues arising in this case to those that were considered in Mount, these reasons have a different emphasis on the provisions of Pt 9.4AAA that are applicable to this case, but otherwise I regard the following explanation to be consistent with the views Katzmann J expressed in Mount.

Applicable principles of statutory interpretation

56    The analysis of the meaning of a provision in a statute or legislative instrument starts and finishes with the text, but the text must be considered in context and having regard to the legislative purpose: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Where different interpretations are open, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. To that end, material not forming part of the Act that is capable of assisting in the ascertainment of the meaning of the provision to be considered may be taken into account, either to confirm the ordinary meaning of the provision or to determine the meaning in cases where meaning is ambiguous, obscure, absurd or unreasonable: Interpretation Act, s 15AB.

57    In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) summarised the ‘modern approach to statutory interpretation’ as follows:

[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy [Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315; 60 ALR 509]. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.

Whistleblower provisions context

58    Part 9.4AAA of the Act contains provisions intended to encourage individuals to disclose, and to protect individuals who disclose, misconduct or an improper state of affairs or circumstances in relation to regulated entities to an appropriate regulator or internally within the entity itself.

59    Part 9.4AAA of the Act was originally inserted into the Act in accordance with the recommendations of the Corporations Law Economic Reform Program, CLERP 9. It was enacted as Pt 2 of Sch 4 of the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth). There were also a number of other statutes that contained whistleblower provisions concerning entities engaged in the financial sector. As a consequence of the patchwork of whistleblower provisions, there were gaps in the coverage of the protections, inconsistencies between the statutes including the manner in which an individual qualified as a whistleblower and legal complexity that was perceived to have the effect of discouraging whistleblowers.

60    In 2016 the Commonwealth Government published Australia’s First Open Government National Action Plan 2016-18. In that document it committed to improving whistleblower protections in the tax and corporate sectors by 30 June 2018. Part of that process included establishing a parliamentary inquiry which published the Parliamentary Joint Committee on Corporations and Financial Services - Whistleblower Protections Report in September 2017. The Parliamentary Joint Committee report followed the independent review of the Public Interest Disclosure Act 2013 (Cth) by the then Integrity Commissioner, Phillip Moss AM, and report published in July 2016. The Parliamentary Joint Committee report contained a number of recommendations concerning: consistency of whistleblower protections across sectors; disclosable conduct; defining whistleblowers and protection thresholds; anonymity of whistleblowers; internal, regulatory and external reporting channels; disclosure to Australian law enforcement agencies; external disclosures; protection, remedies and sanctions for reprisals; reward systems; and a whistleblower protection authority.

61    In 2019 the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) was enacted. That amending Act repealed the whistleblower provisions in legislation regulating the financial sector and made substantial amendments to Pt 9.4AAA. In effect, the whistleblower provisions for the corporate and financial sector were repealed and re-enacted as a consolidated and consistent regime as part of the Act.

62    The Explanatory Memorandum for the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2018 indicates that the Bill was the government’s response to its commitment in the First OGNAP and the recommendations contained in the Parliamentary Joint Committee report. The Bill was said to address gaps and uncertainties in the protections and remedies available to corporate and financial sector whistleblowers by bringing the whistleblower laws in other financial statutes into the Act and creating a new regime for the protection of individuals who disclose wrongdoing in the tax sphere.

Part 9.4AAA

63    Part 9.4AAA of the Act contains the following relevant provisions (notes omitted):

1317AA    Disclosures qualifying for protection under this Part

Disclosure to ASIC, APRA or prescribed body

(1)    A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:

(a)    the discloser is an eligible whistleblower in relation to a regulated entity; and

(b)    the disclosure is made to any of the following:

(i)    ASIC;

(ii)    APRA;

(iii)    a Commonwealth authority prescribed for the purposes of this subparagraph in relation to the regulated entity; and

(c)    subsection (4) or (5) applies to the disclosure.

Note:    Section 1317AAD (public interest disclosure and emergency disclosure) and paragraph 1317AB(1)(c) (protection from self-incrimination etc.) may apply to a disclosure covered by this subsection.

Disclosure to eligible recipients

(2)    A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:

(a)    the discloser is an eligible whistleblower in relation to a regulated entity; and

(b)    the disclosure is made to an eligible recipient in relation to the regulated entity; and

(c)    subsection (4) or (5) applies to the disclosure.

Disclosure to legal practitioner

(3)    A disclosure of information by an individual qualifies for protection under this Part if the disclosure is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Part.

Disclosable matters

(4)    This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a)    the regulated entity; or

(b)    if the regulated entity is a body corporate—a related body corporate of the regulated entity.

(5)    Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:

(a)    the regulated entity, or an officer or employee of the regulated entity;

(b)    if the regulated entity is a body corporate—a related body corporate of the regulated entity, or an officer or employee of a related body corporate of the regulated entity;

has engaged in conduct that:

(c)    constitutes an offence against, or a contravention of, a provision of any of the following:

(i)    this Act;

(ii)    the ASIC Act;

(iii)    the Banking Act 1959;

(iiia)    the Financial Accountability Regime Act 2023;

(iv)    the Financial Sector (Collection of Data) Act 2001;

(v)    the Insurance Act 1973;

(vi)    the Life Insurance Act 1995;

(vii)    the National Consumer Credit Protection Act 2009;

(viii)    the Superannuation Industry (Supervision) Act 1993;

(ix)    an instrument made under an Act referred to in any of subparagraphs (i) to (viii); or

(d)    constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or

(e)    represents a danger to the public or the financial system; or

(f)    is prescribed by the regulations for the purposes of this paragraph.

…

1317AADA    Personal work-related grievances

(1)    Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser) to the extent that the information disclosed:

(a)    concerns a personal work-related grievance of the discloser; and

(b)    does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.

Note:    A disclosure concerning a personal work-related grievance that is made to a legal practitioner may qualify for protection under this Part under subsection 1317AA(3).

(2)    For the purposes of subsection (1), the information disclosed concerns a personal work-related grievance of the discloser if:

(a)    the information concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally; and

(b)    the information:

(i)    does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and

(ii)    does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).

Examples of grievances that may be personal work-related grievances under paragraph (a) (but subject to paragraph (b)) are as follows:

(a)    an interpersonal conflict between the discloser and another employee;

(b)    a decision relating to the engagement, transfer or promotion of the discloser;

(c)    a decision relating to the terms and conditions of engagement of the discloser;

(d)    a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

…

1317AC    Victimisation prohibited

Actually causing detriment to another person

(1)    A person (the first person) contravenes this subsection if:

(a)    the first person engages in conduct; and

(b)    the first person’s conduct causes any detriment to another person (the second person); and

(c)    when the first person engages in the conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(d)    the belief or suspicion referred to in paragraph (c) is the reason, or part of the reason, for the conduct.

…

1317AD    Compensation and other remedies—circumstances in which an order may be made

(1)    A court may make an order under section 1317AE in relation to a person (the first person) if:

(a)    the first person engages in conduct (detrimental conduct) that:

(i)    causes any detriment to another person (the second person); or

(ii)    constitutes the making of a threat to cause any such detriment to another person (the second person); and

(b)    when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and

(c)    the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct.

…

Burden of proof

(2B)    In proceedings where a person seeks an order under section 1317AE in relation to another person:

(a)    the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:

(i)    if subsection (1) of this section applies—paragraph (1)(a); or

(ii)    if subsection (2) of this section applies—paragraph (1)(a), as mentioned in paragraph (2)(b); or

(iii)    if subsection (2A) of this section applies—paragraphs (2A)(a) and (d); and

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

…

1317ADA    Meaning of detriment

In sections 1317AC and 1317AD, detriment includes (without limitation) any of the following:

(a)    dismissal of an employee;

(b)    injury of an employee in his or her employment;

(c)    alteration of an employee’s position or duties to his or her disadvantage;

(d)    discrimination between an employee and other employees of the same employer;

(e)    harassment or intimidation of a person;

(f)    harm or injury to a person, including psychological harm;

(g)    damage to a person’s property;

(h)    damage to a person’s reputation;

(i)    damage to a person’s business or financial position;

(j)    any other damage to a person.

1317AE    Compensation and other remedies—orders that may be made

(1)    For the purposes of subsections 1317AD(1), (2) and (2A), a court may make any of the following orders:

(a)    an order requiring the first person to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct;

(b)    if the court is satisfied that the first person engaged in the detrimental conduct in connection with the first person’s position as an employee:

(i)    an order requiring the first person to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person’s employer to compensate the second person, or any other person, for a part of loss, damage or injury as a result of the detrimental conduct; or

(ii)    an order requiring the first person and the first person’s employer jointly to compensate the second person, or any other person, for loss, damage or injury suffered as a result of the detrimental conduct; or

(iii)    an order requiring the first person’s employer to compensate the second person, or any other person, for loss, damage or injury as a result of the detrimental conduct;

(c)    an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;

(d)    an order requiring the first person to apologise to the second person, or any other person, for engaging in the detrimental conduct;

(e)    if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person’s employment—an order that the second person be reinstated in that position or a position at a comparable level;

(f)    if the court thinks it is appropriate—an order requiring the first person to pay exemplary damages to the second person, or any other person;

(g)    any other order the court thinks appropriate.

(2)    If the detrimental conduct wholly or partly consists, or consisted, of terminating or purporting to terminate a person’s employment (including detrimental conduct that forces or forced the person to resign), the court must, in making an order mentioned in paragraph (1)(a) or (b), consider the period, if any, the person is likely to be without employment as a result of the detrimental conduct. This subsection does not limit any other matter the court may consider.

(3)    In deciding whether to make an order under paragraph (1)(b) in relation to the first person’s employer, the court may have regard to the following:

(a)    whether the employer took reasonable precautions, and exercised due diligence, to avoid the detrimental conduct;

(b)    if the employer has a policy dealing with any or all of the matters referred to in subsection 1317AI(5) (whether or not section 1317AI requires the employer to have such a policy)—the extent to which the employer gave effect to that policy;

(c)    any duty that the employer was under to prevent the detrimental conduct, or to take reasonable steps to ensure that the detrimental conduct was not engaged in.

(4)    If the court makes an order under subparagraph (1)(b)(ii), the first person and the first person’s employer are jointly and severally liable to pay the compensation concerned.

…

1317AH    Costs only if proceedings instituted vexatiously etc.

(1)    This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section 1317AE in which a person (the claimant) is seeking an order under subsection 1317AE(1).

(2)    The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.

(3)    The claimant may be ordered to pay the costs only if:

(a)    the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or

(b)    the court is satisfied that the claimant’s unreasonable act or omission caused the other party to incur the costs.

1317AI        Whistleblower policies

(1)    A public company must:

(a)    have a policy that sets out the matters referred to in subsection (5); and

(b)    make that policy available to officers and employees of the company.

        …

(5)    The matters that a policy must set out for the purposes of paragraph (1)(a), (2)(a) or (3)(a) are:

(a)    information about the protections available to whistleblowers, including protections under this Part; and

(b)    information about to whom disclosures that qualify for protection under this Part may be made, and how they may be made; and

(c)    information about how the company will support whistleblowers and protect them from detriment; and

(d)    information about how the company will investigate disclosures that qualify for protection under this Part; and

(e)    information about how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection under this Part, or to whom such disclosures relate; and

(f)    information about how the policy is to be made available to officers and employees of the company; and

(g)    any matters prescribed by the regulations for the purposes of this paragraph.

64    Section 1317AAA provides that an individual is an eligible whistleblower in relation to a regulated entity if the individual is or has been an employee of the entity. Section 1317AAB provides, amongst other things, that a company is a ‘regulated entity’. Neometals is a ‘company’ within the meaning of s 9 of the Act. Section 1317AAC provides that an eligible recipient includes an officer, senior manager of the body corporate or a related body corporate and a person authorised by the body corporate to receive disclosures that may qualify for protection under Pt 9.4AAA.

65    While not directly relevant, s 1317AAE forms part of the context within which the relevant provisions are to be understood and interpreted. That section prohibits the disclosure of a whistleblower’s identity or information that is likely to lead to the identification of the whistleblower except to ASIC, to APRA, to the Australian Federal Police, to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the operation of Pt 9.4AAA, as prescribed in regulations, or with the consent of the whistleblower. A failure to comply with s 1317AAE is a criminal offence and a civil penalty provision: s 1311(1); s 1317E.

Purpose of whistleblower provisions

66    An evident purpose of Pt 9.4AAA, and the amendments made in 2019 in particular, is to encourage individuals to disclose criminal and other misconduct in the corporate and financial sectors and reduce the personal and financial risks to those individuals of making such disclosures. That purpose is consistent with the explanatory memorandum and second reading speech for the 2018 Bill which emphasise that whistleblowing is an important part of detection and prosecution of criminal and other misconduct in the corporate and financial sectors. The existence of strong statutory protections to encourage whistleblowing can improve compliance with the law and promote a more ethical culture: Explanatory Memorandum paras 1.2 – 1.9.

Elements of cause of action for compensation and other relief

67    Mr Reiche claims compensation and other relief under s 1317AE. The Court may make an order under s 1317AE if, relevantly, the elements of s 1317AD(1) are satisfied. The elements of s 1317AD(1) are that:

(a)    Neometals engaged in conduct that caused detriment to Mr Reiche (detrimental conduct); and

(b)    when Neometals engaged in that detrimental conduct, it believed or suspected that Mr Reiche made, may have made, proposes to make or could make a disclosure that qualifies for protection under Pt 9.4AAA; and

(c)    that belief or suspicion was the reason or part of the reason for the detrimental conduct.

68    The effect of s 1317AD(2B) is that if Mr Reiche discharges his onus by adducing or pointing to evidence that suggests a reasonable possibility that Neometals engaged in detrimental conduct and no further evidence is adduced, then all elements of s 1317AD(1) are taken to have been satisfied. Therefore, if Mr Reiche discharges his onus, Neometals has the onus of disproving, on the balance of probabilities, all elements of the cause of action. Of course, if Neometals adduces evidence that tends to disprove all elements of s 1317AD(1) then Mr Reiche would have a practical, not legal, onus to adduce evidence tending to prove the elements or rebut Neometals’ evidence in order to ultimately succeed on his cause of action. See, also, Mount at [142] – [143] where similar observations were made in respect to the operation of s 1317AD(2B).

Disclosure that qualifies for protection

69    There is a difference between the parties regarding the extent to which it is necessary to demonstrate that a disclosure that qualifies for protection was made, and whether this forms an implicit element of the cause of action for an order under s 1317AE. Mr Reiche contends, in effect, that it is implicit that a person must have made a disclosure that qualifies for protection in order for s 1317AD to operate. That is, it is implicit that in order for a person to believe or suspect that a whistleblower made, may have made, proposed to make or could make a disclosure that qualifies for protection, it is necessary that the whistleblower has actually made a disclosure that qualified for protection. Neometals contends that it is not necessary that a person has made a qualifying disclosure, only that the person who engages in detrimental conduct believes or suspects one is made, may have been made, is proposed to be made or could be made.

70    Section 1317AA describes the circumstances in which a disclosure by an eligible whistleblower qualifies ‘for protection under this Part’. Section 1317AAD describes two further kinds of disclosure of information that qualify for protection under Pt 9.4AAA (public interest disclosure and emergency disclosure). Each of these qualifying disclosures requires that a qualifying whistleblower disclosure under s 1317AA has already been made. It is implicit in these provisions that what may broadly be described as affording ‘protection’ to a person who has disclosed information only applies to qualifying disclosures of information. The protective provisions are: s 1317AAE and s 1317AG (confidentiality of whistleblower identity); s 1317AB (non-actionability of qualifying disclosures); s 1317AC (victimisation prohibited); and ss 1317AD, 1317AE and 1317AH (compensation for detrimental conduct). However, that a person has made a disclosure that qualifies for protection under Pt 9.4AAA is only an express element of s 1317AAE, s 1317AB and s 1317AG. It is not an express element of s 1317AC and s 1317AD. That difference suggests that the omission in s 1317AC and s 1317AD is deliberate and that is an indication that a qualifying disclosure of information is not a precondition or element of the prohibition on victimisation in s 1317AC or for compensation for detrimental conduct in s 1317AD and s 1317AE.

71    The text of s 1317AD also contains indications that a qualifying disclosure of information is not a pre-condition to the operation of the protections afforded under ss 1317AD, 1317AE and 1317AH. Amongst other things, ss 1317AD(1)(b), 1317AD(2)(b) and 1317AD(3)(b) all refer to the person engaging in detrimental conduct believing or suspecting that a person ‘proposes to make or could make a disclosure that qualifies for protection’ under Pt 9.4AAA. Sections 1317AD(1)(a)(ii), 1317AD(2)(c)(ii) and 1317AD(2A)(a)(ii) refer to making threats to cause detriment to a person. Eligible whistleblowers may be discouraged from making qualifying disclosures by threats made before a disclosure has actually been made. Therefore, a requirement that a qualifying disclosure has been made as an element of a cause of action under s 1317AD would reduce the protection afforded by Pt 9.4AAA and undermine a purpose of that Part.

72    Neometals’ construction increases the scope of s 1317AD and s 1317AE (and s 1317AC). That construction is more consistent with the purpose of Pt 9.4AAA and is also more consistent with the text of s 1317AD and the other provisions of Pt 9.4AAA than the alternative construction Mr Reiche advances. In my view, that a qualifying disclosure has been made is not an element of the cause of action under s 1317AD and s 1317AE.

73    It follows that it is not necessary for Neometals to ‘disprove’ that Mr Reiche made a qualifying disclosure in order for it to demonstrate that Mr Reiche’s claim is not made out. But, that does not mean that the fact that a qualifying disclosure was made or that Mr Reiche could make a qualifying disclosure is not relevant to the forensic enquiry regarding whether a person who engaged in detrimental conduct believed or suspected that Mr Reiche made, may have made, proposed to make or could make a qualifying disclosure. Evidence that a whistleblower had information, which if disclosed, would qualify for protection could be relevant to that forensic question.

Detrimental conduct

74    Relevantly, an element of the cause of action under s 1317AD(1) is that a person (Neometals) engages in conduct that causes any detriment to another person (Mr Reiche). There are three parts to that element. First, a person engages in conduct. Second, there is detriment to another person. Third, the conduct of the first person caused the detriment of the second person.

75    The term ‘detriment’ as used in s 1317AD (and s 1317AC) is not defined in the Act. However, the natural and ordinary meaning of that word extends to any harm or damage. In Mount Katzmann J observed that in its ordinary meaning ‘detriment’ means a disadvantage: Mount at [148].

76    Consistently with the purpose of Pt 9.4AAA, s 1317ADA provides that ‘detriment includes (without limitation)’ a list of kinds of detriment that is expressed in very broad terms. In Mount Katzmann J observed that s 1317ADA was modelled on s 337BA(2) the Fair Work (Registered Organisations) Act 2009 (Cth) but is intentionally broader in that the definition in that Act does not include ‘damage to a person’s business or financial position’ or ‘any other damage to a person’: Mount at [147]. Having regard to the purpose of Pt 9.4AAA, the ordinary meaning of ‘detriment’ and the broad and non-exhaustive list of detriments in s 1317ADA, there is no warrant in the text, context or purpose of Pt 9.4AAA to confine the concept of detriment.

77    In terms of the conduct Mr Reiche alleges caused him detriment, it is not in issue that the decision to make his role redundant and to terminate his employment was detrimental conduct. Likewise, it is not contested that the decision to terminate his contract of employment with immediate effect also caused detriment to Mr Reiche. Although Neometals denies it engaged in conduct that was bullying or harassment, it accepts that such conduct, if proved, would be detrimental conduct. Last, Neometals disputes that the rejection of Mr Reiche’s TIL claim could constitute detrimental conduct because he had no legal entitlement to have his TIL claim approved.

78    Drawing on the general protection provisions of the Fair Work Act, Neometals submits that ‘injury of a person in his or her employment’ means a legally compensable injury. Further, that in determining whether a person has been injured in their employment the relevant question is whether the action impacted negatively upon one of the more immediate practical incidents of employment including remuneration, duties or hours of work. In support of that submission Neometals cites Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 at [4]; Community & Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; 99 IR 238; Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; 157 FCR 329 at [127]; Childs v Metropolitan Transport Trust (1981) IAS Current Review 946; Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd [2011] FMCA 58; 201 IR 441 at [29]; Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; 93 FCR 34 at [244]; Australasian Meat Industry Employees Union v. R.J. Gilbertson (Queensland) Pty Ltd [1988] FCA 754 at [15]-[17]; The Community and Public Sector Union v Commonwealth of Australia [2006] FCAFC 176; 157 IR 470 at [32].

79    Again, drawing on judicial interpretation of the provisions of the Fair Work Act, Neometals submits that ‘alteration of an employee’s position or duties to his or her disadvantage’ has been construed as a broader category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. In support of that submission Neometals cites Patrick Stevedores Operations No 2 at [4] and Blair v Australian Motor Industries Ltd [1982] FCA 145; 61 FLR 283 at 290.

80    Neometals submits that its TIL document was not part of Mr Reiche’s contract of employment and, for that reason, he had no right or entitlement to approval of his TIL claim. Further, Neometals submits the policy was withdrawn before Mr Reiche made his TIL claim and, therefore, again, he had not right or entitlement to approval of his claim. Neometals submits that in these circumstances there can be no detriment for not receiving TIL and payment for those hours upon termination of his employment.

81    I do not accept Neometals’ submission that rejection of Mr Reiche’s TIL claim cannot comprise a detriment if he had no legal entitlement to have his TIL claim approved. Even if the TIL document was not part of his contract of employment or otherwise not binding on Neometals, rejection of a claim based on a non-binding policy is capable of characterisation as ‘detriment’ if rejection of the claim was for reasons unrelated to application of the policy in accordance with the usual practice of the company or merits of the claim. For example, an arbitrary, capricious, illogical, irrational or unreasonable reason for rejecting a claim may be described as a detriment because the policy was not applied to an employee in accordance with the terms of the policy and merits of the claim. That may amount to discrimination or other harm in the sense that the employee was deprived of the opportunity of a fair and reasonable assessment and decision on the claim.

82    Regarding Mr Reiche’s allegation that Neometals engaged in conduct that was bullying and harassment, relying on Hodkinson v Commonwealth [2011] FMCA 171; 207 IR 129 (at [176]-[178]), Neometals submits that discrimination between an employee and other employees of the employer requires an employer to deliberately treat an employee less favourably than its other employees and there must be a conscious decision to make a distinction between the employees. Neometals also made submissions about the meaning of harassment based on the definitions in s 28A of the Sex Discrimination Act 1984 (Cth) and s 35 of the Disability Discrimination Act 1992 (Cth). Likewise, Neometals made submissions about the meaning of bullying based on the meaning of that expression in s 789FD of the Fair Work Act. I do not consider any of these authorities useful for determining the meaning of detriment in s 1317AD. As already mentioned, the term is unconstrained by text, context or purpose and the list of detriments described in s 1317ADA is drawn in broad terms.

83    Mr Reiche alleges that he was subjected to bullying and harassment. It is for Mr Reiche to adduce or point to evidence that suggests a reasonable possibility that Neometals engaged in conduct that caused detriment to Mr Reiche. Conduct that causes ‘bullying’ may take the form of conduct that also causes ‘harassment’ or ‘intimidation’ or both within the ordinary meaning of each of those words. Harassment suggests continually or repeatedly troubling, annoying or attacking a person. Intimidation suggests inducing or inspiring fear or overawing to make timid or deter a person. Bullying suggests using a position of strength or power to overbear or browbeat a person in a weaker position. Thus, conduct that caused ‘bullying’ or ‘harassment’ of Mr Reiche may be conduct that caused ‘detriment’ to Mr Reiche within the ordinary meaning of that word.

Belief or suspicion of qualifying disclosure

84    Whether a person believes or suspects that another person has made, may have made, proposed to make or could make a disclosure qualifying for protection under Pt 9.4AAA is quintessentially a question of fact. No doubt it would be difficult to decide that a person did not have the belief or suspicion without direct evidence from the person to that effect. However, the mere fact that a person has given evidence that he or she did not have the belief or suspicion referred to in s 1317AD(1)(b) does not mean that the company has discharged the onus of proof it bears under s 1317AD(2B). It is necessary to have regard to all the circumstances and evidence to reach a conclusion about the person’s state of mind.

Disclosable matters

85    A disclosure of information by an eligible whistleblower to ASIC, APRA, or an eligible recipient qualifies for protection under s 1317AA(1)(c) or s 1317AA(2)(c) if s 1317AA(4) or s 1317AA(5) applies to the disclosure. Section 1317AA(4) applies ‘if the discloser had reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances in relation to the regulated entity or … a related body corporate of the regulated entity’.

86    In the context of an application to strike-out a statement of claim, Bowskill J considered the operation of s 1317AA(4) and s 1317AA(5) and the meaning of ‘reasonable grounds to suspect’ in Quinlan v ERM Power Ltd (No 1) [2021] QSC 35; 7 QR 377. After setting out the legislative history of Pt 9.4AAA and making reference to the extrinsic materials to which I have referred earlier in these reasons, her Honour expressed the view that the expression contains subjective and objective elements. The discloser must subjectively possess grounds to suspect the relevant things and those grounds must objectively be reasonable grounds for that suspicion: Quinlan (No 1) at [24]-[27].

87    In the context of s 1317AD(1)(b), the relevant inquiry is whether the person who engaged in detrimental conduct believed or suspected Mr Reiche subjectively possessed grounds for having a suspicion of the matters in s 1317AA(4) or s 1317AA(5) and, if so, whether those grounds objectively would be reasonable grounds for that suspicion. That inquiry is informed, in part, by the nature of the information subjectively possessed and the extent to which it obviously and readily concerns the matters described in s 1317AA(4) or s 1317AA(5). The outcome of the relevant inquiry is of relevance to determining the question of whether the person who engaged in detrimental conduct could have or was likely to have believed or suspected that Mr Reiche had made, may have made, proposed to make or could make a disclosure of information that would qualify for protection under Pt 9.4AAA.

88    The term ‘misconduct’ is defined in the Act non-exhaustively to include ‘fraud, negligence, default, breach of trust and breach of duty’: s 9. The term ‘improper state of affairs or circumstances’ is not defined in the Act. From the absence of an exhaustive or any definition, Katzmann J inferred that Parliament intended that the terms have their ordinary meaning. Citing Parker v Comptroller-General of Customs [2009] HCA 7; 83 ALJR 494; 252 ALR 619; 71 ATR 23 at [29] (French CJ), her Honour observed that the ordinary meaning of ‘improper’ includes ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’ and that the word ‘has a broad construct’: Mount at [129]. Her Honour added:

129    [That construction] is consistent with the intention of the legislation as explained in the [Revised Explanatory Memorandum to the Treasury Laws Amendment (Enhancing Protections) Bill 2018]:

2.34    The broad categories of disclosable conduct are also intended to include conduct that may not be in contravention of particular laws. For example misconduct, or an improper state of affairs or circumstances in relation to a regulated entity, may not involve unlawful conduct but may indicate a systemic issue that would assist the relevant regulator in performing its functions.

2.35    Information that indicates a danger to the public or a danger to the financial system is also a disclosable matter. This is intended to cover a broad range of conduct that poses significant risk to public safety or the stability of, or confidence in, the financial system, whether or not it is in breach of any law.

I agree with her Honour’s observations and would add that the ordinary meaning of the terms is also informed by context and purpose in accordance with the principles of statutory interpretation to which I have referred earlier in these reasons.

89    Part of the context is that: s 1317AA(1)(a) and s 1317AA(2)(a) require that the discloser is an eligible whistleblower in relation to ‘a regulated entity’; s 1317AA(4) provides that the information be ‘in relation to … the regulated entity’; and s 1317AA(5) is also directed to information that indicates that ‘the regulated entity, or an officer or employee of the regulated entity’ has engaged in certain conduct. The term ‘regulated entity’ is defined in s 1317AAB to describe various kinds of entities that are, as the defined term suggests, ‘regulated’ under one or more of the Corporations Act 2001 (Cth), Banking Act 1959 (Cth), Insurance Act 1973 (Cth), Life Insurance Act 1995 (Cth) and Superannuation Industry (Supervision) Act 1993 (Cth). A disclosure of information may qualify for protection if made to ASIC, APRA or a prescribed Commonwealth authority. That is, disclosure to a regulator of a regulated entity: s 1317AA(1)(b). A disclosure of information may also qualify for protection if made to an eligible recipient in relation to the regulated entity: s1317AA(2)(b). An eligible recipient is a person who, broadly, holds a position that has responsibility for regulatory compliance in relation to a regulated entity: s 1317AAC.

90    Part of the context also includes the substance of s 1317AA(5) and s 1317AADA. While expressed to be without limiting s 1317AA(4), the information described in s 1317AA(5) concerns conduct constituting offences against or contraventions of laws of the Commonwealth or dangers to the public or financial system that engage the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to the regulated entity. Section 1317AADA excludes disclosure of information concerning a personal work-related grievance of the discloser, unless the information concerns victimisation in contravention of s 1317AC or an offence, contravention or danger described in s 1317AA(5). That is, in effect, information does not qualify for protection if it is information that would not engage or assist the regulatory functions of ASIC, APRA or another Commonwealth authority in relation to the regulated entity.

91    These are all textual indications that intended subject of disclosable matters under s 1317AA(4) and s 1317AA(5) is information that is of relevance to the regulatory functions (compliance, enforcement and (or) discipline) of ASIC, APRA or another Commonwealth authority in relation to the regulated entity. However, to engage or assist these regulatory functions, the information need not indicate conduct that is an offence or contravention of a law of the Commonwealth or that represents a danger to the public or the financial system as described in s 1317AA(5) or the contravention of any other law. Consistently with the explanation in the Revised Explanatory Memorandum, disclosable matters may include conduct that does not involve a contravention of any particular law and systemic issues that may assist a regulator in the performance of its functions.

92    Part 9.4AAA was originally enacted in 2004 as part of Sch 4 of the CLERP Act. Schedule 4 of the CLERP Act contained a series of provisions directed to enforcement of the Act. Part 9.4AAA was intended to encourage employees to report suspected breaches of the Act to ASIC or internally. That formed part of the provisions of the Act dealing with regulatory enforcement of the whistleblower protection provisions of the Act. Other parts of Sch 4 dealt with criminal and civil penalties and disqualification of directors which were all related to compliance and enforcement of the Act. The amendments to Pt 9.4AAA made in 2019 were evidently intended to improve the statutory protections and standardise and remove perceived gaps in the whistleblowing provisions in various legislation within the regulatory responsibilities of ASIC and APRA. However, the underlying purpose of Pt 9.4AAA remained to encourage whistleblowing to aid or improve compliance with the law. In other words, Pt 9.4AAA forms part of the provisions of the Act directed towards compliance with and enforcement of laws of the Commonwealth.

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

94    It is also not necessary for the purposes of this proceeding to consider the necessary nexus between the information disclosed and the regulated entity to meet the description ‘in relation to … the regulated entity’ for the purposes of s 1317AA(4). In this case, although the first to sixth disclosures were of information pertaining to Primobius, it is not in issue that the information was ‘in relation to’ Neometals as a regulated entity. Further, Mr Reiche does not advance a case that the impugned conduct or state of affairs or circumstances concerned information ‘in relation to’ Primobius as ‘a related body corporate’ of Neometals. Nonetheless, it is relevant to observe, accepting ‘in relation to’ are words of wide import, that information may not obviously or readily be ‘in relation to’ a regulated entity where the information concerns conduct or a state of affairs or circumstances pertaining to a company in which the regulated entity has a non-controlling shareholding or is not otherwise in a position to control or determine the outcome of decisions about the business and management of that company. Therefore, where a putative whistleblower is in possession of information pertaining to a company with which the regulated entity has such a relationship, a person who causes detriment to the whistleblower may plausibly not have reason to believe or suspect that disclosure of that information by the whistleblower would qualify for protection under Pt 9.4AAA of the Act.

The reason or part of the reason for detrimental conduct

95    Drawing on the interpretation of s 346 and s 361 of the Fair Work Act, Neometals submits that the ‘reason’ for detrimental conduct in s 1317AD(1)(c) means the operative or immediate reason for the conduct or a substantial and operative factor. Section 346 of the Fair Work Act prohibits an employer from taking adverse action against an employee because that employee is an officer or member of an industrial association or because the employee engages or proposes to engage in particular kinds of industrial activity. Section 360 provides that for the purposes of Pt 3-1 of the Fair Work Act (which includes s 346) ‘a person takes action for a particular reason if the reasons for the action include that reason’. Under s 361 adverse action taken against an employee is presumed to be taken for a prohibited reason unless the employer responsible for taking the adverse action proves otherwise. These provisions of the Fair Work Act are similar, but not identical, in structure, text and operation to s 1317AA(1)(c) and s 1317AD(2B) of the Act.

96    The High Court considered the proper construction of these provisions of the Fair Work Act in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; 248 CLR 500. Taking into account the limitations of applying the reasoning and construction of provisions of Pt 3-1 of the Fair Work Act to Pt 9.4AAA of the Act, there are a number of observations in the judgments of the High Court that are apposite to the construction of Pt 9.4AAA and provide useful guidance on the approach to be taken to the interpretation of these provisions. Drawing on the reasoning of the High Court with that qualification, the approach I consider is to be taken to the determination of the reason or part of the reason for detrimental conduct is as follows: see, Barclay (No 1) at [42]-[45] (French CJ and Crennan J), [119]-[128] (Gummow and Hayne JJ), [149] (Heydon J).

(1)    The reason or part of the reason for detrimental conduct is a question of fact arising from the operation of interdependent provisions of Pt 9.4AAA of the Act. These provisions must be construed together and in accordance with the principles of statutory interpretation to which I have referred earlier in these reasons.

(2)    A respondent regulated entity interested in discharging the evidentiary onus of proving that the applicant’s claim is not made out in s 1317AD(2B) can be expected to rely, in its defence, upon direct testimony of the reason(s) of the person who engaged in the detrimental conduct.

(3)    The natural and ordinary meaning of the text of s 1317AD(1)(c) and s 1317AD(2B) informed by the context and purpose of the provisions of Pt 9.4AAA mean that direct evidence of the state of mind of the person who engaged in the detrimental conduct will bear upon the question of why the person engaged in the detrimental conduct, but the central question remains ‘what was the reason for the detrimental conduct?’

(4)    This is a question of fact which must be answered in light of all of the facts established in the proceeding. Generally, it will be difficult to prove the claim is not made out under s 1317AD(2B) if no direct testimony is given by the person who engaged in the detrimental conduct. Direct evidence of the reason why a person engaged in detrimental conduct, which may include positive evidence that the conduct was not engaged in for the proscribed reason, may be unreliable because of other contradictory evidence given by the person or because other objective facts are proven which contradict the person’s evidence. However, direct testimony from the person who engaged in the detrimental conduct which is accepted as reliable is capable of discharging the burden upon the regulated entity even though an applicant has demonstrated that a person engaged in detrimental conduct and that person believed or suspected that the applicant had made, may have made, proposed to make or could have made a disclosure that qualified for protection at the time of the detrimental conduct.

97    In addressing an earlier version of similar provisions in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, Mason J (at 616) rejected a construction of the provision favoured by Isaacs J in Pearce v WD Peacock & Co Ltd [1917] HCA 28; 23 CLR 199 (at 205) to the effect that the onus cast on the employer was to demonstrate that the proscribed reason ‘must not enter in any way into the reason of the [employer] if [it] desires exculpation’. Justice Mason, with whom Gibbs, Stephen and Jacobs JJ agreed, said (at 616):

The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer’s reasons for dismissal though it was not a substantial and operative factor in those reasons.

98    In Barclay (No 1) most members of the High Court made positive reference to the approach of Mason J to determining whether adverse action was taken for a proscribed reason or reasons that included a proscribed reason: Barclay (No 1) at [53]-[62] (French CJ and Crennan J), [104], [127] (Gummow and Hayne JJ).

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

100    The mere fact that a person considered or took into account a proscribed belief or suspicion in making a decision to engage in detrimental conduct does not answer the description of the reason or part of the reason for the detrimental conduct. The reason or part of the reason describes the or a reason that moved the person to engage in the detrimental conduct. If that reason was not a proscribed belief of suspicion, then even if such a belief or suspicion was taken into account as part of the process of decision making that resulted in the detrimental conduct, it would not answer the description of the reason or part of the reason for the detrimental conduct. By way of example or illustration, I have taken into account Neometals’ submissions on this point and they have influenced my reasons for the views I have expressed, but I have not accepted the submissions and they are not the reason or part of the reason for the views I have expressed: see, e.g., Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 at [91] (Perram J).

Attribution of conduct and state of mind to a company

101    Mr Reiche claims relief against Neometals. The proscribed detrimental conduct in s 1317AD(1) relates to the conduct, belief or suspicion and reasons of a ‘person’. It is axiomatic that a company is a legal fiction. It is a legal person which is separate from its members: Salomon v A Salomon & Co Ltd [1897] AC 22. That legal person has the characteristics of a natural person with legal capacity: s 124(1) of the Act.

102    In substance, a company is a set of rules. These rules are to be found in the Corporations legislation and, if any, the company’s constitution: s 134 of the Act. As a legal fiction a company can only conduct its affairs through the rules and (or) agency of natural persons. There are legal principles that determine what acts or omissions of natural persons are attributed to the company as acts or omissions of the company (as a legal person) as opposed to acts or omissions of a natural person for whom the company is legally responsible under some legal principle (e.g., as principal for the acts of an agent).

103    A unanimous decision of the members of a company in a shareholders’ meeting is regarded as a decision of the company. The replaceable rules, and in general a company’s constitution, provide that the business of a company is to be managed by or under the direction of the directors: s 198A, Pt 2G.1 of the Act. Accordingly, in general, decisions by resolution of the board of directors, as an organ of the company, are decisions of the company. Executing a document in accordance with s 127 of the Act is also an act of the company. These decisions and acts may be regarded as primary rules of attribution. Not every decision or act of a company can be performed by resolution of its directors or execution of a document in accordance with s 127. Therefore, the primary rules of attribution are supplemented by ordinary principles of agency by which acts of natural persons who are directors, officers, employees or other agents of the company are attributed to the company as principal. The primary rules of attribution, supplemented by the principles of agency, are normally sufficient to determine a company’s rights and obligations. In certain circumstances these rules do not provide the answer. An example is where a law is stated in language that is primarily applicable to a natural person, such as, a law that requires as part of legal responsibility that a person have a particular state of mind. In circumstances of that nature, identifying the state of mind of the company is not necessarily straightforward. However, where a statutory law imposes legal liability upon a person that has a particular state of mind, the question of whose state of mind is intended to count for the purposes of attributing liability to a company is resolved through the usual principles of statutory interpretation: see, e.g., the discussion in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 506-511 (Lord Hoffmann); Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352 at 354-355 (Callaway JA, Phillips CJ and Tadgell JA agreeing); Director General, Department of Education and Training v MT [2006] NSWCA 270; 67 NSWLR 237 at [16]-[24] (Spigelman CJ, Ipp JA and Hunt AJA agreeing); Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [94]-[101] (Edelman J, Allsop CJ agreeing).

104    In my view, it is clear that s 1317AD(1) is intended to impose legal liability upon a company. For the purposes of s 1317AD(1)(a), the conduct of a company that causes detriment to a whistleblower is conduct that is attributed to the company under the primary rules of attribution or ordinary rules of agency. For the purposes of s 1317AD(1)(b), the belief or suspicion is the state of mind of the organ of the company or the natural person whose conduct is attributed to the company for the purposes of s 1317AD(1)(a). For the purposes of s 1317AD(1)(c), the reasons or part of the reasons for the detrimental conduct are the reasons of the organ of the company or the natural person whose conduct and state of mind is attributed to the company for the purposes of s 1317AD(1)(a) and s 1317AD(1)(b).

105    It follows that where the applicable rule attributes the conduct of an individual natural person to Neometals, to discharge the onus of proof cast on it under s 1317AD(2B) Neometals must prove that the natural person’s reason for the detrimental conduct was not his or her belief or suspicion of an actual or potential whistleblower disclosure by Mr Reiche. However, a more difficult question arises in circumstances where the detrimental conduct may be attributed to more than one person or to the board of directors as an organ of the company.

106    The manner in which legal responsibility under s 1317AD and s 1317AE is to be attributed to Neometals as a body corporate was not addressed by Mr Reiche in his written or oral submissions. Neometals accepts that decisions of its board are attributed to it and that acts (and the state of mind) of employees or agents acting on behalf of Neometals with actual or apparent authority are attributed to it. Therefore, neither of the parties made submissions specifically addressing the attribution of conduct, state of mind and reasons in circumstances in which the conduct, state of mind or reasons of more than one person may be relevant.

107    Nonetheless, the parties’ submissions on the facts appear to be predicated on the assumption that if the decision of any one of the members of the board was moved because of a proscribed reason, then the whole decision was tainted by that proscribed reason for the purposes of s 1317AD(1)(b) and s 1317AD(1)(c). There is authority that supports that assumption or proposition: IW v City of Perth [1997] HCA 30; 191 CLR 1 at 31-33 (Toohey J), 47-48, 51 (Gummow J), 65-66 (Kirby J, in dissent as to the outcome). Likewise, the parties’ submissions on the facts also appear to be predicated on the assumption that where more than one natural person was involved in detrimental conduct, the state of mind of each of them is relevant and the question for the Court to determine is whether, as a matter of fact, the reason or part of the reason for the conduct was a belief or suspicion that one or more of the individuals held about an actual or potential whistleblower disclosure by Mr Reiche. In the context of the adverse action provisions of the Fair Work Act, there is authority for the proposition that a person who is involved in the process leading to the decision may be a decision-maker for a proscribed purpose: Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; 273 FCR 332 at [90]-[91], citing Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 and Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; 253 IR 166 at [121]-[122].

108    I am prepared to assume, without deciding, that where Mr Reiche has satisfied the threshold requirement of adducing or pointing to evidence that suggests a possibility that Neometals engaged in detrimental conduct through its board of directors, then Neometals bears the onus of proving that none of the directors believed or suspected that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA or that such a belief or suspicion on the part of one or more of the directors was not the reason or part of the reason for the board’s decision. The board’s decision would be tainted by the proscribed reason if at least one member of the board who was present and voted on the relevant resolution held the relevant belief or suspicion and that was the reason or part of the reason for that director’s decision to vote in favour of the resolution.

109    I am also prepared to assume, without deciding, that where Mr Reiche has satisfied the threshold requirement of adducing or pointing to evidence that suggests a possibility that Neometals engaged conduct through a decision of its board of directors or a natural person as agent that caused detriment to Mr Reiche and the conduct of another person was a material cause of the decision of the board or agent, then Neometals has an onus of proving that the other person’s conduct was not a material cause of the detrimental conduct, or that the other person did not have a proscribed belief or suspicion, or that the reason or part of the reason for the other person’s conduct was not a proscribed belief or suspicion. For example, if a person made a recommendation to the board or agent, Neometals may prove that the recommendation was not a material cause of the decision of the board or agent that resulted in detriment to Mr Reiche. Alternatively, if the recommendation was accepted, Neometals may prove that the recommending person did not have the proscribed belief or suspicion or, if so, that belief or suspicion was not the reason or part of the reason for the recommendation.

Evidence

Rulings on admissibility

110    Over the course of the trial there were numerous objections to evidence. Many objections and rulings were the subject of reasons given orally during the trial. Objections to the affidavit evidence of the witnesses called to give evidence were dealt with by a schedule of objections, responses and rulings. The schedule of objections is annexed as a Schedule to these reasons.

Mr Reiche

111    Mr Reiche was the only witness who gave evidence for the applicant. Mr Reiche’s evidence-in-chief was given in two affidavits. His affidavits were in part statement of fact, in part exhibiting documents and in part expressing opinions, conclusions, submissions or comments about facts, events or documents relating to the allegations in his concise statement. His evidence covered the six alleged disclosures and the conduct he alleged was detrimental.

112    English is not Mr Reiche’s first language. Nonetheless, he is fluent in English and his evidence was given in English. While proficient in English, I gained the impression that Mr Reiche did not necessarily always understand the questions he was asked during cross-examination. When answering questions, he sometimes used expressions or turns of phrase that a native English speaker would not use or used them incorrectly and he frequently gave long explanations that were not answers to the questions that he had been asked. There were times during his evidence when his voice was somewhat wavering, suggesting there were elements of emotion or nervousness. Making due allowance for comprehension, nervousness, anxiety and emotion, I nevertheless, formed the impression that Mr Reiche was largely intent on advocating for and advancing his case rather than giving evidence truly responsive to the questions that were asked of him in cross-examination. Some examples of this are given later in these reasons. Overall, my impression was that he was a witness who was trying to give truthful evidence, but his recollection of events was influenced by his perception about those events and his interest in advocating his position, as he saw it, for the benefit of his case. Therefore, where his evidence involves matters of controversy, I have approached it with caution and consider contemporaneous documentary evidence or oral evidence of other witnesses to be more reliable.

Mr Smith

113    Mr Smith was called and gave evidence for Neometals. Mr Smith is a legal practitioner and was in the position of general counsel for Neometals at the relevant time and remains in that role as a contractor and his contract will come to an end at the conclusion of the proceeding. Mr Smith gave relatively limited evidence that dealt primarily with the circumstances in which Mr Reiche made a formal whistleblower disclosure and a conversation with Mr Reed that preceded Mr Reed sending an email dated 11 July 2024 to Dr Purdie and Ms Di Virgilio.

114    Mr Smith was a careful witness. He was deliberate in that he evidently listened carefully to the question, considered his answer and provided answers that were generally no more than that which was necessary to answer directly the question. I consider Mr Smith gave his evidence in a forthright manner and was an honest and truthful witness. Notwithstanding that observation, when giving evidence on topics that were not covered in his evidence-in-chief I gained the impression that Mr Smith’s recollection of events was less than perfect as to when the events took place and (or) the sequence of events. As explained later in these reasons, the parts of his cross-examination when he was questioned about when he first informed Mr Guthrie of Mr Reiche’s formal whistleblower disclosure were unclear and were not clarified during his cross-examination or in re-examination. As a consequence, I regard Mr Smith’s evidence as to the timing of his discussion with Mr Guthrie less reliable than Mr Guthrie’s evidence on that subject and at odds with other aspects of Mr Smith and Mr Kelsall’s evidence about their response to the formal whistleblower disclosure which I accept.

Dr Purdie

115    Dr Purdie was called and gave evidence for Neometals. Dr Purdie has a PhD in chemical engineering. She was a non-executive member of the Neometals board until May 2024 when she was appointed as the COO for Neometals. Her evidence covered board meetings, her appointment as COO, her initial impressions of Mr Reiche and how she gradually reached the view that Mr Reiche was not suitable for the role of head of recycling, her involvement in the preparation of board papers that resulted in a decision to restructure the company and make the role of head of recycling redundant, her relationship with Mr Reiche as his line manager, her rejection of his TIL claim and other matters.

116    Dr Purdie gave me the impression that she is a firm, fair and no-nonsense person that does not suffer fools gladly. She gave her evidence in a careful, precise but slightly defensive manner. At times during her cross-examination she had a tendency to want to refer to her affidavit which gave the impression that her recollection of certain events was not particularly good. For example, she could not recall what Mr Reiche had said during board meetings in February and March 2024 in any detail, but was able to recall more technical information that was conveyed around the same time because, she said, she had more interest in the technical information. Overall, I consider Dr Purdie was an honest and truthful witness and I have no reason to doubt the veracity of the facts she could recall and about which she gave evidence.

Ms Di Virgilio

117    Ms Di Virgilio was called by and gave evidence for Neometals. She was employed by Neometals in the role of people and culture manager. She lost her job as a consequence of the restructure of the company that she recommended. She gave evidence concerning the view she formed that Mr Reiche was not suitable for the role of head of recycling. She also was the author of board papers that dealt with the restructure of the company. She explained the evolution of the papers and the reasons she recommended that Mr Reiche’s role be made redundant. She also gave evidence addressing Mr Reiche’s allegations of bullying and harassment, termination of his employment with immediate effect on her recommendation and other matters raised in Mr Reiche’s concise statement.

118    Ms Di Virgilio appeared to be nervous, but was not easily flustered. She gave her evidence at times with surprising candour. For example, during her cross-examination she said she did not have a great deal of respect for Mr Reed and another employee, but later said that did not mean she did not consider them competent. She also candidly explained that she suspected that Mr Reiche may have made a whistleblower disclosure at or around the time that she was preparing a board paper to restructure the company in terms that recommended that Mr Reiche’s role be made redundant.

119    As her cross-examination progressed, it became relatively clear that she had formed an adverse view of Mr Reiche fairly early in her dealings with him. Towards the end of her cross-examination she said that she had not read Mr Reiche’s formal whistleblowing disclosure document because she had ‘wasted enough of [her] life already reading Christian’s emails. [She] did not want to read any more.’ Ms Di Virgilio denied resenting Mr Reiche, but that exchange revealed that she had a degree of antipathy towards Mr Reiche. Nonetheless, I did not gain the impression that Ms Di Virgilio’s views about Mr Reiche, as a person, influenced her evidence or her reasons for recommending that his role be made redundant other than the extent to which his character traits influenced her views about his performance and suitability for a senior management role. As already mentioned, Ms Di Virgilio was a very candid witness who distinguished between her views about personality and competence. She is no longer employed by Neometals and had recommended that her own role be made redundant. I consider her to have been the most independent witness who gave evidence during the trial. She was a reliable, honest and truthful witness.

Mr Reed

120    Mr Reed was called and gave evidence for Neometals. He is Neometals’ CEO. He gave evidence relating to the matters Mr Reiche raised at board meetings and his allegations of reverse engineering and forgery. Mr Reed gave evidence about his state of mind when these matters were raised with him to the effect that he did not consider them to involve whistleblowing disclosures, when he became aware of the formal whistleblowing disclosure, and his reasons for voting in favour of a restructure proposal that made Mr Reiche’s role redundant, for terminating his employment with immediate effect and for rejecting his TIL claim.

121    Mr Reed was a careful, if somewhat guarded, witness. He gave the impression of someone that was doing his best to understand and answer the cross-examiner’s questions. With two exceptions, he largely gave me no reason to doubt the veracity of his evidence.

122    The first exception was his evidence about the reverse engineering allegation. In this respect he gave evidence to the effect that ‘reverse engineering’ does not necessarily imply illegality, but immorality. He said that he had ‘googled’ the term. That evidence suggests that his view about the meaning of ‘reverse engineering’ was reconstruction and not evidence of what he understood that term to mean at the time of his discussion with Mr Reiche. I also formed the impression that Mr Reed was downplaying the significance of Mr Reiche’s concerns so as to provide an explanation for Mr Reed not intervening and investigating Mr Reiche’s allegations at the time they were made. Notwithstanding the credibility concerns I have about this aspect of Mr Reed’s evidence, for various other reasons explained later, I accept Mr Reed’s evidence to the effect that he did not consider Mr Reiche to be making a whistleblower disclosure about reverse engineering at the time Mr Reiche raised it with him.

123    The second exception was his evidence about his reasons for rejecting Mr Reiche’s TIL claim. Mr Reed’s evidence about when he was involved in the decision to reject the TIL claim was quite unclear. As explained later, it is not possible to make a finding as to when, or why, Mr Reed was involved in that rejection because the evidence suggests that the TIL claim was rejected by a decision of Dr Purdie. I formed the impression that Mr Reed’s evidence about the TIL claim was founded on a more recent decision, in effect, to confirm Dr Purdie’s rejection of the TIL claim. The reasons given appeared to be more in the nature of a justification for not reversing the decision rather than making the decision in the first place.

124    Subject to those observations, I consider Mr Reed’s evidence to be reliable.

Mr Cole

125    Mr Cole was called and gave evidence for Neometals. Mr Cole is a lawyer and the non-executive chair of the board of directors of Neometals. Mr Cole gave evidence regarding Mr Reiche’s presentations to the board, the structure of the joint venture and Primobius, the contractual arrangements involving Primobius, Mr Reiche’s disclosure of the forgery allegation to him, his state of mind about when he first believed or suspected Mr Reiche had made a whistleblower disclosure and his reasons for voting in favour of a resolution to restructure the company including making Mr Reiche’s role redundant.

126    Mr Cole was an impressive witness. He was a forthright and matter-of-fact witness. I formed the impression that he had a good recollection of the key events. He made appropriate concessions during his cross-examination. I consider him to be an honest and truthful witness. I have no reason to doubt the veracity of his evidence.

Mr Guthrie and Mr Ritchie

127    Mr Guthrie was called and gave evidence for Neometals. He has degrees in engineering and marketing and is a non-executive director of Neometals. Before his appointment as a non-executive director he had worked for about 40 years as an engineer in project delivery. From mid-2024 he was chair of the company’s risk committee.

128    Mr Ritchie was also called and gave evidence for Neometals. He is a lawyer and non-executive director of Neometals. He has about 48 years’ experience in the mining industry. He has held non-executive directorships with a number of mining and resource companies. He has also held positions as managing director, general manager and other management positions within mining and exploration companies.

129    Both Mr Guthrie and Mr Ritchie gave evidence about Mr Reiche’s presentations to the board, their states of mind, when they first believed that Mr Reiche had made a whistleblower disclosure and their reasons for voting in favour of the restructuring proposal. They gave their evidence in a forthright and straightforward manner. I formed the impression that they were both honest and truthful witnesses. While their recollections of the key events did not appear to be as complete as those of Mr Cole, Mr Reed and Mr Reiche, I have no reason to doubt the veracity of their evidence.

Mr Kelsall

130    Mr Kelsall was called and gave evidence for Neometals. From 1 July 2024 Mr Kelsall was employed as CFO of Neometals. He has degrees in law and finance and other qualifications relating to business strategy, management and finance. He has held many executive and non-executive positions in a number of corporations. He gave evidence about his employment with Neometals and the view he formed was that a restructure was necessary and should be accelerated. He gave evidence of his discussions with Dr Purdie and Ms Di Virgilio about the restructure. He also gave evidence of the circumstances in which he became aware of Mr Reiche’s formal whistleblower disclosure and meetings and discussions he had with Mr Reiche and Mr Smith about that matter.

131    Mr Kelsall’s credit was called into question because, when he gave his evidence-in-chief, he amended what he had said in his affidavit made before the trial about his involvement in the preparation of a board paper Ms Di Virgilio prepared dated 26 July 2024. His original statement said that he was involved in a meeting to discuss the paper which did not involve discussions about the future leadership of Primobius nor was his opinion sought on that topic. When he was called to give evidence, he said the meeting did involve discussion of the future leadership of Primobius. While Mr Kelsall provided an explanation for the change during his cross-examination, and I accept that explanation, the change was described accurately by counsel for Mr Reiche as a 180-degree turn. Such a significant change so late in the day inevitably renders the evidence difficult to accept in either direction.

132    Mr Kelsall was cross-examined regarding the steps taken to investigate Mr Reiche’s allegations after Mr Kelsall and Mr Smith met with Mr Reiche on 11 July 2024. Mr Kelsall’s responses to that line of questioning tended to be argumentative or not in direct answer to the questions. He used the expression ‘let’s be clear’ repeatedly as a preface to his answers which gave the impression that he was advocating for a position rather than giving evidence. However, in fairness to Mr Kelsall, he was involved rather late in the events and was not a primary decision-maker. He provided an explanation for the absence of commencing an investigation after 11 July 2024 that was consistent with Mr Smith’s evidence. Moreover, Mr Reiche had not raised as an issue in the proceeding that there had been a failure on the part of Neometals to investigate the allegations he had made in his formal whistleblower document or that such a failure was of any significance for Mr Reiche’s case in the proceeding. Therefore, Mr Kelsall’s somewhat defensive attitude towards the suggestion that there had been a failure to commence an investigation may be partly explained by the novelty of the allegation. While, for the reasons given, I have approached Mr Kelsall’s evidence with a degree of caution, I have nonetheless largely accepted it because it is consistent with the evidence of other witnesses whose evidence is not in doubt.

Documents

133    Numerous documents were tendered as exhibits to the affidavit evidence of Mr Reiche, Dr Purdie, Ms Di Virgilio and Mr Cole. Objection was taken to the previous representations in certain documents. Rulings were made on those objections and the rulings are reflected in the decisions in the Schedule to these reasons. However, objection was not taken to all documents that contain previous representations. Further, the previous representations in those documents do not obviously fall within one or more of the exceptions in ss 60-64, 66A-75, 81-84, 87 and 88 of the Evidence Act 1995 (Cth). Nonetheless, a document containing a previous representation may be admitted into evidence, notwithstanding that it is not otherwise admissible under an exception to the hearsay rule, by agreement between the parties or it may be tendered and admitted without objection from the other party. In these circumstances, the previous representation is in evidence and may be given such probative weight as the Court may consider appropriate on all relevant issues: see, e.g., Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 214, 219-220; McLennan v Taylor [1966] 2 NSWR 685; 85 WN(PT1) (NSW) 525 at 528-529, 537-538, 540. That is the approach that I have taken to previous representations in documents admitted by agreement or without objection.

134    There were numerous documents tendered separately or as exhibits to the affidavit evidence. The parties made specific reference in written or oral submissions to a relatively small number of the documents in evidence. In addition to the absence of submission on most documents tendered, there was a large amount of duplication, in particular, of email communications containing chains or series of emails. The significance of many documents, without submission or explanation, was not obvious. A large number of documents were referred to or characterised in affidavits in a general way and then exhibited without further explanation or submission. Having regard to the large number and volume of documents and absence of explanation or submission, unless the significance of a document and its contents is self-evident or otherwise of obvious relevance or specific reference is made to it by a witness or in a party’s submissions, I have not regarded the document as having any probative weight or significance to the matters in issue in the proceeding.

Findings of primary facts

135    The evidence of the witnesses was largely consistent regarding what Mr Reiche alleged were the first to sixth disclosures. There were differences in the evidence regarding the significance of the information Mr Reiche communicated and the responses of the witnesses, in particular Mr Cole and Mr Reed, to whom the information was provided. In general, I accept the evidence of all witnesses and my findings are based on either consistent or unchallenged oral evidence or the contents of documents. Where there was a significant inconsistency in evidence or evidence that was the subject of substantive challenge in cross-examination and that evidence has a bearing on a relevant finding of fact, I have explained the manner in which I have resolved the inconsistency and my reasons for accepting or rejecting evidence as is necessary. Where I have not provided any reference to the source of the evidence for the finding, that is because it was either not controversial or the evidence on the subject was consistent and (or) not seriously challenged.

136    There was no reference in the parties’ written or oral submissions to a significant amount of the evidence-in-chief contained in the affidavits. There was also lengthy cross-examination of witnesses that was not of obvious relevance to any matter in question in the proceeding. Due to identification of the issues through concise statements, as particularised by affidavits, the nature of the onus of proof cast on Neometals, and the wide-ranging nature of the cross-examination of Neometals’ witnesses, identification of the facts upon which findings are necessary to resolve the matters in question in the proceeding has not been straightforward.

137    The parties were requested to make submissions to the Court as to the findings of fact that they each asked the Court to make, but that was either not done or not done in a way that identified with any precision the findings of fact and evidence in support of the findings advanced. Further, although there was no formal abandonment of the allegations of bullying and harassment, these allegations were barely mentioned during trial. As a consequence of these matters, I have made findings of fact on any contested issue or fact arising from the parties’ submissions, concise statements and affidavits that are of apparent relevance to Mr Reiche’s claim or Neometals’ defence. However, many of these facts have no bearing on the ultimate conclusions I have reached.

Primobius joint venture

138    Neometals is a listed public company incorporated in Western Australia. It operates in the mining sector with a focus on sustainable processing solutions that recycle and recover critical materials from high-value waste streams and the commercialisation of patented lithium-ion battery recycling technology.

139    ACN 630 is a private company incorporated in Australia. As of 7 December 2022, ACN 630 was a wholly owned subsidiary of Neometals. ACN 630 is the owner of certain patents and know-how (recycling technology).

140    SMS is a company incorporated in Germany.

141    Primobius is a company incorporated in Germany.

142    SMS and Neometals each hold half of the issued shares in Primobius. SMS and Neometals established Primobius for the purpose of conducting certain evaluation activities and to exploit the recycling technology through a business related to lithium-ion battery recycling.

143    Neometals, ACN 630, SMS and Primobius made an agreement styled ‘Amended and Restatement Agreement – Shareholders Agreement’ dated 7 December 2022. The shareholders agreement was in evidence. The agreement set out the terms governing the relationship between SMS and Neometals as shareholders of Primobius and the terms upon which their joint venture is to be managed. The joint venture arrangement between Neometals and SMS is functionally complementary between the venturers. Neometals provides intellectual property and technology development and SMS provides engineering and project management.

144    In accordance with the shareholders agreement the corporate bodies of Primobius comprise: (1) the management board; (2) the advisory (supervisory) board; and (3) the shareholders meeting. The management board is responsible for the day-to-day management of the company. The advisory board is responsible for supervision of the management board. The shareholders meeting is to make decisions on all matters reserved to the shareholders meeting under applicable mandatory law. The shareholders meeting is also to resolve certain matters including appointments to the advisory board and management board.

145    In accordance with the shareholders agreement the management board was to comprise two directors. SMS and Neometals are to jointly appoint all directors. Neometals and SMS each have the right to propose the appointment of one director. Neometals must vote in favour of the appointment or replacement of a director proposed by SMS and vice versa. Each director has one vote at meetings and all resolutions, except those where a greater majority is required under the company constitution or an applicable law, are to be decided by a simple majority.

146    In accordance with the shareholders agreement the advisory board is to comprise four members which must be natural persons. Neometals and SMS each have the right to appoint two members to the advisory board. The shareholder that has appointed a member has the exclusive right to remove and replace that member. Each member of the advisory board has one vote. Unless otherwise stipulated, resolutions are to be passed by a simple majority. However, resolutions on certain fundamental matters require a unanimous vote. The fundamental matters include capital calls to shareholders. Where a conflict of interest exists, the member with the conflict of interest is not entitled to be present or to vote on the matter the subject of the conflict.

147    In accordance with the shareholders agreement, in most cases, including fundamental matters, if there is a deadlock on the management board or advisory board that cannot be broken by agreement, the management board or advisory board is taken to have recommended no action on the subject matter of the deadlock. The shareholders agreement also contains provisions, amongst others, for SMS to be issued with shares in ACN 630, preparation and approval of business plans, distributions, SMS’s first rights for design and construction of recycling plants, Neometals’ first rights for marketing products produced by Primobius, and funding commercial operations.

148    The substantive effect of the provisions for funding commercial operations is that, in certain circumstances, the management board may recommend and the advisory board may agree to make cash calls for funding from Neometals and SMS. If either Neometals or SMS does not provide funds in accordance with the call the other may elect to provide that funding by way of share subscription or loan. If made by way of share subscription it would have the effect of diluting the interest of the non-contributing shareholder. However, because a cash call is a fundamental matter, the cash call could not be made in the first place without the unanimous agreement of the members of the advisory board.

149    Mr Krenn is the SMS appointment and director on the management board. Mr Reiche was the Neometals’ appointment and director on the management board. Before Mr Reiche, Ms Gray was Neometals’ appointment and director on the management board. Notwithstanding the terms of the shareholders agreement, at some point before October 2023, Dr Siemon was appointed as an additional director and member of the management board. Mr Cole described Dr Siemon as the ‘first among equals’. Dr Siemon is an employee of Primobius. He was formerly an employee of SMS or another company within that group. From 1 January 2024, when he became an employee of Primobius, he was legally and notionally independent. I infer from the provisions of the shareholders agreement that each of Neometals and SMS, as shareholders, agreed to the appointment of Dr Siemon. Mr Cole and Mr Reed are Neometals’ appointments and members of the advisory board.

150    At some time before October 2023, Primobius made a contract for the engineering, design and construction of a battery recycling plant at Kuppenheim in Germany referred to as the MURG project. The contract was not in evidence but many witnesses gave secondary evidence of its existence, general terms and the parties to it. The contract was made with a counter-party within the Mercedes-Benz group.

151    Primobius subcontracted the work the subject of the MURG project to SAT Austria. SAT Austria is related to SMS. Mr Cole, Mr Reed, Mr Guthrie and Mr Smith were cross-examined about their knowledge or understanding of Mr Krenn’s relationship with SAT Austria. While that evidence was not completely consistent and is not sufficient to make any finding of fact about that relationship, the common element of that evidence was an understanding that Mr Krenn is a managing director of SAT Austria and has some form of financial interest in that company or, at least, the revenue derived from its subcontract with Primobius. Based on that evidence, I accept that Mr Reiche believed and had reasonable grounds to believe that Mr Krenn was a managing director of Primobius (principal) and a managing director of SAT Austria (contractor) and that Mr Krenn had some form of financial interest linked to SAT Austria and its subcontract with Primobius.

152    Mr Cole, Mr Reed and Dr Purdie were also cross-examined about the nature of the relationship between Primobius and SAT Austria. Their evidence was generally consistent and was to the effect that the subcontract between Primobius and SAT Austria is a lump-sum contract. SAT Austria does not provide Primobius with any details about the actual costs of construction. That is, it is not an open-book contract. However, SAT Austria bears the risk that the actual costs of construction exceed the lump-sum.

153    I conclude that, as a matter of division of contractual risk, Primobius has the certainty of a lump-sum contract price for that component of the MURG project work that is the subject of its subcontract with SAT Austria. The risk that the actual costs will be greater is borne by SAT Austria. Likewise, SAT Austria enjoys the chance to make a substantial profit if the actual costs are less than the costs that were used to estimate the lump-sum contract price.

154    Mr Cole, Mr Reed and Dr Purdie also gave generally consistent evidence, which I accept, that under the arrangements between SAT Austria and Primobius, Primobius renders invoices to the Mercedes-Benz counter-party. Upon payment of those invoices, 97% of the payment is paid to SAT Austria under the lump-sum contract and Primobius retains 3%. Put another way, Primobius enjoys the certitude of making a margin of 3% on that component of the MURG project work that is performed by SAT Austria. While SAT will be paid 97% of the revenue for that work, it bears all risk that the 97% will not cover the actual costs incurred in construction of the project.

155    Mr Cole gave evidence to the effect that although SMS may have had a greater percentage of revenue from Mercedes-Benz arising from the subcontract with Primobius, there were special reasons why that position had been agreed to by the Neometals appointees to the Primobius advisory board. It was not intended that these would be a benchmark or precedent for the future. An agreement has been reached that for any new subcontracts for which SMS is the primary subcontractor, Primobius will be allowed an ‘acceptable margin’ and without necessarily having to subcontract with SMS if mutually acceptable terms cannot be agreed. That evidence was not challenged and I accept it.

Employment of Mr Reiche

156    On 3 October 2023 Mr Reiche and Mr Reed signed a written contract of employment by which Mr Reiche was employed in the position of head of recycling. Thereafter, Mr Reiche commenced his employment with Neometals on 9 October 2023.

157    The position description incorporated into the contract of employment included the following:

(a)    involvement at meetings of the Primobius advisory board, and where necessary, as an active participant;

(b)    supervision of Primobius activities from the management board level to ensure, amongst other things, Primobius strategy, activities and decision-making is compatible with Neometals’ interest, communication of Primobius activities to Neometals CEO/COO and full access for Neometals of Primobius’ financial and operating data;

(c)    identifying and managing risks to Neometals and developing strategies for managing these risks;

(d)    ensuring that organisational culture within the project is consistent with the purpose, principles and core values set by the Neometals board; and

(e)    liaising with other Primobius joint venture shareholders and maintaining key stakeholder relationships.

158    Neometals had a ‘Whistleblower Policy’, for the purpose of s 1317AI of the Act, in place during Mr Reiche’s employment and that policy was made available to him.

Mr Reiche’s early relationship with Mr Krenn and Dr Siemon

159    The scope and responsibilities of Mr Reiche in his position as head of recycling included liaising with Primobius shareholders and maintenance of key stakeholder relationships. However, from the commencement of Mr Reiche’s employment and appointment as a managing director of Primobius he had a strained relationship with Dr Siemon and, in particular, Mr Krenn.

160    Mr Reiche gave evidence in which he expressed the view that his initial interactions with Dr Siemon and Mr Krenn involved aggressive behaviour, undermining tactics and hostile communication. Mr Reiche said he felt bullied.

161    Mr Cole gave evidence that after Mr Reiche had travelled to Germany to meet with Mr Krenn and Dr Siemon around November 2023, Mr Reiche had advised him that Mr Reiche had been the recipient of inappropriate bullying and inappropriate behaviours by Dr Siemon and Mr Krenn and that one of Mr Reiche’s direct technical managerial reports, Adam Farghaly, had resigned because of bullying.

162    The bullying allegations were disputed. Mr Cole gave evidence that the SMS-appointed members of the Primobius advisory board had expressed strong and vehement concerns about Mr Reiche’s assertions and conduct. The concerns about Mr Reiche’s conduct were not confined to the disputed allegations of bullying and related to Mr Reiche arranging and meeting with representatives of Mercedes-Benz without reference to Mr Krenn and Dr Siemon.

163    Mr Cole gave evidence to the effect that, amongst other things, restrictions on travel during the COVID-19 pandemic had materially curtailed development of strong and cohesive interpersonal and business relationships between the joint venture partners and the absence of Neometals personnel ‘on-the-ground’ in Germany had resulted in SMS assuming a more dominant role in the operational affairs of Primobius than might otherwise have been the case. Building trust and rapport between the joint venture partners and associated personnel was an important consideration in the selection of Mr Reiche for his role due to his German heritage. Mr Cole said that given these matters and that he was chair of the Primobius advisory board he took an active role in engaging in and resolving the apparent tension that had arisen. Following discussions with the Primobius advisory board members an agreement was reached that Mr Cole and a senior manager from SMS would conduct an investigation into the assertions.

164    Mr Cole said that after extensive discussions and conciliatory intervention and encouragement, by around late November or early December 2023, his understanding and belief was that a conciliatory explanation and outcome had been negotiated to redress the tensions that had existed and offences that had been taken and that the concerns had been de-escalated and resolved and the joint venture relationship had been re-affirmed. Mr Cole said that he had sighted emails from Mr Farghaly refuting Mr Reiche’s claim that he had been bullied and that was the cause of his resignation, as well as an email from Mr Reiche withdrawing the allegation.

165    On 14 November 2023 Mr Cole sent an email to Torsten Heising and Holger Rief, copied to Mr Reed, which Mr Cole describes as ‘a memorandum touching on a number of issues that over recent days have been raised, and to seek to get a balanced perspective of matters, and to assist the Advisory Board in seeking to find a pathway forward’. The email is generally consistent with Mr Cole’s explanation of the tensions that had arisen and suggested a way of addressing them. I infer that Mr Heising and Mr Rief are the SMS appointees to the Primobius advisory board.

166    There was an email in evidence from Mr Farghaly to Mr Reiche, copied to Mr Krenn and Dr Siemon dated 29 November 2023. I infer from the contents of that email that it is the email Mr Cole said he sighted from Mr Farghaly refuting Mr Reiche’s allegation that he resigned due to bullying. In the email Mr Farghaly sets out his reasons for resigning none of which were due to bullying. The email includes the following statement which is relevant to the view Ms Di Virgilio formed about Mr Reiche’s suitability for the role referred to later in these reasons:

…

Your actions indicate that you have misunderstood why I quit. I genuinely enjoy working on challenging projects which is why I offered to help if it was under a better working environment. I know I can bring a lot to this project and am excited for what it can become.

Instead, I believe that you are not looking out for your employees and are using my situation as an opportunity for personal gain. Lying about my mental health and making up that I am getting bullied is ethically crossing the line. You told me that Horst was bullying me and that I must take mental health leave and return to Perth immediately. This was because you wanted to use it as a reason to break up the JV and start an anode research centre in Germany. I repeatedly told you this was not the case for multiple days in a row before you listened to me. The fact that you still contacted Michel about it on the Saturday after us continuously arguing that your accusations were false highlights how difficult it is working with you. When Michel wanted to proceed with an investigation, you then instructed me to tell people that you had only spoken about it [to] me on the following Monday. On multiple occasions you instructed me to contact HR and say things like “I don't want to work for Horst or Michel due to the politics”.

To be clear, I was never bullied and never requested mental health leave, I also am wanting to leave because of your politics not Horst or Michel.

For these reasons (and I can provide more examples if needed) I will not work for you. I cannot and will not ever trust you.

…

167    Mr Cole gave evidence that in a meeting involving the Primobius advisory board and management board, the advisory board communicated its expectation that the managing directors were to work in an open, transparent, cooperative and collaborative manner. After that process Mr Cole was of the view that the matter had been ‘put to bed’. However, in subsequent months it came to Mr Cole’s attention, through emails to which he was copied, and comments by Mr Reiche and other Neometals personnel, that Mr Reiche continued to raise various issues of concern with respect to the joint venture operations and in relation to Dr Siemon and Mr Krenn in particular.

168    On 14 February 2024 Mr Reiche forwarded various email exchanges between Mr Reiche, Dr Siemon and Mr Krenn to Ms Di Virgilio. Ms Di Virgilio responded with an email advising Mr Reiche to discuss the matter promptly with Mr Reed and make Mr Reed ‘aware of Horst [Krenn]’s comments and that you are not prepared to continue to be communicated with in this manner and he needs to address this with Horst as your direct manager’. The email exchanges were on 14 February 2024 and are in English. However, I infer that the first language of Dr Siemon and Mr Krenn, like Mr Reiche, is German. It is also evident from Mr Krenn’s emails that his command of written English is relatively basic and inferior to that of Dr Siemon and Mr Reiche. Without context or explanation, the email chains are difficult to understand. However, allowing for Mr Krenn’s lack of proficiency in English, while blunt I would not regard them as unreasonable or overbearing. The rudest example is in the following terms:

…

Dear Christian!

I recommend you not stay in your position further. It was outlined by SMS board in the board meeting that we do not share our internal calculation with Neometals.

What is exactly your point you are asking for or you like to find out?

I will go back and will forward up to next week – but it getting now time for value add from your end for topics in daily business to solve.

I could not participate the meeting today but to be transparent about my opinion I do not support a R&D office in Perth it seems we stepwise return to the same situation like couple month ago.

…

169    On 15 February 2024 Mr Reiche sent Mr Reed, copied to Ms Di Virgilio, an email in the following terms:

…

Hi Chris,

Please find Horst's emails to my request for scope of supply where he threatens and to the interaction with Hanna Wolf (SMS Hilchenbach) where he undermines me with Hanna Wolf in cc, after I have already discussed this with Michel. I have consulted with Amanda and we believe the following email to Horst should address this behaviour.

-----

Subject: Urgent: Unacceptable Behaviour in Recent Communication

Dear Horst,

I am writing to express my deep concern regarding our recent email exchanges. Your messages have crossed a line, and I must address the bullying behaviour I have experienced.

The threatening and undermining tone of your emails is unacceptable. It has caused me significant distress, and I refuse to tolerate such behaviour in any form. I am disappointed that it has become a recurring issue in our communication.

This matter is serious, and I insist on an immediate resolution. Your words and actions have impacted my wellbeing and our working relationship. Therefore, I request that we arrange a meeting as soon as possible either in person or via a video call. We must have an open and honest conversation about the implications of your tone and the ways in which it has affected me. I believe that this is the only way to move forward in a manner that is respectful and conducive to a positive working environment.

I hope that you will recognize the urgency of this situation and respond promptly so that we can address these concerns without delay.

I look forward to your immediate attention to this matter.

…

170    The emails of Mr Krenn do not strike me as containing communications of the kind that could reasonably be characterised as bullying or having a threatening or undermining tone. Nor would I expect Mr Reiche, as a senior manager, to require the intervention of the CEO of a publicly listed company to resolve what appear to be, in part, differences of opinion between the managing directors of Primobius and, in part, difficulties communicating in English as a second language. Consistently with that view, by an email sent 15 February 2024, in substance, Ms Di Virgilio advised Mr Reiche to talk with Mr Krenn. Mr Reiche sent Mr Reed and Ms Di Virgilio an amended version of the proposed email on 16 February 2024 that commenced: ‘Thank you Both for your feedback. I much value it.’ The draft in that letter removes the allegations about bullying and a threatening or undermining tone and is in more conciliatory terms. There is a handwritten note on the email to the effect that Mr Reed advised Mr Reiche not to send anything to Mr Krenn.

171    On 16 February 2024 Mr Reiche forwarded to Mr Reed, copied to Ms Di Virgilio, a chain of email exchanges between Mr Reiche and Dr Siemon. Mr Reiche said: ‘This email shows that Michel [Siemon] is not a facilitator, is not independent, and always uses any opportunity to make me look bad.’ The email exchanges included the earlier emails Mr Reiche had characterised as bullying, threatening and undermining, and other communications in which Mr Reiche sought technical information. In my view, there is nothing in the email exchanges forwarded with that email that support Mr Reiche’s characterisation of Dr Siemon’s conduct. However, on 15 February 2024, Mr Reed sent an email to Dr Siemon requesting assistance in obtaining important information required for risk mitigation in the MURG project. Dr Siemon responded the following day.

172    On 17 February 2024 Mr Reiche forwarded to Mr Reed, copied to Ms Di Virgilio, another chain of emails between Mr Reiche and Dr Siemon. In Mr Reiche’s email to Mr Reed he alleged that Dr Siemon ‘only wants to sell plants and is not interested in establishing a Recycling business’. The manner in which the email chain supports Mr Reiche’s allegations is not clear or obvious.

173    On 26 February 2024 Mr Reiche sent Mr Reed an email again forwarding email exchanges with Dr Siemon. In that email Mr Reiche alleged that Dr Siemon was undermining him. In the exchange Mr Reiche asserts that all communications related to assigning tasks to him should go through him. Dr Siemon apologised for bypassing Mr Reiche’s ‘chain of command’, but added that although he was ‘a fan of flat hierarchies’ he would consider Mr Reiche’s wishes. Again, the manner in which the email chain supports that allegation is neither clear nor obvious.

174    On 27 February 2024 there was a meeting of the Primobius advisory board. The meeting was attended by Dr Siemon, Mr Krenn and Mr Reiche. During the meeting Mr Reiche disagreed with some of the statements that Dr Siemon and Mr Krenn had made on behalf of the management board. Mr Reiche asserted that he had not been adequately consulted about what was said and that Dr Siemon had changed the presentation to the advisory board without Mr Reiche’s approval. Mr Reiche said his primary allegiance was to Neometals and not to Primobius. The SMS appointees to the advisory board expressed consternation. Mr Cole undertook to have a discussion with Mr Reiche about his role and responsibilities as a managing director of Primobius.

175    Mr Cole had discussions with Mr Reiche from which he concluded that the tensions between Mr Reiche and Dr Siemon and Mr Krenn had not been completely resolved. In late February 2024 Mr Cole facilitated a trip to the Margaret River region of Western Australia attended by Mr Cole, Mr Reed, Mr Reiche and Dr Siemon for the purpose of fostering goodwill and improving relations between Mr Reiche and Dr Siemon. Mr Cole and Mr Reed also concluded that Mr Reiche should be supported with respect to his interpersonal and professional development. Mr Cole took it upon himself to provide some mentoring and Neometals would fund an executive coach for Mr Reiche.

Strategic risks and conflict of interest

176    The Neometals board held a meeting over two days on 20 and 21 February 2024. Mr Reiche attended that meeting and gave a presentation to the board. The slides of the presentation were tendered. Although the slides in evidence were dated 20 February 2023 and the foot of some of the pages are dated 19 August 2024, Mr Reiche gave unchallenged evidence that he gave a presentation at the meeting and the slides were used in the presentation given at the meeting. I accept that Mr Reiche gave a presentation at that meeting and he raised the matters referred to in the slide presentation.

177    The slide presentation was headed ‘Strategic Initiatives & Governance Enhancement Proposal for Neometals Board Consideration’. The first slide depicted the SMS group structure. The second slide sets out the Primobius organisational structure following the shareholders agreement. The third slide was another depiction of the SMS group structure with additional notes and SAT Austria highlighted. The fourth slide sets out the Primobius organisational structure described as the ‘true’ structure or ‘reality’. The fourth slide represents that all activities that Primobius should be performing under its organisational structure were being performed by SAT Austria with the exception of flow sheet development (IP, trade secrets) and process engineering. It contains statements to the effect that SAT Austria owns all product engineering specifications and documentation and is not motivated to establish this know-how within Primobius, that SAT Austria manages client interactions, contracts, scope, specifications, and the change request procedure and is the management contractor for project execution. It also includes a statement that SMS/SAT Austria had communicated not to support an ‘open-book’ commercial arrangement with Primobius.

178    The slide presentation ends with four requests. (1) Appointment of a chief financial officer as a fourth managing director of Primobius. (2) Development of a policy for a Primobius joint venture shared server to align the Primobius executive team with Neometals’ expectations as a shareholder and foster a sustainable corporate structure. (3) Endorsement of a legal process and governance policy for Primobius. (4) Establishing a Primobius code of conduct.

179    Mr Reiche gave unchallenged evidence to the effect that the presentation included his identification of the following issues.

(a)    Governance weaknesses within Primobius, primarily stemming from the conflict of interest posed by Mr Krenn's dual role as managing director of both SAT Austria, the sole supplier to Primobius, and Primobius itself.

(b)    Financial risks associated with asymmetrical contracts that disproportionately favoured SMS over Primobius, leaving Neometals in a vulnerable position.

(c)    The potential for cash calls initiated by SMS, designed to dilute Neometals’ stake in Primobius, particularly because Neometals might not be able to match the financial contributions required.

(d)    The lack of open-book arrangements with SMS, which made it impossible for Neometals to ensure financial transparency and verify cost allocations.

180    A further Neometals board meeting was held on 13 March 2024. Before that meeting Mr Reiche gave a briefing to directors that Dr Purdie had requested by an email to him sent on 28 February 2024. While Dr Purdie had requested a briefing ‘to better understand the status of trials of the [lithium] battery recycling flowsheet, what is to be built for MURG, and what risks the [Neometals] team perceive with the plant as it is to be constructed’, I accept Mr Reiche’s unchallenged evidence that he took that opportunity to again raise concerns he had with governance, conflicts and the contractual arrangements between Primobius and SAT Austria.

181    As already mentioned, Mr Reiche gave evidence to the effect that he delivered a presentation entitled ‘Primobius – Strategic Initiatives & Governance Enhancement’. He identified that document and a document he described as a handout as documents that were a certain number of pages of an exhibit to his affidavit. One of the documents identified is a presentation entitled ‘LIB – NMT Board Briefing Management Framework’ which is dated 13 March 2024. The other document, described as the handout, has a watermark ‘Private Not For Distribution’ printed diagonally across each page. None of that evidence was challenged. Therefore, although the document in evidence has a different title, I accept that Mr Reiche delivered and spoke to the presentation document and provided the handout to the attendees at a board meeting held on 13 March 2024.

182    Mr Reiche also gave unchallenged evidence to the effect that, towards the end of his presentation, he focussed on the following strategic risks arising from the joint venture:

(a)    I emphasized that Primobius was not in control of the contractual negotiations with key [customers]. Instead, SAT Austria (a subsidiary of SMS) was directly managing these contracts, bypassing Primobius entirely. This lack of control posed a significant risk, as Primobius had no say in the terms or scope of the projects.

(b)    I pointed out the clear strategic misalignment between [Neometals] and SMS. The governance structure of Primobius gave SMS disproportionate influence over decision-making, which meant that Primobius was being sidelined in critical project discussions.

(c)    A major risk I highlighted was the lack of proper engineering deliverables from SMS, in that the documents required for Mercedes-Benz projects were either incomplete or not properly reviewed. This was not only delaying the project but also increasing the financial exposure for Primobius, as SMS was not fulfilling its obligations.

(d)    The governance structure within Primobius was an issue in that the Advisory Board and Management Board of Primobius were not independent, as SMS held a 2:1 voting advantage. This imbalance allowed SMS to control critical decisions while sidelining [Neometals’] interests. I emphasized that Krenn's dual role as Managing Director of both SAT Austria and Primobius created a direct conflict of interest, which compromised the governance of the joint venture.

183    Mr Cole gave evidence to the effect that Mr Reiche gave a presentation to the board at the meeting on 20 February 2024 in which he raised a perceived conflict of interest on the part of Dr Siemon and Mr Krenn, lack of accountability and transparency of operations and information sharing, concerns that SMS assumed and was assuming a more dominant role in Primobius than was warranted, his belief that SMS was attempting to make a big cash call, that the commercial arrangement on two contracts (Mercedes-Benz and Muenzer) was offensive and unfair, and that Mr Krenn was attempting to exert personal influence over others. Mr Cole also gave evidence to the effect that Mr Reiche gave a presentation to the board on 13 March 2024 at which he again conveyed his concern to the effect that SMS, not Neometals, was largely driving the systems and processes that were set up as part of Primobius.

184    All of the Neometals directors were cross-examined about their recollections of the meetings. While the extent of their recollections varied, Mr Cole, Mr Guthrie, Mr Ritchie and Mr Reed all generally accepted that Mr Reiche raised the matters referred to in the presentations and the issues and strategic risks Mr Reiche said in his evidence he raised at board meetings in February and (or) March 2024. Dr Purdie was not able to recall the substance of what Mr Reiche had said.

185    I accept Mr Reiche’s unchallenged evidence on the subject matter and substance of the concerns he conveyed to the members of the board present at the meetings in February and March 2024. I conclude that Mr Reiche gave a presentation at the meeting in February during which he conveyed the substance of what is written in the presentation document and the matters to which he and Mr Cole referred in their evidence. I also conclude that Mr Reiche conveyed the substance of the matters to which he referred in his evidence of the presentation he gave on 13 March 2024.

186    Regarding the board meeting on 20 February 2024, Mr Reiche also gave evidence to the effect that during the meeting he had a conversation with Mr Reed. Mr Reed asked Mr Reiche if he thought that Mr Krenn was trying to ‘bring Neometals down’. Mr Reiche responded suggesting he believed so from a conversation he had with Mr Krenn during which Mr Krenn said that he had suggested to SMS’s leadership to make a large cash call knowing that Neometals would likely be unable to meet the financial requirements and, thereby, Neometals’ interest in Primobius would be diluted. That evidence was unchallenged and Mr Reed accepted during his cross-examination that Mr Reiche raised the issue of a cash call with him. Mr Guthrie also accepted that Mr Reiche raised the matter during the meeting. I also accept Mr Reiche’s evidence on this matter.

187    Further, while the minutes of the meeting of the Neometals board for 21 February 2024 do not record that Mr Reiche gave a presentation at that meeting, they contain the following note that is consistent with the recommendations in the written presentation concerning the establishment of Primobius policies:

Lithium Battery Recycling

SC & CR - to address the outstanding governance issues with the Primobius Advisory Board. It was noted that it’s likely that a further Primobius strategy meeting may desirably need to be scheduled following the advisory board meeting. CGR addressed the draft policies that had been tabled with the Primobius Advisory Board. Although these warranted proper consideration at Primobius management level, the Board accepted the desirability of the principles which underpinned these draft policies for Primobius. It was noted that the upcoming Primobius advisory board meeting could be challenging in asserting NMT’s standing relative to SMS’s and that SC and CR would report back thereafter.

I infer the reference to ‘SC’ and ‘CR’ are references to Mr Cole and Mr Reed and the reference to ‘CGR’ is a reference to Mr Reiche. I accept the minutes of the meeting accurately record what action the board determined should be taken regarding ‘governance issues’ relating to Primobius.

Reverse engineering

188    Part of the design of the MURG plant included a solvent extraction circuit comprised of five separate circuits in sequence. These circuits were designed to remove certain minerals from a liquor solution known as a pregnant liquor solution (PLS). The organic phase composition of each circuit was different. After the PLS passed through each circuit the remaining PLS would contain some organic material from the previous circuit as ‘carry-over’. It was essential to the design to avoid cross-contamination of the organic material between circuits. During a design review in 2022/2023 DMF were recommended as part of the design to remove the organic carry-over between circuits.

189    On 26 May 2023 Thomas Heinzle, of Neometals, sent an email to Benedikt Nowak, of SMS, copied to Mr Farghaly, of Neometals, and others with the subject line ‘Example of a small co-matrix filter (similar to dual media filter, but includes a second column with coalescing media)’. Attached to that email was a photograph of filters and SpinTek general arrangement drawings for Comatrix CM-885 and Comatrix CM-910 filters. Certain of the information in the drawing had been redacted by ‘blacking out’ that information.

190    On 12 June 2023 Mr Heinzle sent an email to Anna Magdalena, of SMS, copied to Mr Farghaly and others. The email included an equipment data sheet for a SpinTek SX-900 filter and attached a SpinTek document that explained the backwash sequence for that filter. The email said that the information was for a ‘co-matrix filter, but the dual media filter backwash sequence would be similar’.

191    On 27 July 2023 Janet Lee-Taylor, of Neometals, received an email from Donna Aubrey, of SpinTek, to which was attached a proposal for the supply of six multi-media filters. On the same day, Ms Lee-Taylor sent an email to Ellen Busta, of SMS, forwarding a copy of the email and proposal from SpinTek. That email was also copied to Mr Farghaly.

192    The total cost of the SpinTek proposal was USD 1,700,000 and was valid for 60 days. The proposal was expressed to be confidential and not to be disclosed to a third party without the consent of SpinTek. The proposal included technical specifications for the filters that included dimensions and the media. Amongst other things, the proposal indicated that general arrangement drawings ‘will be supplied’. The proposal included a drawing. The copy that was tendered in evidence is illegible and the nature of the drawing cannot be identified from that copy.

193    On 22 August 2023 Mr Farghaly forwarded Mr Heinzle’s email of 26 May 2023 to Mr Krenn.

194    On 5 September 2023 Mr Farghaly forwarded Mr Heinzle’s emails of 26 May 2023 and 13 June 2023 and the attachment to Ms Lee-Taylor’s email of 27 July 2023 to the email address ‘wagner@dsb.at’. On 5 September 2023 Mr Farghaly also sent to that email address various SMS drawings with the subject line ‘Murg P&IDs’. I infer from the email address and a Dunn and Bradstreet search of DSB that the recipient of that email was Walter Wagner, the key principal of DSB.

195    On 1 November 2023 Mr Farghaly resigned. Before his resignation he had been employed by Neometals as the technical manager for Europe. He had been based in Austria and had worked out of SAT Austria’s office led by Mr Krenn. Mr Farghaly worked until 1 December 2023.

196    Mr Reiche gave unchallenged evidence that he had a conversation with Mr Farghaly around 4 November 2023 during which words to the following effect were said:

Prior to [Farghaly's] departure, I had a conversation with [Farghaly] on or around 4 November 2023, where we used words to the following effect:

[Farghaly’s]: "Christian, Horst has been pressuring me to assist him in reverse engineering the Spintek DMF filters."

Me: “Oh."

[Farghaly’s]: "It is wrong. It is not Neometals' Intellectual Property, but I was being pressured to do it. I have sent Horst's colleague Walter Wagner from DSB emails providing technical data and instructions on how to reverse engineer the filters I felt like I had no other choice but to do it."

That evidence of Mr Reiche was not received as to the truth of the hearsay statement, but as to the fact of the conversation and as to Mr Reiche’s state of mind.

197    On 3 January 2024 Anna Mauerhofer, of SMS, sent an email to Guillaume Bayard, of Neometals. The email forwarded Ms Lee-Taylor’s email of 27 July 2023 and attached SpinTek proposal. Ms Mauerhofer said: ‘Please comment on it and contact Spintek to receive and updated offer.’

198    On 24 January 2024 Ms Mauerhofer brought the high cost of the SpinTek filters to the attention of Irena Ivanova, of Neometals.

199    On 26 January 2024 Mr Bayard forwarded Ms Mauerhofer’s email of 3 January 2024 to Ms Ivanova.

200    On 2 February 2024 Ms Ivanova sent an email to Ms Mauerhofer indicating that after reviewing the DMF with other Neometals employees, the DMF could be removed from the process and replaced with carbon columns. Ms Ivanova said that the SpinTek price did not make much sense and she added ‘As an alternative would SMS consider manufacturing these?’. Ms Mauerhofer responded with an email on 5 February 2024 by which she questioned the decision to remove the DMF. Mr Krenn also responded with an email on 5 February 2024 by which he disputed certain factual and other assertions that Ms Ivanova had made in her email and he said, amongst other things, ‘Spintek is not an option for SMS to use’. Ms Ivanova sent a response to their emails on the same day which included the question and statement: ‘Are SMS able to manufacture the DMF? This may be a better solution.’ Mr Krenn replied that day again disputing certain of the assertions Ms Ivanova had made in her email and said: ‘we agreed to minimize [the] commercial problem in a way that we do the DMF as SMS on the design criteria of Spintek and PDC’. I infer that reference and other references to ‘PDC’ in the evidence that ‘PDC’ is an acronym for ‘Process Design Criteria’.

201    On 20 February 2024 Ms Ivanova sent an email to Ms Mauerhofer that proposed replacing the DMF with carbon columns and bag filters. Attached to the email was a Primobius document entitled ‘Project Note NMT Comment on DMF’ dated 20 February 2024. Mr Krenn sent Ms Ivanova a reply that day disputing aspects of the assertions in the project note and posing the question ‘Is this a formal change request yes/no?’. On 20 February 2024 Ms Ivanova forwarded Mr Krenn’s email and part of the exchanges of emails leading up to it to Mr Reed. On 21 February 2024 she also forwarded those emails to Mr Reiche. On 23 February 2024 Ms Ivanova forwarded the balance of her email exchanges with Ms Mauerhofer and Mr Krenn to Mr Reiche.

202    On 14 March 2024 Ms Ivanova sent an email to Mr Reiche, copied to Mr Krenn and Dr Siemon, by which she sought approval of a proposal to use DMF. The email said that two offers were available for DMF, but that SAT Austria would not proceed with the SpinTek offer, but rather, they would proceed with an offer from DSB. Mr Reiche responded by an email on 18 March 2024 by which he indicated that he was not able to approve the proposal in its current form as it lacked essential technical data. Attached was a revised version of the project note of 20 February 2024 which Mr Reiche said ‘finalizes our previous discussion on filters’. The revised project note, although dated 20 February 2024, is in a substantially different form to the earlier document of that date. The revised project note includes a statement that there had been an agreement to abandon the previously recommended idea of carbon columns. The revised project note records that Neometals obtained a quote for DMF from another manufacturer that was in the same range as the SpinTek proposal. Further, that Neometals had identified a Chinese manufacturer that had provided a quotation at a significantly lower cost than SpinTek. Additionally, the revised project note records ‘SAT team also are looking into manufacturing of the DM filters by DSB’.

203    On 18 March 2024 Mr Krenn replied to Mr Reiche. He indicated that there had been a history of Neometals proposing equipment manufactured in China resulting in non-performance and non-compliance with European norms. He added: ‘We will clarify internally as SMS if we consider that for reputation reason as an option for this project or not. We will provide you with the feedback in the next days. Happy when NMT discuss internally to take over the risk or order and we can do a take out from our end.’

204    On 22 March 2024 Ms Ivanova sent an email to Mr Reiche by which she forwarded to him the emails that Mr Farghaly had sent to Mr Krenn on 22 August 2023 and to Mr Wagner on 5 September 2023 relating to the SpinTek filters.

205    On 25 March 2024 Ms Mauerhofer sent Mr Reiche a revision of the approval sheet for the DMF. Amongst other things, in the email she said: ‘In general, the approval sheets should be used to verify the results of the PDC with the proposed design of the DMF equipment. They are not meant to be used as a basis for selection of suppliers.’

206    On 2 April 2024 Mr Reiche replied to Ms Mauerhofer with an email containing the following statement:

…

We are not in a position to verify the Design for the process equipment, procurement, and manufacture, as this responsibility lies with you and your team.

Our technical approval only verifies that the PDC and Mass Balance data can be used for the equipment design.

…

207    Mr Reiche gave no evidence or explanation of what he meant by the expression ‘reverse engineering’. However, he also gave unchallenged evidence as follows:

Due to the conversation with [Farghaly] on or about 4 November 2023, and the content of his resignation email, I became concerned that Primobius via SMS was unlawfully reverse engineering Spintek's DMF Filters, therefore improperly appropriating Spintek's Intellectual Property, leaving Primobius (and [Neometals]) at risk of legal action and repercussions with our client Mercedes-Benz if they become aware of the conduct. I also considered it to be misconduct and the very least an improper state of affairs in relation to [Neometals].

208    Mr Reiche gave further unchallenged evidence as follows:

On or about 22 March 2024, I received an email from Ivanova, enclosing documentation which confirmed that DSB, in collaboration with Krenn, was reverse-engineering Spintek's proprietary DMF filters. The email exchange between [Farghaly] and Walter Wagner (Wagner) of DSB revealed that [Farghaly] had shared Spintek's proprietary information with Wagner, providing guidance on how to reverse-engineer the technology. This confirmed that DSB did not have their own filter design and were using Spintek's proprietary design to back-engineer equipment for Primobius. This confirmed the significant concerns that I entertained about the potential infringement of Spintek's intellectual property including the associated legal risks for Primobius. …

209    The manner in which the documentation Mr Reiche received from Ms Ivanova ‘confirmed’ that DSB was in collaboration with Mr Krenn and was reverse engineering SpinTek’s proprietary DMF was not explained by Mr Reiche in his evidence. It is no more than assertion. Further, again, there was no evidence of what Mr Reiche considered amounted to ‘reverse engineering’ or the manner in which it was unlawful or illegal under German or any other relevant and applicable law or involved infringement of intellectual property rights.

210    There was no evidence of any comparison between the final design of DMF that were supplied against the SpinTek design of its filters included in its July proposal. Nor was there a comparison between that design and the SpinTek drawing of its co-matrix filters. Moreover, there was no evidence of the extent to which, if at all, the design of co-matrix filters could or would assist in the design of DMF for the MURG project.

211    Nonetheless, the evidence reveals that Mr Farghaly, a former employee of Neometals, was, at least, potentially involved in disclosing information of a confidential and commercially sensitive nature in breach of a duty owed to SpinTek to maintain the confidentiality of that information. Mr Reiche also had reasonable grounds to suspect that Mr Farghaly had sent the emails to Mr Wagner under the instruction or with the encouragement of Mr Krenn. Mr Reiche had reasonable grounds to suspect that the conduct of Mr Farghaly and Mr Krenn related to Primobius and the MURG project. That is, in effect, the conduct of each of Mr Krenn and Mr Farghaly was undertaken as agents for Primobius.

212    Mr Reiche and Mr Reed both gave evidence to the effect that they had a conversation in April 2024 during which Mr Reiche raised with Mr Reed his concern that SMS had procured DMF that had been reverse engineered. The evidence of Mr Reiche and Mr Reed was largely consistent except regarding Mr Reed’s response. Both gave evidence to the effect that Mr Reiche explained that Mr Krenn or SMS were not happy with the costs of the SpinTek DMF. Mr Reiche had suggested the procurement of less expensive DMF manufactured in China, but that option was rejected by Mr Krenn and he insisted on using DMF manufactured by DSB. Mr Reiche gave evidence that he said to Mr Reed words to the following effect: ‘I am still very concerned that DSB has reverse engineered the filter using Spintek’s intellectual property. I am very concerned about Primobius [supplying] the DSB reverse engineered filters to Mercedes and that Neometals has knowledge of the reverse engineering.’

213    Mr Reed gave evidence that Mr Reiche said words to the effect that: ‘SMS would not use the Chinese vendor and had instead procured another supplier to supply a filter that he believed had been reverse engineered … he did not want to go ahead with the filter proposal presented by SMS’.

214    While the evidence is largely consistent the difference is significant in that Mr Reiche’s evidence is that he mentioned reverse engineering using SpinTek’s intellectual property whereas Mr Reed’s evidence is that Mr Reiche mentioned only reverse engineering. During his cross-examination it was put to Mr Reed that Mr Reiche told him that ‘Mr Krenn had procured another supplier to provide the DMF filters that had been reversed-engineered from the SpinTek filter.’ Mr Reed responded somewhat equivocally, but positively: ‘That was his assertion.’ It was not put to Mr Reed that Mr Reiche raised the use of SpinTek intellectual property.

215    As already mentioned, there was no evidence from Mr Reiche about what he understood the term ‘reverse engineering’ to mean. There was no evidence that the term has a notorious meaning. Mr Reed gave evidence about what he understood the term to mean during his cross-examination, but as I have already mentioned, I did not find that evidence convincing and it appeared to be reconstruction based on Mr Reed’s current understanding rather than what he understood at the time of his discussion with Mr Reiche. Nonetheless, whether Mr Reiche specifically mentioned a concern about a potential infringement of intellectual property, the use of the expression ‘reverse engineering’ in conjunction with SpinTek’s DMF was sufficient to raise the potential for misuse of intellectual property rights. As also already mentioned, Mr Reed downplayed the significance of Mr Reiche’s reverse engineering allegation, but I consider that he understood from what Mr Reiche had said to him in April 2024 that Mr Reiche believed, or at least was very concerned, that the DMF had been reverse engineered and that could involve a breach of intellectual property rights. That is also consistent with Mr Reed’s evidence about what said he said to Mr Reiche in response to the allegations.

216    Mr Reiche and Mr Reed gave quite different evidence of what Mr Reed said to Mr Reiche in response. Mr Reiche gave evidence-in-chief to the effect that Mr Reed said: ‘Save the information but do nothing’. He was not challenged on that evidence during his cross-examination and Mr Reed’s version of events was not put to Mr Reiche during his cross-examination. However, Mr Reiche prepared a second affidavit that was tendered as part of his evidence-in-chief after he had received and evidently read the affidavits upon which Neometals intended to rely. In that affidavit he said nothing more concerning Mr Reed’s response. Therefore, I consider that the substance of the rule in Browne v Dunn (1894) 6 R 67 has been met.

217    Mr Reed gave evidence-in-chief (in his affidavit tendered in evidence) to the following effect:

19.    In response, I said to Mr Reiche words to the effect that:

(a)    the claim he was making was a big assertion;

(b)    Neometals was not in charge of equipment selection generally because the engineering, procurement and construction contract was between Primobius and SMS and Neometals does not instruct SMS what equipment vendor to use; and

(c)    nevertheless, if he thought that there had been reverse engineering and intellectual property rights had been breached, he should go and gather some evidence.

20.    During this conversation, I did not downplay Mr Reiche's concerns or tell him to forget about the issue or not to go further with the issue. Instead, I reminded Mr Reiche of our involvement regarding equipment selection, but encouraged him to gather further evidence to build a case if there was one to be built.

218    Mr Reed was cross-examined at length on his response to Mr Reiche’s information. He was unmoved. He maintained that he requested Mr Reiche to provide him with proof of the ‘reverse engineering’.

219    The evidence does not permit any finding to be made about what, if any, information Mr Reiche provided Mr Reed to support his stated concern. There was no evidence that Mr Reiche informed Mr Reed about his conversation with Mr Farghaly. There was no evidence that Mr Reiche informed Mr Reed about the emails Mr Farghaly had sent to Mr Krenn and Mr Wagner. There was no evidence that any of those documents were provided to Mr Reed.

220    On balance, I prefer the evidence of Mr Reed to that of Mr Reiche on this subject. Mr Reed’s evidence is more consistent with the evidence of the prevailing circumstances and the inherent probabilities.

221    Mr Reiche’s reverse engineering allegation was made in a context in which there were remaining tensions between the managing directors of Primobius which had resurfaced at an advisory board meeting in February 2024. Mr Reiche was also regularly complaining to Mr Reed about Mr Krenn and Dr Siemon. As already observed, there was little or no support in the email communications upon which Mr Reiche relied for his complaints and steps were being taken to attempt to improve the relationship between Mr Reiche and Mr Krenn and Dr Siemon. In that context, it stands to reason that Mr Reed would be cautious and circumspect about yet another allegation that Mr Reiche made about Mr Krenn which had the potential to cause significant further tension and deterioration of the relationship between the joint venture partners.

222    In the prevailing circumstances, it was accurate to describe Mr Reiche’s allegation as a ‘big assertion’. It is inherently probable that Mr Reed used words to that effect to describe the allegation. It was also accurate to indicate that SMS was responsible for procurement of equipment and, therefore, Neometals had no real ability to direct the selection of the DMF. Therefore, it is also inherently probable that Mr Reed mentioned that state of affairs which underscored that it was prudent to take a cautious approach to a big assertion.

223    In the prevailing circumstances, an allegation that Mr Krenn was involved in procuring DMF from a supplier which had breached SpinTek’s intellectual property rights was also not an allegation that would, or should, be made lightly and openly to SMS or to non-Neometals members of the management board or advisory board of Primobius. At the same time, it was an allegation which, if true, had the potential to affect the MURG project, the relationship with Mercedes-Benz and the value of Neometals’ interest in Primobius, and also cause Primobius and Neometals reputational harm. Notwithstanding the potential to increase tensions with the joint venture partner, it is inherently improbable that Mr Reed, a CEO of a publicly listed company involved in the invention and licensing of intellectual property, cognisant of the potential financial and reputational harm, would have counselled Mr Reiche against taking any action at all. Therefore, it is inherently probable that Mr Reed would have counselled Mr Reiche to obtain evidence of an infringement of intellectual property rights before making a decision about what should be done with that information. It is also inherently probable that Mr Reed, as Mr Reiche’s line manager, would have placed the onus on Mr Reiche to produce evidence or information that provided a reasonable foundation for making such an allegation before a decision was made upon what action could or should be taken.

224    While it is not necessary to make any findings about the extent to which Mr Reiche had reasonable grounds to suspect that Mr Krenn, Mr Farghaly or any other person was involved in the infringement of SpinTek’s intellectual property rights, for the reasons already given, Mr Reiche’s evidence in support of his reverse engineering allegation was no more than assertion. As explained later in these reasons, Mr Reiche made a formal whistleblower disclosure by a letter handed to Mr Smith on 9 July 2024. That letter is detailed and catalogues a litany of alleged failings on the part of Neometals to follow up or investigate earlier alleged disclosures Mr Reiche had made. There is no mention in that otherwise comprehensive letter of reverse engineering. I infer that, as of 9 July 2024, Mr Reiche did not consider that he had reasonable grounds to suspect that there had been any likely infringement of SpinTek’s intellectual property rights and he, himself, had not considered the matter worth pursuing following his discussion with Mr Reed in April 2024.

Purchase order simulated signature

225    In March 2024 Mr Reiche was copied on a series of emails that passed between Ms Ivanova and Giuliano Giordani, of Neometals. Ms Ivanova was seeking to identify money paid to SAT Austria from a purchase order issued to Primobius by Mercedes-Benz referred to as PO#3 in the sum of EUR1,285,000.

226    As a consequence of receiving those emails, Mr Reiche and Ms Ivanova interrogated the Primobius server and found an exchange of emails between Manuel Michel, of Mercedes-Benz, and Mr Krenn. These emails were evidently in German and were not tendered into evidence. Mr Reiche gave evidence, without objection, as to the contents of the emails. Mr Reiche’s evidence, which I accept, was that on 24 April 2023 Mr Michel sent an email to Mr Krenn with an acceptance document for a purchase order. On 11 May 2023 Mr Krenn replied attaching the acceptance document.

227    The acceptance document is in evidence and has two dates: 18 April 2023; and 11 May 2023. On the face of the document, it appears to have been signed by Mr Krenn and Ms Gray, but the names and dates written on the document all appear to be in the same handwriting. On reviewing the signatures on the acceptance document Mr Reiche formed the view that the signatures on the document of both Mr Krenn and Ms Gray were in the same handwriting style. As a consequence of reviewing Ms Gray’s electronic calendar, Mr Reiche believed that Ms Gray was in Perth on 18 April 2023 and in Dusseldorf, Germany, on 11 May 2023.

228    Mr Reiche obtained samples of documents which were believed to contain genuine examples of Ms Gray’s signature. After reviewing these and comparing them against the acceptance document, Mr Reiche and Ms Ivanova decided to engage a handwriting expert to examine the signature of Ms Gray on the acceptance document and signatures of Ms Gray thought to be genuine on other documents. The acceptance document, amongst other documents, was attached to an email from Ms Ivanova to Mr Reiche dated 2 April 2024. The electronic file name for that document was ‘230418_Bestellannahme_Engineering backend_signed.pdf’.

229    Mr Reiche received a report of Neha Phatak Rakshas of Inside Ink Graphology Solutions. In that report Ms Rakshas expresses an opinion, in effect, that the name of Ms Gray on the acceptance document was not signed by Ms Gray. No opinion is expressed as to whether or not the handwriting is the same as that of the person who signed for Mr Krenn on the document.

230    Mr Reiche gave evidence to the effect that on 10 April 2024 he reported what he described in his evidence as ‘the forgery’ to Mr Cole. As ‘forgery’ is a legal term of art and describes a criminal offence involving falsification of a document with intent to defraud, I accept Mr Reiche’s evidence that he used those words to describe Ms Gray’s signature on the acceptance document, but I take the allegation of ‘forgery’ to be an allegation of simulation of Ms Gray’s signature on the document without her authority, rather than allegation of commission of a criminal offence that has other elements including intent to defraud. Mr Reiche said he provided Mr Cole with the report of Ms Rakshas and other relevant documents. He said Mr Cole seemed agitated, cut him off and told him to ‘bury it’. Mr Reiche gave evidence to the effect that after Mr Cole’s response he ‘escalated’ his concerns to Mr Reed, and provided Mr Reed with Ms Rakshas’ report and other documents. He said that Mr Reed responded by sending him an email on 11 April 2024 forwarding a copy of an email from Ms Gray to Mr Reed dated 11 May 2023.

231    Mr Cole gave evidence that he became aware of the ‘forgery’ allegation from a conversation he had with Ms Di Virgilio on 4 April 2024. After that meeting, Mr Cole met with Mr Reiche. He said that the conversation addressed a range of matters relating to managing his relationships with Mr Krenn and Dr Siemon and he then initiated a discussion about the forgery allegation.

232    Mr Cole gave unchallenged evidence that during that meeting Mr Reiche said to him words to the following effect:

(a)    Dr Siemon and Mr Krenn had 'let him down' during the meeting of the advisory board on 27 February 2024 by including some late changes to reports they tabled which caused him to disagree with them;

(b)    Mr Krenn had a 'guarded approach ' on behalf of SMS concerning the sharing of data which Mr Reiche considered presented challenges for Neometals;

(c)    Dr Siemon was too strongly aligned with SMS and did not give sufficient support to Mr Reiche's needs; and

(d)    Mr Reiche had questions concerning the ethics of SMS and whether Neometals was being fairly dealt with.

Mr Cole responded with words to the effect that Mr Reiche should guard against these perceptions unduly colouring his own approach to his work, particularly considering the importance of demonstrating respect in joint venture arrangements. He then said words to the effect that conspiracy theory thoughts can be intrusive and distracting and may not have legitimacy.

233    Mr Cole said to Mr Reiche that he understood that Mr Reiche had suspicions as to the veracity of a signature purportedly of Ms Gray on a contract document and that Mr Reiche was seeking expert analysis of it. Mr Reiche said he thought Mr Krenn may have been the person who signed in Ms Gray’s name. Mr Cole gave evidence that he then said words to the effect:

I assume that the contract document was authorised by Ms Gray especially as it is being executed and is accepted by all parties (including Neometals) as being of valuable interest and of full force and effect irrespective of any perceived irregularity in its formal execution. Accordingly, it is probably not worth the candle to actively pursue the matter, being a matter of procedural relevance rather than one of substance.

234    Mr Cole said he advised Mr Reiche that Mr Cole would speak with Mr Reed to check if the contract document had been authorised by Ms Gray and confirmed with Mr Reiche that the matter could be left with Mr Cole and Mr Reed to ‘sort out’. Mr Cole sent an email to Ms Di Virgilio that was copied to Mr Reed on 4 April 2024.

235    Ms Di Virgilio gave evidence to the effect that around 3 April 2024 Mr Reiche had asked her to send him an example of Ms Gray’s handwriting. Ms Di Virgilio asked for the reason Mr Reiche wanted it and Mr Reiche responded with words to the effect that he thought Mr Krenn had forged Ms Gray’s signature on a purchase order and he was going to send the example of handwriting to a handwriting expert. Ms Di Virgilio said that she expressed the view to Mr Reiche that a handwriting expert was a waste of money and Mr Reiche should contact Ms Gray directly and that her contact details were available to him.

236    Mr Cole’s email of 4 April 2024 was tendered without objection to the previous representations of Mr Cole contained in that email. It is consistent with Mr Cole’s evidence that he had a meeting with Mr Reiche on 4 April 2024 and discussed various matters relating to managing Mr Reiche’s relationship with Mr Krenn and Dr Siemon, but it makes no mention of any discussion with Mr Reiche concerning the allegations about simulation of Ms Gray’s signature. Mr Cole explained the absence of any direct reference was because the email was intended to be included on Mr Reiche’s human resources file. Mr Cole gave evidence that he spoke with Mr Reed later that day and Mr Reed said he would follow it up with Ms Gray. A week or so later Mr Reed informed Mr Cole that he had located an email by which Ms Gray had approved the contract and Mr Reed had reported that back to Mr Reiche. Mr Cole denied telling Mr Reiche to ‘bury it’, but said Mr Reiche might have asked him if he wanted him to bury it to which he responded that he should leave it to Mr Reed and himself to sort out. Mr Cole said that he was in Wilyabrup, in the Margaret River region of Western Australia, harvesting olives on 10 April 2024. Mr Cole said that he was not provided with a copy of a handwriting report and understood from his discussion with Mr Reiche that, at that time, Mr Reiche’s belief as to the alleged forgery was akin to a suspicion only.

237    Mr Reed gave evidence to the effect that the day after his conversation with Mr Reiche about the allegations of reverse engineering, Mr Reiche said that he was going to be asked to approve a foreign currency payment for a handwriting expert. Mr Reed asked why he needed a handwriting expert and Mr Reiche responded with an allegation that Mr Krenn had forged Ms Gray’s signature. Mr Reed said that was a reasonably serious allegation and asked what document that was in relation to and for proof. Mr Reiche responded with words to the effect ‘The purchase order from Mercedes’.

238    Mr Reed gave evidence to the effect that he reviewed his email archive and found an email from Ms Gray to him sent on 11 May 2023. Attached to the email from Ms Gray is a photograph with the electronic file name ‘image.jpeg’. The photograph depicts a document in German with what appear to be Ms Gray’s and Mr Krenn’s signatures. Mr Reed forwarded that email to Mr Reiche on 11 April 2024 at 4.04pm and said: ‘It[’]s all in order. Merrill [Gray] authorised Horst [Krenn] to sign on her behalf.’

239    Mr Reiche gave evidence that Ms Gray’s email referenced purchase order number 2 (or PO#2) and not PO#3 because it is in the sum of EUR 950,000 and not EUR1,285,000. He also gave evidence to the effect that it made no sense to him that Ms Gray would have authorised Mr Krenn to sign on her behalf because he believed that she was in Germany on 11 May 2023 and if Mr Krenn had signed on her behalf he should have signed and written ‘i.A.’ Additionally, Mr Reiche made comments on the contents of Ms Gray’s email that are difficult to interpret, but which I take to be a submission that in Ms Gray’s email she mentioned that a further detailed engineering purchase order was pending and the photograph is of the acceptance document for that detailed purchase order, implying that the email predates the photograph and, therefore, the photograph could not have been attached to the email when it was sent. Mr Reiche expressed the opinion that these matters strongly suggest her signature of the acceptance document was forged.

240    The foundations for Mr Reiche’s evident continuing belief that Ms Gray’s ‘signature’ or name on the acceptance document was written on the document without her authority is difficult to understand. Whether the acceptance document relates to PO#3 or PO#2 is not to the point. The relevant question is whether there were reasonable grounds for believing that Ms Gray’s signature on the acceptance document was simulated without her authority. In my view, after Mr Reiche received Mr Reed’s email of 11 April 2024 forwarding Ms Gray’s email of 11 May 2023, he no longer had reasonable grounds to suspect that Ms Gray’s signature was written on the acceptance document in question without her authority.

241    The email from Ms Gray to Mr Reed of 11 May 2023 refers in the subject line to ‘Mercedes Backend PO for Euro 950,000 received by Primobius’. In the text of her email Ms Gray said: ‘as you know a EURO 950,000 PO for Hub/Back end Engineering has now been received by Primobius from Licular – see attached’. Therefore, the email of Ms Gray appears to self-evidently refer to a purchase order for EUR950,000 (PO#2) and not EUR1,285,000 (PO#3). However, while Mr Reiche’s original enquiry may have related to whether money was received for PO#3 and, if so, how it was allocated or spent, the relevant question concerning his forgery allegation was whether Ms Gray’s signature on the acceptance document (whichever purchase order it related to) was written on that document by Ms Gray and, if not, whether it was written on that document by another person without her authority.

242    The document attached to Ms Gray’s email is a photograph of the acceptance document. That is, the attachment is a photograph of the same document with the electronic filename ‘230418_Bestellannahme_Engineering backend_signed.pdf’. In other words, the document upon which Mr Reiche evidently believes Ms Gray’s signature was simulated is the same document as that which was attached to Ms Gray’s email to Mr Reed of 11 May 2023.

243    The acceptance document is in German and no translation of that document was tendered in evidence. Therefore, I am not able to make a finding as to whether the acceptance document directly refers to a purchase order for EUR950,000 (PO#2) or for EUR1,285,000 (PO#3). The acceptance document does not contain any evident references to amounts. However, it refers, in English, to ‘Engineering Backend’. That is an indication that the attachment to Ms Gray’s email relates to the ‘EURO 950,000 PO for Hub/Back end Engineering’ referred to in the text of the email.

244    During his cross-examination Mr Reiche asserted that he had checked the metadata for the photograph attached to Ms Gray’s email and it indicated that the photograph was taken after the complaint. What he meant by that was not completely clear, but he went on to say in cross-examination that he suspected that Mr Reed ‘tried to cover it up’. He said: ‘The question is concealing the truth is for me an act of wrongdoing, an even a greater act of wrongdoing is not to speak up or to cover it up.’ I take that to have been an assertion that the photograph attached to the email that Mr Reed forwarded to Mr Reiche was taken after Mr Reiche had informed Mr Reed of his allegation of forgery. The assertion about metadata was not in Mr Reiche’s evidence-in-chief and was not supported with any direct evidence about the metadata of the photograph. This is an example of Mr Reiche’s propensity to give evidence that he thought supported his case. The assertion of a ‘cover up’ was unfounded and unsupported by any admissible evidence. Mr Reiche’s assertion of a ‘cover up’ undermines the credibility of his evidence on the subject of the alleged forgery.

245    Having regard to the contents of Ms Gray’s email of 11 May 2023 the only reasonable inference that can be drawn from that document is that either she signed the acceptance document or, if not, her name was written on that document by another person with her authority given either before or after her name was written on the document. Therefore, there is no reason to doubt that the relevant corporate act of Primobius, acceptance of a purchase order, was undertaken with the authority and approval of both Mr Krenn and Ms Gray as members of the management board. At most, the circumstances in which Ms Gray’s name was written on the acceptance document illustrate or are indicative of poor governance practices at a time that pre-dated Mr Reiche’s appointment as a managing director of Primobius in that, assuming Ms Gray’s signature was simulated, it should have had a notation to that effect such as ‘pp’ or otherwise in the form required under German law to give the document appropriate effect as an act of the body corporate. Therefore, the relevant vice – unauthorised corporate action – was absent, rendering even colloquial use of the word ‘forgery’ inapposite.

246    It is evident from Mr Reed’s email to Mr Reiche on 11 April 2024 that Mr Reed inferred from the contents of the email he received from Ms Gray on 11 May 2024 that: (1) Mr Krenn had signed the acceptance document on behalf of Ms Gray; and (2) Mr Krenn had done so with Ms Gray’s authority. Mr Reed gave the following evidence about the contents of Ms Gray’s email to him.

27.     It was clear from Ms Gray's email that Ms Gray and Mr Krenn's signatures were signed by the same person, as they were in the same handwriting and Ms Gray's name beneath her signature had been spelt incorrectly. Therefore, I considered that it was unnecessary for Mr Reiche to have engaged a handwriting expert. Not only was it apparent from the photograph that Ms Gray had not personally signed it, Ms Gray had clearly seen the document and forwarded it through to me to confirm the purchase order had been signed. On that basis, I considered that she was accepting of her signature having been signed by Mr Krenn, and had authorised it.

28.    If the incident raised by Mr Reiche had been a forgery incident, I would have made the appropriate enquiries with Mr Cole and the Advisory Board to determine next steps. However, as Ms Gray had been aware of and authorised her signature being signed by Mr Krenn, there was no issue requiring further investigation.

29.    Mr Reiche did not indicate to me that this was a whistleblowing disclosure at the time he raised this issue with me.

30.    I did not consider he was acting as a whistleblower or that he made a whistleblower disclosure at the time.

247    I accept that evidence. It is consistent with inferences that can be drawn from the document and with the views Mr Reed expressed in his email to Mr Reiche of 11 April 2024. It is also consistent with my conclusion that, based on the contents of Ms Gray’s email to Mr Reed of 11 May 2023, there were not objectively reasonable grounds to suspect that Ms Gray’s signature on the acceptance document had been written on that document without her authority.

248    As to Mr Reiche’s and Mr Cole’s conflicting versions of their conversation concerning the alleged forgery, I prefer Mr Cole’s version of events. I conclude that Mr Cole did not tell Mr Reiche to ‘bury it’. Mr Cole did not understand Mr Reiche’s allegations to be anything more than a suspicion at that time of their conversation. Mr Cole expected that there was likely an innocent explanation. Mr Cole intended to follow the matter up with Mr Reed and told Mr Reiche that Mr Cole would sort it out with Mr Reed. Mr Cole later came to understand that Ms Gray had approved the relevant transaction and Mr Reiche had been informed of that fact. My reasons for reaching these conclusions are as follows.

249    Mr Cole was not challenged on his evidence that he was at Wilyabrup on 10 April 2024. Therefore, I do not accept Mr Reiche’s evidence that they spoke on 10 April 2024 or that Mr Reiche gave him a copy of the handwriting report. The handwriting report is dated 9 April 2024. Mr Reiche accepted during his cross-examination that his recollection of the date of his conversation with Mr Cole may have been before 9 April 2024.

250    Although Mr Cole’s email of 4 April 2024 to Ms Di Virgilio and Mr Reed does not make an explicit reference to the allegation of forgery there is reference to Mr Reiche having continuing questions concerning ‘the ethics of some on behalf of SMS’ and to Mr Cole saying to Mr Reiche that ‘conspiracy theory’ thoughts can be intrusive and distracting and may not have legitimacy and at the same time ‘if there is patent evidence’ then it should be reported through Mr Reed. Mr Cole gave unchallenged evidence that the reference to ethical dealings alluded to the forgery allegation.

251    Mr Reiche accepted during his cross-examination that he had spoken with Ms Di Virgilio about the alleged forgery and obtaining a handwriting report. While Ms Di Virgilio made no mention of discussing the forgery allegation with Mr Cole, it is inherently probable that Mr Cole spoke with Ms Di Virgilio before he met with Mr Reiche given the main subject matter of that meeting related to Mr Reiche’s dealings with the other managing directors of Primobius and, amongst other things, executive coaching. It is inherently probable that, in that context, Ms Di Virgilio would have mentioned the forgery allegation given that Mr Reiche was accusing Mr Krenn of forgery. It is also inherently probable that Mr Cole would have raised the topic when addressing, amongst other things, conspiracy theories, Mr Reiche’s relationship and communications with Mr Krenn and Dr Siemon.

252    It is inherently improbable that Mr Reiche would have first ‘reported’ the allegations to Mr Cole, as opposed to Mr Reed, and then ‘escalated’ the matter to Mr Reed. These descriptions are inconsistent with the actual reporting lines within Neometals. It is more probable that the matter came up in Mr Reiche’s meeting with Mr Cole before Mr Reiche had obtained the handwriting report and Mr Reiche subsequently ‘reported’ the matter to Mr Reed after he obtained the handwriting report.

253    As already mentioned, Mr Cole gave evidence in a forthright and matter-of-fact manner. He made appropriate concessions where necessary. He left me with the impression that he was a man of significant honesty and integrity and with no reason to doubt the truth of his evidence. Taking into account my assessment of his integrity, it is implausible that Mr Cole, the non-executive chair of a publicly listed company and a lawyer of many years standing, would, in the face of an allegation of forgery made by a company employee, instruct that employee to ‘bury it’. Further, in circumstances in which a purchase order would result in the performance of work for which Primobius would be paid, it was perfectly logical and rational for Mr Cole to assume that there was an innocent explanation and that, after inquiry with Mr Reed, it would be sorted out.

254    In Mr Reiche’s formal whistleblower document, the 9 July letter, he said Mr Cole ‘instructed him not to delve deeper into the matter, citing it as irrelevant’. While not completely consistent with Mr Cole’s account of their conversation, it is also not completely inconsistent with that account. It is a conclusion that could be drawn from Mr Cole telling Mr Reiche that Mr Cole assumed it was authorised and was probably a matter of procedural relevance rather than substance and that the matter could be left with Mr Cole and Mr Reed to sort out. Put another way, Mr Reiche’s first account of the effect of his conversation with Mr Cole is largely consistent with Mr Cole’s evidence of what was said during that conversation.

255    Additionally, Mr Cole gave evidence that the expression ‘bury it’ is not one that he would use. Based on the language Mr Cole used in his affidavit and during his cross-examination and his general comportment and demeanour, it is not a turn of phrase that I would readily accept that Mr Cole would use. During his cross-examination Mr Reiche affirmed his evidence-in-chief that Mr Cole had said ‘bury it’. He went on to embellish that evidence with the comment: ‘In the same time, meaning “Bury Australian investors’ money,” and this is not correct.’ That evidence was volunteered and was not responsive to the question he had been asked to the effect that he had engaged the handwriting expert after he had met with Mr Cole. Later, Mr Reiche said that Mr Cole said to him he ‘should just carry it under the rug and stop being conspiracy’. In my view, Mr Reiche’s evidence in this respect is another example of his tendency to give the evidence that he thought would assist his case. It may also reflect an imperfect comprehension of English and what Mr Cole conveyed to Mr Reiche when he counselled him that conspiracy theories can be intrusive and distracting and may not have legitimacy. That is to say, he may have formed the impression that Mr Cole was counselling him against pursuing the matter as a conspiracy theory.

256    It follows that I accept Mr Cole’s evidence of the substance of what he said to Mr Reiche. I do not accept that Mr Cole told him to ‘bury it’ or that that was the meaning conveyed by what Mr Cole said to Mr Reiche during the meeting.

257    Mr Reed made no mention of discussing the forgery allegation with Mr Cole. His evidence-in-chief creates the impression that his discussion with Mr Reiche about it was the first time Mr Reed became aware of the allegation. Nonetheless, it is inherently probable that Mr Cole and Mr Reed had a discussion about the forgery allegation after Mr Cole and Mr Reiche’s conversation on 4 April 2024. It is also inherently probable that Mr Reed informed Mr Cole of Mr Reed’s view that Ms Gray authorised the transaction the subject of the acceptance document.

Dr Purdie appointed COO

258    As already mentioned, Dr Purdie is a director of Neometals. Before May 2024 she was a non-executive director. After May 2024 she became an executive director and was employed in the role of COO.

259    In late April 2024 Mr Reed approached Dr Purdie and asked her if she would be interested in joining Neometals as COO. Amongst other qualifications, Dr Purdie has a PhD in Chemical Engineering. She also has about 37 years of experience in the mining, minerals processes and energy sectors. She has been employed in significant management positions by BHP, Rio Tinto and Alcoa. She was also the CEO of Adani Australia Renewables for about 2 years. A position description was prepared by Mr Reed and Ms Di Virgilio during May 2024.

260    On 29 May 2024 Dr Purdie was appointed COO on a part-time fixed-term basis. Her appointment was authorised by the board on 28 May 2024. In the role of COO Dr Purdie reported to Mr Reed, as CEO. Amongst other things, the position description included managing strategic partnerships and relationships. Also, her appointment changed the reporting lines for Mr Reiche as head of recycling. Mr Reiche reported to Dr Purdie, as COO, rather than directly to Mr Reed, as CEO.

Mr Kelsall appointed CFO

261    At the 28 May 2024 board meeting the board approved the appointment of Dr Purdie as COO, Mr Kelsall as CFO, and Mr Smith as legal general counsel of Neometals. Mr Kelsall was appointed to replace Mr Carone who was then the CFO.

Dr Purdie’s oversight of Mr Reiche

262    Mr Reiche gave evidence by which he expressed the view that Dr Purdie bullied and harassed him after she was appointed COO. He gave evidence of four examples described as: undermining technical communication; communication manipulation; exclusion from meetings and undermining his role as managing director of Primobius; and termination of a contractor without consultation. I do not accept that any of these examples fall within the natural and ordinary meaning of ‘bullied’ or ‘harassed’.

Asserted undermining of technical communication

263    Mr Reiche gave evidence, in the nature of conclusions, submission or commentary, concerning the effect of an exchange of emails between 12 and 24 June 2024 involving Dr Purdie, Mr Reiche and others. Mr Reiche said Dr Purdie’s email appeared dismissive and undermined his approach to transparency and communication, asserting her own views as superior without engaging with Mr Reiche’s input. He said her email exhibited a controlling tone, directing how teams’ routines should be structured and implying that her experience of best practices outweighed his. Dr Purdie gave evidence regarding the background to the email exchanges and her state of mind and reasons for the communications. None of this evidence was the subject of cross-examination, but I do not consider the conclusions, submissions and commentary of either Mr Reiche or Dr Purdie are of any real assistance. The email communications speak for themselves and there was no evidence placing them into a context that could result in a different construction of them.

264    In substance, in Dr Purdie’s email to Mr Reiche of 24 June 2024, she disagrees with Mr Reiche’s suggested approach to communicating information within the Primobius management team and to Mr Reed and Dr Purdie. Her email uses reasonable and respectful language and tone. To the extent that the email may be construed as providing direction or instruction, Dr Purdie was Mr Reiche’s line manager expressing to him in reasonable and respectful language her preferred approach to communications within the Primobius team. She was responsible for overseeing his performance of his role, including as a managing director of Primobius. Her position description included managing strategic partnerships and relationships. I do not accept Mr Reiche’s characterisations of these communications.

Asserted communication manipulation

265    Mr Reiche gave evidence concerning an exchange of emails between 18 June and 5 July 2024 involving Dr Purdie, Mr Reiche and Leonel Yew, a process engineer in the employ of Neometals.

266    On 18 June 2024 Mr Yew sent an email to Mr Reiche, Dr Purdie and others summarising his observations and what he had learned from visiting plants at Kuppenheim, Hilchenbach and Helsinki. On 19 June 2024 Mr Reiche sent an email in response, copied to all the original recipients, thanking Mr Yew for his summary.

267    Amongst other things, in Mr Yew’s email of 18 June 2024 he identified a potential issue with something called a ‘zigzag’ circuit at the Hilchenbach plant in its application to the MURG (Kuppenheim) plant. On 4 July 2024 Dr Purdie sent an email to Mr Yew, by way of reply to Mr Yew’s email of 18 June 2024 that was not copied to any of the original recipients. In that email she said:

…

I'm in Hilchenbach today and I wanted to understand some of the comments you made after your visit here last month. Could you explain the issue with air ingress to the zigzag circuit? It is probably a dumb question from me, but my understanding is that the air is piped into the circuit, from your email I am understanding that there is also a need for air to come in from the external environment, that it enters from the bottom at Hilchenbach and that this may not happen at Kuppenheim due to the design with block valves?

…

268    On 4 July 2024 Mr Yew replied. Amongst other things he said: ‘We have limited involvement. I don[’]t know if SMS already thought of this or if this is really an issue or it[’]s just me worrying too much. But the plan of our team is to let SMS continue to commission it, and we will support when the problem arise[s]. We don[’]t want to make too much noise now, or rather we have to deal very carefully with the relationship.’ On 4 July 2024 Dr Purdie replied to Mr Yew with the following:

…

Michel [Siemon] and I have had a lot of discussions on the need to build a transparent 'One Primobius Team' culture where it is 'safe to speak up' and 'perhaps ask a dumb question 'when there is something that doesn't make sense to you or doesn't seem right. I learn a lot by asking what might be dumb questions! Many times there will be an explanation and nothing to worry about but sometimes there is an issue which gets solved faster and a bigger problem might be avoided. When I see your note, I realise we still have work to do to get the best Primobius culture that gives us the best chance of success with the challenges ahead.

Would you be ok to help me and Michel by connecting with the right person in the extended Primobius team to ask this question? Is it OK if I ask Michel to connect you with the right person for you to discuss how this part of the circuit works at Kuppenheim? At the very least it is a chance for you to meet someone in the extended team and build a relationship, and one or both of you might learn something.

…

269    On 5 July 2024 Mr Yew forwarded his emails with Dr Purdie to Mr Reiche and said: ‘Jenny [Purdie] is communicating with Michel [Siemon] and offered to connect me with some right person in Primobius to discuss this matter. I think it[’]s best to discuss with you first.’

270    Regarding the last email, Mr Reiche gave evidence, in the form of conclusions, submission or commentary, to the effect that he learned on 5 July 2024 that Dr Purdie had ‘manipulated the communication flow [Mr Yew’s email and Mr Reiche’s reply of 19 June 2024] by erasing [Mr Reiche’s response] from the email thread that Yew emailed [him]’. Mr Reiche also said, in effect, that Dr Purdie had excluded the other addressees of Mr Yew’s email. He said that despite Mr Yew’s advice to include Mr Reiche in the communications, Dr Purdie ignored that advice and excluded Mr Reiche from further communications regarding the matter. Dr Purdie also gave evidence that, except to confirm that her email of 4 July 2024 was sent when she was in Hilchenbach visiting the facility, is also largely commentary on the contents of the email communications and statements of her subjective reasons for sending the emails. I do not regard the evidence of either witness regarding the contents and effect of the emails of any assistance. The email communications speak for themselves.

271    Regarding the content of the emails, I do not accept Mr Reiche’s characterisation of the communications between Mr Yew and Dr Purdie. It is self-evident that the purpose of Dr Purdie’s initial email to Mr Yew was for her to obtain information that would permit her to better understand Mr Yew’s comments about the Hilchenbach plant because she was visiting the plant herself. Mr Yew’s response included that he was taking a position of not asking questions about the SMS engineering. That position was not consistent with Dr Purdie’s view of the manner in which the Primobius team should function and that prompted her to express that view to Mr Yew. Dr Purdie’s emails were manifestly not a ‘manipulation’ of Mr Yew’s email and Mr Reiche’s reply of 19 June 2024. It was a separate communication for a separate purpose. Her advice about building a one team culture and asking if she could communication with Dr Siemon about the matter were matters that fell within her role as COO.

Asserted exclusion from meetings

272    Mr Reiche gave unchallenged evidence to the effect that Dr Purdie undertook a business trip to Germany in June 2024 during which she held meetings with Dr Siemon, Mr Krenn and members of the Primobius team. Mr Reiche was not invited to participate in those meetings or informed of her trip beforehand even though he had been in Germany during June 2024 and could have extended his trip to participate in her meetings if he had known that she would be travelling to Germany for meetings at that time. Mr Reiche was not cross-examined about this evidence.

273    Dr Purdie gave evidence that around the end of June 2024 she planned a business trip to Germany to visit the Primobius team and build a relationship with Dr Siemon, in particular, at the request of Mr Cole and Mr Reed. She was initially going to attend at the same time as Mr Reiche, but she was asked at short notice and it clashed with other commitments. As she was travelling to Europe for a holiday a couple of weeks later, it was agreed that she could combine the two trips. She said that it did not occur to her that Mr Reiche would have expected to be invited to participate in her trip to Germany. She said that she would not have invited him in any event as the purpose of her trip was for her to build relationships with people who she suspected did not get on well with Mr Reiche and she was also expecting to receive Dr Siemon’s perspective on Mr Reiche’s performance. Dr Purdie was not really challenged about her reasons for meeting with Dr Siemon and Mr Krenn without Mr Reiche.

274    Mr Reiche gave evidence in the form of conclusions, submission or commentary to the effect that exclusion from the meetings prevented him from being involved in critical discussions and obstructed his ability to fulfil his fiduciary responsibilities as a managing director of Primobius. I do not accept Mr Reiche’s characterisation of Dr Purdie’s conduct as ‘excluding’ him from meetings, in effect, that he should have attended as a managing director of Primobius. Her role included managing strategic partnerships and relationships. Dr Purdie’s meetings with Dr Siemon and Mr Krenn fell within the description of her role. Dr Purdie was also Mr Reiche’s line manager and was entitled to gain the perspective of, in particular, Dr Siemon regarding Mr Reiche’s performance. Dr Purdie could have involved, but chose not to involve, Mr Reiche in those meetings. I have no reason for considering that she was not entitled to make that decision or that her meeting with Dr Siemon and Mr Krenn without Mr Reiche, in the circumstances, could be described as bullying or harassment, or that it in any way injured Mr Reiche in his employment with Neometals, or harmed his reputation. There was no evidence from which a conclusion could be drawn that Dr Purdie was involved in ‘critical discussions’ relating to Primobius or that she had discussions with Dr Siemon and Mr Krenn affecting Mr Reiche’s ability to discharge the duties he owed to Primobius.

Asserted termination of contractor without consultation

275    Mr Reiche gave evidence about the circumstances in which Neometals terminated the contract it had for the services of Mr Prassas. Mr Prassas had been a contractor in Neometals’ battery recycling team from April 2022 and he reported to Mr Reiche. Mr Reiche regarded him as essential to the success of his team. The circumstances of the termination of Mr Prassas’ contract, Mr Reiche’s involvement in discussions that preceded it, and the decision to terminate that contract, are set out later in these reasons. Mr Reiche was involved in discussions concerning the termination of Mr Prassas’ contract. He was given an opportunity to express his view and expressed it. Nothing that Dr Purdie said or did regarding Mr Prassas was overbearing or involved consistent or repeatedly annoying or attacking Mr Reiche. She simply took a different view to Mr Reiche regarding the necessity and value of the work Mr Prassas was performing for Neometals and Primobius. Expressing disagreement with another person reasonably and respectfully for reasons related to management of a company’s business or affairs is not bullying or harassment.

June 2024 board meeting

276    Shortly after Ms Di Virgilio joined Neometals she was informed by Mr Carone that the business was cash constrained and the issue had been more challenging because of an undersubscribed capital raising undertaken in November 2023. Ms Di Virgilio raised the idea of a restructure in a meeting with Mr Cole and Mr Reed as a means of reducing costs and conserving cash. Ms Di Virgilio prepared a board paper outlining her recommendations and presented it at the board meeting held on 13 March 2024.

277    The purpose of the paper was to provide the board with an overview of effective organisational restructure planning and program execution. The background to the paper was expressed to be a change of the financial circumstances of Neometals that Ms Di Virgilio considered required the board and senior management to critically assess the company’s overall organisational structure, to ensure that it was aligned with the company’s objectives for the 2025 financial year and its need to reduce operating costs and conserve cash.

278    No further steps were taken regarding an organisational restructure until June 2024. However, as already mentioned, Dr Purdie was appointed COO, Mr Kelsall was appointed to replace Mr Carone as CFO and Mr Smith was appointed general counsel in May 2024.

279    In June 2024 Ms Di Virgilio prepared a further board paper dated 20 June 2024. The purpose of that paper was to provide the board with a summary of potential resourcing scenarios based on Neometals’ revised strategy and the restructuring opportunities available.

280    The report set out three phases. The first phase was for immediate action to commence on 1 July 2024. That phase included significantly reducing spending on consultants. The second phase involved a focussed headcount reduction. The third phase involved deeper and broader reductions in headcount.

281    The first phase had a target date of 1 July 2024 and the report identified a potential headcount saving in that phase through removal of the role for the head of lithium/vanadium. Michael Tamlin was in that role. That role was on the same level as head of recycling, Mr Reiche’s role, within the then existing organisational structure of Neometals. Both the head of lithium/vanadium (Mr Tamlin) and head of recycling (Mr Reiche) reported to the COO (Dr Purdie).

282    The second phase had a target date of 31 August 2024 and the report identified potential headcount savings in that phase through removal of eight other roles. The report said ‘This list is not final and would need to be reviewed again and subject to COO’s structural review and business outcomes.’ The third phase had a target date of potentially March 2025 and the report identified a further six roles for headcount savings in that phase including Ms Di Virgilio’s role. The role for head of recycling was not included in any of the potential headcount savings in the report.

283    The report was prepared with some input from Mr Carone and Dr Purdie. The roles identified for potential redundancy in the report were determined by Ms Di Virgilio and Mr Carone through consideration of and discussions regarding business units, the work required in the role, how that role was being fulfilled and the salaries for those roles. The paper did not identify the role for head of recycling for potential redundancy because Ms Di Virgilio had been involved in discussions with Mr Cole and Mr Reed about Mr Reiche’s performance in April 2024 during which Mr Cole and Mr Reed had decided to retain Mr Reiche with additional training and support. Ms Di Virgilio was of the view that making his role redundant was unlikely to be supported by the board at that time.

284    The minutes of the board meeting held on 27 June 2024 record that the resourcing paper was taken as read and there was a general discussion. Further, it was confirmed that Mr Tamlin would be leaving Neometals around Christmas 2024. The board paper indicated that Mr Tamlin was working out a notice period. I infer that his employment had already been terminated and it was not proposed to replace him in the organisation. The minutes do not record that any resolution was made or further action requested.

Termination of Mr Prassas’ contract

285    On 1 July 2024 Mr Kelsall commenced as CFO.

286    In early July 2024 Mr Kelsall asked Ms Di Virgilio to identify all contractors and consultants who had agreements with Neometals, their roles and responsibilities and how much they were being paid. Ms Di Virgilio provided that information to Mr Kelsall and it included Mr Prassas. For the purpose of saving costs, Mr Kelsall and Ms Di Virgilio agreed that all contractor and consultancy agreements, including that of Mr Prassas, should be terminated. That was consistent with the first phase of the organisational restructure set out in the June board paper.

287    Some undated text messages from Mr Prassas to Mr Reiche were tendered. In these texts Mr Prassas expressed concern about the manner in which he had been treated by Dr Purdie and Dr Siemon at meetings in Germany in the period between 2 and 4 July 2024. Mr Prassas said that Dr Siemon had ‘conducted an exit interview on how [Mr Prassas] could wrap up [his] work’. Mr Prassas concluded that he was confused about what had transpired as he had been assured that he was a Neometals representative and part of the joint venture.

288    On 4 July 2024 Mr Reiche sent an email to Dr Siemon, Dr Purdie and Mr Prassas, copied to Mr Reed, in which he expressed his view about the importance of Mr Prassas’ role within the team.

289    On 8 July 2024 Ms Di Virgilio attempted to contact and speak with Mr Reiche about the termination of Mr Prassas’ contract but she was unable to do so.

290    On 9 July 2024 Ms Di Virgilio sent an email to Mr Kelsall attaching an agenda for a meeting with Dr Purdie. The email indicates it was sent at 11.57 am and refers to a meeting ‘first thing her time tomorrow’. The agenda includes a heading ‘Alignment on Cost Saving Initiatives’. Under that heading it refers to ‘Consultants/Contractors’.

291    On 9 July 2024 Ms Di Virgilio sent an email to Mr Reiche. The email indicates it was sent at 5.37pm. In that email she said:

…

As we discussed briefly on the phone earlier this afternoon, as you are aware we are looking at all consultant spending at the moment. As part of this review and following the discussions last week in Germany Jenny P[urdie] has [made] the decision in consultation with [Chris Kelsall] as CFO that we need to finish up Michael's [Prassas] work as he's been doing now to be conducted by Michel's [Siemon] team in Germany. Given Jenny is away in Europe on annual leave she asked me to advise you of this decision in person. As you know I've been trying to meet with you since yesterday morning, however due to your travel to Melbourne, me being WFH this morning and now your wife[’]s illness this has not been possible.

As noted in Michael's [Prassas] email last week he is currently working on the following piece of work:

"I will now continue to work on the Chinese Spoke benchmarking summary which will be most likely finished by beginning of September due to my upcoming vacation"[.]

Is there a reason you would see this work taking more than 3 weeks to complete (end of July) noting that Michael [Prassas] is taking August as leave?

We propose to ask Michael [Prassas] to finish this piece of work above by the end of July and consider our request to terminate the contract without the 4 notices considering over the previous 12 months the company has supplied him with over $600K worth of work.

…

292    Mr Reiche gave evidence to the effect that this email from Ms Di Virgilio on 9 July 2024 advised him that Dr Purdie and Mr Reed had decided to terminate Mr Prassas’ contract and requesting a meeting with Mr Reiche on 10 July 2024. I do not consider Mr Reiche’s evidence to be an accurate summary of the email of 9 July 2024. It refers to a decision of Dr Purdie and Chris Kelsall, not Chris Reed, of a need to ‘finish up’ (that is, complete) Mr Prassas’ work and to a ‘proposal’ rather than a decision to terminate his contract without the required notice period. Mr Reiche’s mischaracterisation of the email is an example of him misunderstanding or not fully comprehending written English or, otherwise, giving evidence that he perceives to be in his interests.

293    On 9 July 2024 Ms Di Virgilio sent an email to Dr Purdie and Mr Kelsall. The email indicates that it was sent at ‘6:04:45 GMT +8.00’. It is not clear if it was sent in the morning (AM) or in the afternoon or evening (PM) Perth time. The subject line of the email is ‘Confidential Restructure Draft Paper’. The email commences: ‘Chris [Kelsall], apologies I wasn’t able to get this to you before COB today for your review before it went to Jenny P[urdie]. It’s in early stages however I think it contains the key pieces we need for our discussions tomorrow.’ I infer that ‘COB’ is shorthand for ‘close of business’. Therefore, having regard to the contents of the email, I infer that it was sent at 6.04pm, Perth time, ahead of a meeting planned to be held via telephone or video with Dr Purdie who was, at that time, in Europe.

294    The email was tendered with an organisational chart. The organisational chart has handwriting on it that has crossed through 16 roles including the roles for Mr Prassas and Mr Reiche. The email and organisational chart were tendered over Mr Reiche’s objection. There was no evidence from any witness regarding whose handwriting was on the organisational chart or when that handwriting was placed on the document. Further, the email has the discovery number NMT.0002.0001.0055 and the organisational chart the number NMT.0002.0001.0057 which suggests that there is a page missing between those two documents. Additionally, the subject line of the email is ‘Confidential Restructure Draft Paper’ and the attachment is said to be in its early stages, but containing the key pieces. The subject line and description of the attachment do not reflect a mere organisational chart with or without handwritten notations. Therefore, I draw no inferences about what roles were the subject of discussion or consideration for termination or redundancy at the meeting proposed with Dr Purdie. However, I do infer Ms Di Virgilio sent an email to Mr Kelsall and Dr Purdie on the evening of 9 July 2024 to which was attached a document that related to a draft restructure paper.

295    On 10 July 2024 Mr Reiche met with Ms Di Virgilio. Later that day Ms Di Virgilio sent Mr Reiche an email (at 1.54PM) in which she said:

…

Thanks for talking me through your concerns with how we exit Michael [Prassas] and making sure we are all aligned.

As we discussed, given Jenny [Purdie] is on annual leave and overseas, it was agreed when we made the decision to reduce contractor spend and exit all contracts ASAP last week with Chris K[elsall] that I would discuss it with you on Monday and get you across the decision so you and I could talk to Michael [Prassas].

Now we have discussed it further as was always the intention before we went to Michael [Prassas]. I agree we need to get Chris R[eed] across the decision also and plan an orderly exit to the agreement.

I'll book us in a time to talk to Chris R[eed]. I don't want to bombard him on his first day back so let's book that in for Monday. As you see I have cc'ed Jenny [Purdie] and Chris Kelsall so they are aware of the situation and it's my call to delay the conversation with Michael [Prassas] until next week.

…

296    Mr Reiche gave evidence of the points discussed during his meeting with Ms Di Virgilio. He made minutes of the meeting and asked Ms Di Virgilio to acknowledge the minutes which she refused to do. Ms Di Virgilio said she would not sign the minutes because it was not usual practice to minute conversations between colleagues and if he had wanted the conversation documented he should have told her so that she could keep her own minutes. She also said the minutes were taken without her knowledge. It was unclear, if and the extent to which Ms Di Virgilio disputed the accuracy of the minutes. In any case, I take them to record Mr Reiche’s statement of what was discussed with Ms Di Virgilio. The minutes record, amongst other things, that Mr Reiche expressed a concern that he was not involved in any decisions regarding terminating Mr Prassas’ contract. Further, that he should be involved in any further discussions or decisions regarding terminating that contract.

297    As is explained later, this is an example of an interaction between Mr Reiche and Ms Di Virgilio that tends to lend credibility to Ms Di Virgilio’s evidence that she formed the view that Mr Reiche was not suitable for the role of head of recycling. Recording and asking a colleague to sign minutes of an informal meeting is unlikely to foster a trusting and open relationship with that colleague particularly if the colleague was unaware that the meeting was intended to be recorded with minutes.

298    On 11 July 2024 Ms Di Virgilio and Dr Purdie received an email from Mr Reed with the subject line ‘Employee feedback’. It relates to both Mr Reiche and Mr Prassas and the circumstances in which it was sent are addressed in more detail later in these reasons when dealing with the reasons for the decision to make Mr Reiche’s role redundant. Relevantly, the email expresses surprise, on the part of Mr Reed, to hear ‘that Michael P[rassas] is to be terminated rather than work out the balance of his contract (for roughly similar cost ~$100k)’. Ms Di Virgilio responded and said, amongst other things: ‘No decisions have been made in your absence.’ (Mr Reed had been on annual leave in the early part of July 2024.) The email indicated that there had been discussions with a number of options for Mr Reed to consider and discuss at a meeting the following day. Ms Di Virgilio added: ‘Noting that these are preliminary discussions where we will take your guidance and feedback and return to you based on this until management has an aligned position to present to the Board.’ Ms Di Virgilio denied in cross-examination that any decision had been made at that time or before to terminate Mr Prassas’ contract.

299    The following facts are taken from the evidence-in-chief of Dr Purdie. Her evidence remained consistent and unshaken in cross-examination and I accept it.

300    Dr Purdie had a number of conversations with Mr Reiche about Mr Prassas and had formed the view that Mr Prassas’ work was of a commercial rather than technical nature and his role was better suited to the work done under Dr Siemon. Mr Reiche and Dr Purdie discussed the possibility of moving Mr Prassas into Dr Siemon’s team. Dr Purdie also discussed that possibility with Dr Siemon during her visit to Germany in early July 2024, but Dr Siemon told her that he did not have any work for Mr Prassas going forward. Dr Siemon had also expressed the view that Mr Prassas was too expensive for the work he produced, he was billing a lot to Neometals, that was being back-charged to Promobius, without delivering much value and that the tension with other team members had not been handled well. Dr Siemon suggested having Mr Prassas work out his contact and cancelling the arrangement.

301    Dr Purdie’s conversation with Dr Siemon, coupled with the need for Neometals to save on costs and an ongoing review of contractor costs led by Mr Kelsall resulted in Dr Purdie forming the view, in consultation with Mr Kelsall, to recommend that Mr Prassas’ contract be terminated early. After her visit to Germany Dr Purdie commenced two weeks of leave. She asked Ms Di Virgilio to inform Mr Reiche of the recommendation to terminate Mr Prassas’ contract early and to initiate discussions with Mr Reed to progress it. I infer from these facts and the emails Ms Di Virgilio sent with an agenda and referring to a draft restructure paper that Dr Purdie’s consultation with Mr Kelsall and instruction to Ms Di Virgilio took place during discussions that took place between Dr Purdie, Mr Kelsall and Ms Di Virgilio while Dr Purdie was in Europe in the early part of July 2024.

302    When Dr Purdie returned from leave no steps had then been taken to terminate Mr Prassas’ contract. On 24 July 2024 Mr Reiche arranged a meeting with Mr Reed, Mr Smith, Ms Di Virgilio and Dr Purdie to discuss the need for Mr Prassas to continue at Neometals. During that meeting Mr Reiche was adamant that Mr Prassas’ contract should not be terminated. Dr Purdie was open to retaining him, but was of the view that Mr Reiche had not presented a business case or strategic argument for that retention. It was not clear to her what work would not be done if the contract were terminated early. Mr Reed agreed that Mr Prassas’ contract would be terminated on 1 August 2024. Mr Smith was instructed to draft a letter to advise him of that decision. Mr Prassas’ contract was subsequently terminated.

303    I conclude that no decision to terminate Mr Prassas’ contract had been made as of 10 July 2024. Further, that although Mr Reiche had not been involved in any discussion to terminate Mr Prassas’ contract before 10 July 2024, he had taken the opportunity to express his support, in effect, for retaining Mr Prassas and had expressed that view to Dr Purdie and Mr Reed before 10 July 2024. Ms Di Virgilio had tried to speak with him beforehand but ultimately spoke with him on 10 July 2024. Mr Reiche had the opportunity to discuss retaining Mr Prassas with Dr Purdie and Mr Reed before a final decision was made. Additionally, Mr Reiche was consulted about the decision to terminate Mr Prassas’ contract before that decision was made. Further, the ultimate decision to terminate his contract was made by Mr Reed on 24 July 2024 at a meeting Mr Reiche attended at which he promoted his reasons for not terminating the contract.

Asserted pressure to modify classification of high-risk items on risk register

304    Mr Reiche gave evidence, by reference to an email chain between 4 June and 14 August 2024 involving Dr Purdie, Mr Smith and Mr Reiche, to the effect that Dr Purdie placed pressure on him to modify the classification of high-risk items on the risk register. He also gave evidence to the effect that Dr Purdie downplayed several serious risks and required ongoing revisions that delayed completion of the document. He said that this repeated process, without any clear justification, added to his already overwhelming workload and prevented completion of the risk register. This evidence of Mr Reiche is in the nature of conclusions, submission or commentary based on his interpretation of or inferences drawn from the contents of the email chain.

305    Mr Reiche made no written or oral submission regarding the manner in which the email chain is said to support the conclusions he expressed in his evidence-in-chief and I can find no support in the text of them for the conclusions Mr Reiche has expressed. Dr Purdie’s emails are reasonable and respectful requests for Mr Reiche to prepare a document that was, in her view, consistent with Neometals’ risk policy and in a form that could be approved by the board. For example, requesting that Mr Reiche identify risks of Neometals, rather than Primobius, and do so in clear terms was not ‘downplaying’ risk or unjustified. Views may differ about risk and form, but Dr Purdie was COO of Neometals and Mr Reiche’s line manager. He was required to follow her lawful and reasonable instruction.

306    Dr Purdie gave evidence to the effect that, before her appointment as COO, Mr Reiche had been asked to update the corporate risk register (of Neometals) for the Primobius joint venture. That was required for all projects in the Neometals business. Dr Purdie reviewed the updated register around 4 June 2024, but she was of the view that the updated register was not of the required standard. Therefore, she sent the email of 4 June 2024 to Mr Reiche.

307    Dr Purdie also explained her reasons for considering that the register was not of the required standard. In her view, the risks as initially presented were not fairly balanced. She said that Mr Reiche had listed a number of risks as high or ‘out of appetite’. Under the board policy risks of that nature required actions within 6 months to bring the risk back within appetite or required board approval to continue out of appetite. Dr Purdie considered that Mr Reiche had overstated the level of risk for these items. Dr Purdie also was of the view that the actions developed to bring the risks within appetite were unrealistic or unachievable with the resources (people and financial) available. Dr Purdie did not want to present proposed plans that could not be achieved to the board. She was of the view that Mr Reiche was not taking ‘ownership’ of the risks with a view to ensuring that they were closed within 6 months or escalated to the board with advice that they could not be closed in that time frame. Dr Purdie was of the view that Mr Reiche did not seem to comprehend the concept of ‘risk owner’ and that it did not mean that the risk was the owner’s fault. Dr Purdie expressed the view that she had not downplayed risks, but asked that Mr Reiche consider them from the perspective of Neometals as a 50% shareholder in Primobius rather than from the perspective of Primobius or the business that was running the project. Dr Purdie remained dissatisfied with Mr Reiche’s last attempt at updating the risk register. She remained of the view that the actions to resolve the risk remained farfetched and unachievable. Given that the project was under her leadership she was not preprepared to present such a risk matrix to the Neometals board while those matters remained unresolved.

308    Dr Purdie’s evidence regarding her views of Mr Reiche’s drafts of the updated risk register were unmoved during her cross-examination. I accept her explanation and reasons for requesting Mr Reiche to review and redraft the updated risk register. It is consistent with the views she expressed in the text of her emails to Mr Reiche and with the content of the last draft of the updated risk register.

309    I do not accept that Dr Purdie placed pressure on Mr Reiche to modify the classification of high-risk items on the risk register. Dr Purdie encouraged Mr Reiche to consider risk from what Dr Purdie regarded, as his line manager, as the correct perspective and to identify actions to bring risks within appetite (lower the risk rating) that were realistic and achievable based on the resources available. Put another way, the pressure that Dr Purdie placed on Mr Reiche was to prepare an updated risk register that properly conformed to Neometals’ risk policy and that she was prepared to present to the board. That could, but not necessarily would, mean that the classification of some of the risks that Mr Reiche had identified as high should be reclassified or that, with more realistic actions, the risk classification could be lowered and brought within Neometals’ risk appetite.

310    Mr Reiche may not have agreed with Dr Purdie’s approach, but she was his line manager. Dr Purdie’s email communications used reasonable and respectful language. Reasonable and respectful differences of opinion about risk and compliance with company policies and instruction from a line manager is not bullying or harassment within the ordinary meaning of those words.

9 July letter

311    As already mentioned, on 9 July 2024 Mr Reiche handed a letter dated 9 July 2024 with the subject line ‘Confidentiality Notice’ and a letter with the subject line ‘Whistleblower Protection Disclosure’ to Mr Smith. The letters together are referred to in these reasons as the 9 July letter or formal whistleblower document.

312    The opening paragraph of the whistleblower protection disclosure letter indicates that the ‘disclosure’ pertains to unresolved high-risk items identified within the Neometals operations, particularly regarding the Primobius joint venture. The letter commences with a background section in which it asserts several significant risks were identified at a board strategy meeting on 20 February 2024 and subsequent board meeting on 21 February 2024. It was asserted that Mr Cole had not followed up on the identified risks, leaving critical concerns unresolved, which was asserted to be an improper state of affairs within Neometals, jeopardising compliance and ethical standing and potentially, financial exposure pursuant to the joint venture. The letter then goes on to detail specific instances of the asserted lack of corrective action.

(1)    It was asserted that the board had approved three policies relating to Primobius aimed at mitigating conflicts of interest and enhancing governance: shared data policy, legal policy and code of conduct policy. It was asserted that Mr Cole and Mr Reed formally requested the implementation of the policies by the joint venture partner, but that was declined and, thereafter, Mr Cole and Mr Reed did not pursue the matter.

(2)    It was asserted that on 15 March 2024 during a board briefing Mr Reiche presented additional evidence highlighting ongoing poor governance and substantial risk within the joint venture operations. It was asserted that these concerns were supported with corroborative testimony of Mr Prassas and Ms Ivanova. It was asserted that despite these matters Mr Cole was yet to take steps to rectify the issues.

(3)    The letter then set out certain asserted high-risk items relating to the operations of Primobius. These concerned potential breaches of contract with respect to the MURG project; conflict of interest in relation to decision-making; assumption of design risk; highly deficient and (or) absent information flow from SMS to Primobius and (or) Neometals; and asymmetrical joint venture contract risk. In each case the asserted risk and current status was described together with a recommendation.

313    The letter next set out a section addressing governance policy and implementation in Primobius. It was asserted that Mr Reiche had proposed the shared data policy, legal policy and code of conduct policy aimed at strengthening Primobius’ operational framework. It was asserted that these policies were resisted by the joint venture partner and Mr Cole and Mr Reed had failed to follow it up. Mr Reiche made recommendations to overcome those challenges.

314    The letter asserted that the board had acknowledged the identified risks associated with Primobius and agreed that the issues warranted immediate attention. It was asserted that it was resolved that Mr Cole would take the lead in addressing these concerns to ensure that they were managed appropriately but he had not done so. It was asserted that inaction had left Neometals vulnerable to significant financial, operational and legal risks.

315    The letter next asserted that there had been detrimental conduct towards Mr Reiche after he had raised his concerns about the high-risk items. It was asserted that Mr Reiche had encountered significant pressures from leadership, particularly from Dr Purdie. The letter then set out substantially the same allegations as those made in the proceeding. Namely: undermining Mr Reiche’s leadership and creating a negative narrative; exclusion from meetings and unilateral decision-making; bypassing managerial authority and communication protocols; communication manipulation; unreasonable working expectations; pressure to downsize and assume ownership of historical risks; and manipulative reassignment and constructive dismissal.

316    The letter raised the alleged forgery and asserted that Mr Reiche had been instructed not to delve into the matter and was assured that everything was in order. However, it was asserted that there was clear evidence Mr Reiche uncovered that directly contradicts the reassurances provided by both Mr Cole and Mr Reed.

317    Mr Reiche asserted that he suspected that the detrimental conduct he was allegedly experiencing was a consequence of his earlier disclosures. He called for protection and compliance with Pt 9.4AAA of the Act. He set out a recommendation for addressing alleged ongoing misconduct and re-evaluation of the reporting structure. He requested protection from retaliation or detrimental conduct as a result of the disclosure and asked for regular updates on the status of the investigation related to the disclosure.

318    The two letters together ran to twelve pages. There were nine asserted items of disclosure. There were six asserted descriptions of the current status of certain items. There were 12 recommendations.

319    Mr Reiche and Mr Smith had a discussion about the contents of the formal whistleblower document and confidentiality letter on 9 July 2024. Mr Smith gave Mr Reiche a signed acknowledgement of receipt of the documents. Mr Reiche prepared minutes of their meeting which Mr Smith later signed as an accurate record of what had been discussed. The minutes record that Mr Reiche consented to Mr Smith disclosing the formal whistleblower document to Mr Kelsall. They refer to a follow up meeting with Mr Kelsall and to Mr Reiche obtaining further evidence relating to the forgery allegation.

320    A further meeting was arranged between Mr Reiche, Mr Smith and Mr Kelsall and held on 11 July 2024. Mr Reiche prepared minutes of the meeting. These were not signed or acknowledged by Mr Smith or Mr Kelsall as accurate. The minutes record that three ‘next steps’ were agreed as follows.

    [Mr Reiche] will submit additional evidence and detailed information about the issues raised in his disclosure.

    An independent investigation will be prepared based on the disclosed information.

    The company will provide continued support and monitoring of [Mr Reiche’s] health and well-being.

321    Mr Smith gave limited evidence-in-chief concerning the discussions with Mr Reiche on 9 and 11 July 2024. He gave evidence to the effect that, with the exception of the allegation about the simulated signature of Ms Gray, Mr Reiche’s assertions appeared to be work-related grievances and not protected disclosures under Pt 9.4AAA of the Act. Mr Kelsall also gave limited evidence, but said that at the meeting on 11 July 2024 Mr Reiche undertook to delineate the multiple allegations in a manner consistent with Neometals’ policies. Both Mr Smith and Mr Kelsall were cross-examined at length about these meetings.

322    The cross-examination of Mr Smith and Mr Kelsall regarding what was said during these meetings and the steps taken following them was not easy to follow. The evidence ultimately elicited through the cross-examination was to the effect that the information that Mr Reiche had provided in support of his many allegations was insufficient for Mr Smith and Mr Kelsall to draft terms of reference and instruct an independent third party to commence an investigation. Further information was requested of Mr Reiche to assist in that process. That included identifying the extent to which certain of the allegations, in particular the allegations concerning bullying and harassment, might be better prosecuted under Neometals’ policies related to that topic. The evidence of both Mr Smith and Mr Kelsall was generally consistent with the three ‘next steps’ referred to in Mr Reiche’s minutes.

323    It was repeatedly suggested in cross-examination that after receiving the formal whistleblower document Neometals was under an obligation to investigate the matters referred to in that letter. That was not accepted by Mr Smith or Mr Kelsall without qualification. The qualification was that Mr Smith and Mr Kelsall wanted Mr Reiche to provide further information and confirm which allegations he wanted to prosecute under the Whistleblower policy and which allegations, if any, he wanted to prosecute under other policies.

324    None of the provisions in Pt 9.4AAA of the Act impose an obligation upon a regulated entity (or ASIC or APRA for that matter) to conduct an investigation after an actual or purported disclosure of information that qualifies for protection under Pt 9.4AAA. However, public companies and certain private companies must have a policy that sets out, amongst other things, ‘information about how the company will investigate disclosures that qualify for protection under’ Pt 9.4AAA: s 1317AI.

325    Neometals’ Whistleblower policy indicates that it is to be read in conjunction with the Group Code of Conduct/Values which was not in evidence. The Whistleblower policy provides that, under that Code, Neometals commits to investigating and acting on a report appropriately and promptly. The Whistleblower policy also indicates that management procedures, protocols and practices will be developed and published as to how a report is to be framed and dealt with in a manner consistent with the policy including ‘the fair and objective manner in which the Report and the information the subject of the Report is to be investigated, reported against and otherwise dealt with by the Group having regard to all relevant circumstances’. No management procedures, protocols or practices of that nature were in evidence. Put shortly, no evidence of the information about how the company will investigate disclosures that qualify for protection was tendered.

326    Further, the relevance and significance of the cross-examination regarding the absence of prompt commencement of an investigation after 9 July was unclear and unexplained. There was no allegation that there was a failure to promptly investigate the information contained in the formal whistleblower document or that such a failure was detrimental conduct in the concise statement.

327    Otherwise, Mr Reiche gave evidence to the effect that he attempted to arrange a follow-up meeting to discuss the progress of the investigation and next steps. He said he was unable to do so because Mr Kelsall and Mr Smith had busy schedules and were working on upcoming board meetings, risk register updates, an audit and the visit by Dr Siemon and Mr Krenn, which they treated as priority. Ultimately, a further meeting with Mr Kelsall and Mr Smith was arranged on 19 August 2024 in the circumstances described later in these reasons.

Events after 9 July 2024

328    Mr Reiche gave evidence about certain events that took place after he had provided the formal whistleblower document to Mr Smith. He characterised these events as: interference with a Primobius recruitment process; interference in a Health Check audit; reduction in delegated authority; exclusion from a leadership event; and a pattern of communication through human resources and repeated requests for delivery of project deliverables already submitted. The extent to which that evidence was relevant to any of the matters raised in Mr Reiche’s concise statement was not addressed in Mr Reiche’s written or oral opening or closing submissions. To the extent it has any relevance, it may concern Mr Reiche’s allegations of bullying and harassment and I have treated the evidence as particulars of those allegations made in his concise statement. However, I conclude that the evidence does not support a finding of bullying, harassment or any other detriment to Mr Reiche.

Asserted interference with Primobius recruitment process

329    Both Mr Reiche and Ms Di Virgilio gave evidence that they had a discussion about recruitment for roles on 16 July 2024. Their accounts of that discussion were largely consistent.

330    The evidence was to the effect that the conversation was not cordial and voices were raised. Ms Di Virgilio said that it would be illegal to advertise roles that were not vacant and ready to be filled. Mr Reiche said the roles were vacant and were for positions in Primobius.

331    After the conversation Ms Di Virgilio sent an email to Mr Reiche and Dr Purdie requesting clarification of the roles to be filled and the roles that were on hold. Ms Di Virgilio also requested Dr Purdie confirm that the information that Mr Reiche had provided to the effect that there was an approved and budgeted recruitment for a mechanical engineer and senior extractive metallurgist/chemist/process engineer was correct.

332    Dr Purdie responded with an email indicating that she was not aware of roles for which either Neometals or Primobius was hiring, and requesting that Mr Reiche provide confirmation as to whether the roles were in Neometals or Primobius and, if Primobius, whether they were in the agreed organisational structure and based in Australia or Germany.

333    Mr Reiche replied to these emails on 23 July 2024 confirming that Primobius was currently hiring for the roles identified in Ms Di Virgilio’s email, that they were based in Germany and were in the organisational chart.

334    I do not accept Mr Reiche’s characterisation of these communications as interference, in effect, in the performance of his role as managing director of Primobius. The communications request confirmation that advertising for the roles would, to the extent applicable, accord with Australian law and clarification of which company would be the employer, the location of the role, and whether the employment was within the relevant company’s budget. These requests are in the nature of oversight of the performance of Mr Reiche’s role by Dr Purdie and oversight of recruitment of employees by Ms Di Virgilio. These were matters that were evidently within the responsibilities of Dr Purdie, as COO and Mr Reiche’s line manager, and Ms Di Virgilio as people and culture manager.

Asserted interference with Health Check audit

335    Mr Reiche’s evidence regarding the asserted interference with the Health Check audit was hard to understand and follow. Its significance to his case was not explained and remains a mystery.

336    Dr Purdie gave unchallenged evidence, which I accept, that Dr Siemon commissioned a ‘Health Check’ at her suggestion. Dr Purdie recommended that Mike Straughton be engaged to prepare the report. Dr Siemon accepted that recommendation. Dr Siemon, Dr Purdie and Mr Straughton agreed with the scope that was put to the Primobius advisory board and accepted that at a meeting on 20 June 2024. Therefore, Dr Purdie had involvement in setting the scope and having the work approved. Thereafter, she was also involved in arranging stakeholder meetings and the format, but not the content, of the report.

337    Mr Reiche gave evidence, which I accept, that Dr Purdie informed him at a meeting on 30 July 2024 that she had read a draft of the Health Check report. Mr Reiche characterised that as interference. It was Mr Reiche’s view that, as a managing director of Primobius, he should have performed that function, not Dr Purdie. However, on 30 July 2024 Mr Straughton sent an email to Mr Reiche, Mr Krenn and Dr Siemon attaching a working draft of the report. Dr Siemon gave a presentation to the advisory board at a meeting held on 9 August 2024 that included a discussion of the Health Check report. Dr Purdie was not in attendance.

338    I do not accept Mr Reiche’s characterisation of Dr Purdie’s involvement in the preparation of Mr Straughton’s report as interfering with that process or that her involvement in any way compromised the independence of the report. I concluded that Dr Purdie, as COO of one of the shareholders of Primobius and Mr Reiche’s line manager, assisted Dr Siemon and the advisory board in identifying an appropriate person to prepare the report and to define the scope of the report. She also assisted Mr Straughton regarding the format of the report and facilitated the preparation of the report. Dr Siemon, Mr Krenn and Mr Reiche had an opportunity to review and comment on a draft of the report before it was completed and presented to the Primobius advisory board.

339    A purpose of the report was to investigate the extent to which SAT Austria was not properly sharing drawings and engineering information relating to the MURG project with Primobius. The final report was not in evidence. The draft of the report sent to Mr Reiche identified the scope to involve a systematic ‘walk through’ of the end-to-end project flow, assessment of how the obligations of the parties flow through the project, to identify gaps and highlight interfaces where problems can arise and an investigation into the approach to, and systems of, technical governance at the project level. The last item included an investigation of customer requirements and demonstration of compliance with design and construction requirements; technical governance systems and whether they were being applied; and whether all stakeholders were clear on what will be delivered. The executive summary of the draft indicated that the author of the report was of the view that, in general, the approach adopted was in line with comparable projects, but there were areas for improvement.

340    As mentioned, I do not accept that Dr Purdie interfered with Mr Reiche’s performance of his role as a managing director of Primobius. Mr Reiche had been complaining about a lack of transparency and sharing of technical information on the part of SMS and (or) SAT Austria. Those complaints had been made to the Neometals board. Dr Purdie was a member of the board and the COO. The evident purpose of the Health Check report was to inform the Primobius advisory board and, in turn, the Neometals board, about the extent to which there was a lack of transparency and sharing and, if so, the extent to which it posed risks to Primobius. Dr Purdie’s involvement assisted the Primobius advisory board (and the Neometals board) to obtain information about one of the matters Mr Reiche had raised as a strategic risk. I do not consider there to be any basis for Mr Reiche’s assertion that Dr Purdie interfered with the Health Check report. Further, I do not accept that her involvement in that process caused detriment to Mr Reiche.

Asserted reduction of delegated authority without notice

341    Mr Reiche gave evidence, by reference to an email chain between 23 and 26 July 2024 involving Heike Kaehler-O’Shea, Dr Purdie and Mr Reiche, to the effect that his delegated authority had been reduced without notice to him in July 2024.

342    The effect of the emails was that Ms Kaehler-O’Shea sent an email to Dr Purdie on 23 July 2024 requesting approval for payment of an invoice that had been received from Mr Prassas. Dr Purdie later forwarded that invoice to Mr Reiche requesting an explanation about some of the expenses claimed. On 26 July 2024 Mr Reiche responded with an email indicating that the invoices would usually come to him first for review and then to Dr Purdie as a second approver. Mr Reiche gave evidence to the effect that he believed that the invoices had been sent to Dr Purdie because his delegated authority had been reduced without his knowledge. Dr Purdie gave evidence that she did not know why the invoices had been sent to her rather than Mr Reiche for approval.

343    An affidavit of Ms Kaehler-O’Shea was tendered in evidence explaining the reason that Dr Purdie was sent an email requesting approval of Mr Prassas’ invoice. She was not required for cross-examination. I accept her evidence.

344    The effect of Ms Kaehler-O’Shea’s evidence is that she selected Mr Reiche as the first approver in the Neometals finance system and Dr Purdie as the second approver. However, because Dr Purdie was relatively new in her role as COO she did not have access to that system. Ms Kaehler-O’Shea sent the email to Dr Purdie requesting approval for payment of the invoices because Dr Purdie could not access the system and, because Mr Prassas was due to go on leave, approval for payment was sought on an expedited basis. An email would normally only be sent to the second approver (Dr Purdie) after the first approver (Mr Reiche) had approved payment. Ms Kaehler-O’Shea jumped the step of obtaining approval from the first approver (Mr Reiche) to expedite approval of payment of the invoice by the second approver (Dr Purdie). After Ms Kaehler-O’Shea received Mr Reiche’s email of 26 July 2024 she spoke to Mr Reiche and said that she was sorry for the confusion and that she had sent the invoice to Dr Purdie because Dr Purdie did not have access to the system. Mr Reiche responded with words to the effect that it was okay but confusing and thanked her for letting him know.

345    Dr Purdie, Mr Reed, Mr Cole and Mr Kelsall gave unchallenged evidence, which I accept, the collective effect of which was that in or around July 2024 the board approved a recommendation from Neometals’ risk committee to review the company’s delegated authority matrix. That review was undertaken and the board approved a revised delegated authority matrix at a meeting held on 24 September 2024.

346    It follows that I do not accept that Mr Reiche’s delegated authority was reduced without his notice in July 2024 or at all. I do not accept that Dr Purdie or any other person caused detriment to Mr Reiche in connection with any reduction of his delegated authority.

Exclusion from dinner with Dr Siemon and Mr Krenn

347    Mr Reiche gave evidence to the effect that Dr Siemon and Mr Krenn were visiting Perth on 6 August 2024. Dr Purdie telephoned Dr Siemon and Mr Reiche overheard her say: ‘Christian will feel excluded, but Steven and I are only taking you and Horst out for dinner tonight. Dinner is only for the travellers, as they are Neometals’ guests.’

348    Both Mr Cole and Dr Purdie gave evidence that they had dinner with Dr Siemon and Mr Krenn during their visit and Mr Reiche was not invited.

349    Dr Purdie gave unchallenged evidence, which I accept, that it was Mr Cole who invited Dr Siemon and Mr Krenn to dinner. She was invited, but Mr Reiche was not. It was not Dr Purdie’s idea not to invite Mr Reiche. She telephoned Dr Siemon, but spoke with Mr Krenn. Her evidence of what was said was consistent with Mr Reiche’s account of what he overheard.

350    Mr Cole gave unchallenged evidence, which I accept, that he invited Dr Purdie as a member of Neometals’ board and because Mr Reed was not available. He wanted to discuss some high-level strategic matters between the joint venture partners and he wished to seek the guidance of Dr Siemon and Mr Krenn on those matters. He also wanted to personally reciprocate the hospitality they had accorded him on recent trips to Germany. A Neometals dinner with management had been held on the previous evening. Mr Cole did not consider it appropriate to invite Mr Reiche to the dinner.

351    I do not accept that not inviting Mr Reiche to a dinner caused detriment to him. Mr Cole invited Dr Siemon and Mr Krenn as chair of the Neometals board for the purpose of discussing high-level strategic joint venture matters with them. Dr Purdie was invited as a board member and COO in place of Mr Reed. Mr Reiche could have had no reasonable expectation to be invited to or included in such a meeting. It was not a meeting for management-level employees of Neometals.

Asserted pattern of communications through HR and repeated requests for project deliverables already submitted

352    Mr Reiche gave evidence, by reference to an email from Ms Di Virgilio to him dated 8 August 2024 and his reply on 9 August 2024, that the request for the project deliverables was a reason to terminate Mr Prassas’ contract earlier than agreed.

353    To the extent that Mr Reiche seeks to characterise the email from Ms Di Virgilio as a ‘pattern’ or ‘repeated’ conduct, I do not accept that characterisation. It is a single communication. Otherwise, the relevance of the evidence and Mr Reiche’s view that it was sent for some purpose connected to the termination of Mr Prassas’ contract is unclear and was not explained. Further, Mr Reiche’s subjective view of the purpose of the communication is not of any relevance to any matter in question. The contents of the communications speak for themselves.

354    In any event, Ms Di Virgilio gave unchallenged evidence, which I accept, to the effect that Mr Kelsall wanted confirmation that Mr Prassas had fulfilled his obligations as directed by Mr Reiche for the purpose of justifying previous costs spent on consultants. In accordance with that request, she asked Mr Reiche for the information referred to in her email to Mr Reiche. Further, the request made to Mr Reiche was within the scope of her role as people and culture manager.

355    I do not accept that the email from Ms Di Virgilio caused detriment to Mr Reiche.

1 August 2024 board meeting

356    Mr Reed had been on leave at the beginning of July 2024. On his return he had a conversation with Mr Smith. The evidence of Mr Smith and Mr Reed about what was said during that conversation was not consistent.

357    On 11 July 2024 Mr Reed sent an email to Dr Purdie and Ms Di Virgilio in which he said:

…

Was surprised to hear in a catch up with Cathal [Smith that] a decision has been made (not approved under DAM) for Christian [Reiche’]s termination before the Germans visit in the second week in August. Further, that Michael P[rassas] is to be terminated rather than work out the balance of his contract (for roughly similar cost ~$100k).

…

358    Ms Di Virgilio replied in the following terms:

…

As you are aware Cathal [Smith] has resigned from his position as General Counsel, after 4 weeks with the organisation and is currently acting in a "consulting" capacity.

You have been on annual leave from the business since 1 July. No decisions have been made in your absence. The need to consider our approach to a range of matters stemming predominately from the business's cash position have been discussed with a number of options for you to consider being prepared to discuss with you at the meeting that we have booked in with you tomorrow morning at 9.30am with Chris K[elsall], Jason [Carone] and myself. Noting that these are preliminary discussions where we will take your guidance and feedback and then return to you based on this until management has an aligned position to present to the Board.

Alongside these matters is the feedback of Jason, Chris K and myself on the Cathal for your consideration.

…

359    Dr Purdie gave evidence that she was also on leave in the first two weeks of July 2024. She responded to the email from Mr Reed indicating that, from her perspective, no decisions had been made, options were being investigated, that this was probably best discussed and that Ms Di Virgilio was across the deliberations. That email was not tendered and Dr Purdie was not challenged on her evidence.

360    Ms Di Virgilio gave evidence to the effect that on the following Monday she met with Mr Reed to discuss the situation in relation to Mr Prassas’ contract, but Mr Reiche’s employment was not discussed at that meeting. Mr Reed gave evidence to similar effect. He said that he was not involved in the recommendation to make Mr Reiche’s role redundant, but he had been involved in a discussion after he returned from leave. He said they discussed the scope and timing of the proposed single phase approach.

361    Mr Smith gave evidence to the effect that he had understood from conversations that he had had with Ms Di Virgilio that there were concerns about Mr Reiche’s performance. In the context of arranging upcoming meetings with Mr Krenn and Dr Siemon, Mr Smith said to Mr Reed that if Mr Reiche was not going to be a part of Neometals going forward, there is a query about whether he should be part of the Primobius meetings. Mr Smith said that Mr Reed responded with words to the effect ‘I am not aware [of] any decision to terminate Christian and, as managing director, I think I would know’. Mr Smith was cross-examined at length about his evidence and it was repeatedly put to him that his version was inconsistent with what Mr Reed had said in his email to Ms Di Virgilio and Dr Purdie. However, Mr Smith remained unmoved in his evidence.

362    Mr Reed did not give evidence-in-chief about his email of 11 July 2024, however, he was cross-examined at length on the subject. He accepted that he had met with Mr Smith before the email was sent. He accepted that the email repeated what he had been told in his catch up with Mr Smith. He later qualified his evidence to be that he interpreted from his discussion with Mr Smith that a decision had been made. His answers to later questions also indicated that his recollection of the conversation was not perfect. Unlike Mr Smith, he could not recall the exact words used. His evidence as a whole was to the effect that what he had written in the email was his interpretation of what had been said to him. Nonetheless, Mr Reed accepted that he had reasonably come to the conclusion that a decision had been made to terminate Mr Reiche’s employment based on what he had written in his email. He said that he was surprised that a decision had been made outside the DAM (delegated authority matrix). I infer that to mean that he was expressing surprise that a decision had been made to terminate Mr Reiche’s employment because that decision could not have been made by a person, in his absence, who had the delegated authority to make such a decision. He accepted that he had assumed that the decision had been made by Ms Di Virgilio and Dr Purdie and that is the reason he sent them the email.

363    On balance, I prefer the evidence of Mr Smith about what he said to Mr Reed. Mr Smith gave evidence of the effect or gist of the words used in the conversation. That evidence was unmoved by cross-examination. Mr Reed had no recollection of the words used. In my view, his evidence was largely reconstruction founded on the contents of his email. He described what he had written in his email as his interpretation of what had been said to him. When pressed during his cross-examination to accept that he would not have written the email as he had if Mr Smith had not said that a decision had been made, Mr Reed responded by postulating that ‘there could have been a discussion about it and I’ve interpreted it after being away for a couple of weeks as that the decision has been made and I’m asking those who could have made it had this decision been made, right, getting confirmation. I got confirmation back no decision has been made.’ Although that statement is not evidence and was speculation on the part of Mr Reed, it was speculation the cross-examiner’s question invited. While I do not accept or rely on it as evidence, Mr Reed’s speculation does provide a plausible explanation for the difference between Mr Smith’s account of his conversation with Mr Reed and what Mr Reed wrote in his email to Ms Di Virgilio and Dr Purdie.

364    I conclude that no decision, as a matter of fact, had been made outside the DAM to terminate Mr Reiche’s employment by Dr Purdie, Ms Di Virgilio or any other person as of 11 July 2024. I infer from the email from Ms Di Virgilio to Mr Kelsall on 9 July 2024 attaching a draft agenda for a meeting planned on 10 July 2024 with Dr Purdie and the email later that day from Ms Di Virgilio to Dr Purdie and Mr Kelsall on the subject of a draft restructure paper, that Dr Purdie, Mr Kelsall and Ms Di Virgilio had a discussion on or around 10 July 2024 that dealt with potential roles to be made redundant.

365    Ms Di Virgilio gave evidence to the effect that in the early part of 2024 she formed the view that Mr Reiche was not performing his role in the way, in her experience, a senior executive was expected to perform that role and he was ‘out of his depth’. Ms Di Virgilio prepared a bundle of documents to support her view. That bundle was tendered and in evidence. She provided the bundle to Mr Cole and Mr Reed in around April 2024. The bundle of documents included the emails from Mr Reiche to Ms Di Virgilio and Mr Reed in February 2024, Mr Farghaly’s email to Mr Reiche of 14 November 2023, Mr Cole’s email memorandum of 14 November 2023 concerning the interpersonal tensions between Mr Reiche and Mr Krenn and Dr Siemon referred to earlier in these reasons under the heading Mr Reiche’s early relationship with Mr Krenn and Dr Siemon and other emails suggesting that Mr Reiche’s management style was a reason at least one other employee had left Neometals.

366    In May 2024 Ms Di Virgilio was told by Mr Cole and Mr Reed that a decision had been made to keep Mr Reiche in his role but to give him coaching. Ms Di Virgilio then assisted to arrange an executive coach for Mr Reiche. As already mentioned, Ms Di Virgilio gave evidence that she had not proposed to make the role of head of recycling redundant in her board paper of 20 June 2024 because she did not think making his role redundant would be an option the board would consider as a result of her discussions with Mr Cole and Mr Reed in May 2024.

367    Ms Di Virgilio was cross-examined at some length about the foundation for the view she formed that Mr Reiche was not suitable for the role. She was cross-examined on the inclusion of some, but not all, of the documents in the bundle. None of her cross-examination succeeded in demonstrating that her inclusion of any document in the bundle was misplaced or unreasonable or did not support the view that she had formed. The bundle runs to 384 pages and contains a great deal of duplication. There was little or no reference to it during the trial other than the few documents to which Ms Di Virgilio was taken during her cross-examination. On a number of occasions she said to the cross-examiner that she could explain why the document was included if he would like her to, but he did not ask her to do so. Ms Di Virgilio was not re-examined on the topic. It follows that there was no complete explanation through evidence of Ms Di Virgilio’s reasons for including the documents in the bundle and no submission on that topic. Nonetheless, for the most part, the documents speak for themselves.

368    While it is not necessary to make any findings about whether Mr Reiche was or was not suitable for his role, the emails in this bundle to which reference has been made earlier, provide grounds for Ms Di Virgilio to have formed the views she expressed about Mr Reiche’s suitability for a senior management role. Ms Di Virgilio’s interaction with Mr Reiche regarding the minutes of the meeting between them on 10 July 2024 also provide grounds for her to have formed an adverse view regarding his suitability for the role. As I have already mentioned, I gained the impression that Ms Di Virgilio had antipathy towards Mr Reiche, but I do not consider that would not have influenced her views about his competence to perform the role. She appeared quite dispassionate about the roles made redundant including her own. Further, she presented as an independent, honest and truthful witness. I accept her evidence.

369    Dr Purdie gave evidence which sets out in some detail her first interactions with Mr Reiche. She set out the steps she took after she was appointed COO to speak with various Neometals employees. Amongst other things, Dr Purdie asked Ms Di Virgilio for her view about whether Mr Krenn’s communications with Mr Reiche could be construed as bullying. Ms Di Virgilio expressed the view that the communications were not bullying, but there were some issues with communication and Mr Krenn was just asking Mr Reiche to do his job. In a conversation Dr Purdie had with a former Neometals employee, that person said she was concerned about Mr Reiche’s rudeness and that working with Mr Reiche was the worst experience that she had in her 23-year career.

370    Dr Purdie gave evidence to the effect that she had limited input into Ms Di Virgilio’s board paper of 27 June 2024. She said that, at that time, she was still forming a view about whether, with support and coaching, Mr Reiche could be successful in his role. Dr Purdie said that in the weeks following the June board meeting and after she had visited Germany she gradually formed the view that she was not going to be able to help Mr Reiche succeed. She had numerous discussions with Ms Di Virgilio between June and August 2024 about Mr Reiche’s performance and how best to manage him.

371    Dr Purdie said that by about 11 July 2024 she had formed the view that Mr Reiche’s continued presence in the organisation was impeding Neometals’ ability to build a collaborative Primobius team and was making the achievement of Neometals’ goals more difficult. She said that Ms Di Virgilio and she were aligned in that view. She said that Mr Reed was not necessarily of the same view at that time and that any decision to recommend to the board that, as part of any restructure, Mr Reiche’s role be made redundant ultimately had to be made with Mr Reed’s input and by Mr Reed. She also had not made a firm recommendation to Mr Reed that Mr Reiche should exit and she did not want to debate the topic over email while she was on leave. That evidence was not challenged.

372    I conclude that it is probable that Dr Purdie and Ms Di Virgilio discussed the possibility of making Mr Reiche’s role redundant during a meeting on 10 July 2024 or around that time. Further, they discussed Ms Di Virgilio initiating a conversation with Mr Reed about that possibility while Dr Purdie was on leave. However, a firm decision had not been made by Dr Purdie to make a recommendation to the board to make his role redundant. She wanted to discuss it with Mr Reed when she returned from leave at the end of July 2024.

373    Dr Purdie said that she returned from leave on 22 July 2024. By that time, she had come to the view that Neometals needed to consider whether to recommend exit of Mr Reiche on performance grounds or as part of the corporate restructure. She considered whether making the role redundant was appropriate. After considering a number of factors it became clear to her having looked at Mr Reiche’s position description and the work he was actually doing, his role as described in his position description was not required as a full-time role. Much of the work Mr Reiche was supposed to be doing in his position description was being done within the joint venture by Dr Siemon and his team. Also, a person had been recruited for a technical role who was due to commence in August 2024. All the technical work that Mr Reiche had been doing was to be transferred to that new role. That meant there was little justification for keeping Mr Reiche’s role. Further, the COO role within Neometals was able to perform the function of the Neometals’ representative on the management board of Primobius. After discussions with Ms Di Virgilio, Mr Reiche’s position was ultimately suggested to the board for redundancy.

374    Ms Di Virgilio prepared a further board paper dated 26 July 2024. The purpose of that paper was to provide an updated summary of proposed structuring options and timing. It was based on the assumption that a particular project that was then under consideration would not proceed. The paper recommended a change from the three-phased approach of the June board paper to a single focussed headcount reduction with a ‘tell day’ of 22 August 2024 immediately following the board’s decision regarding the potential project. That paper recommended removal of the role of head of recycling and that Mr Reiche be placed on ‘gardening leave’ during the three-month notice period of his contract of employment.

375    Ms Di Virgilio gave evidence to the effect that the role for head of recycling was included in the roles recommended for redundancy in her board paper of 26 July 2024 for the following reasons.

(a)    An increase in the urgency to save costs after Mr Kelsall was appointed CFO.

(b)    Dr Purdie had expressed the view that the head of recycling role was not adding value to the recycling project and the responsibilities were not sufficient to justify a full-time position and could be redistributed elsewhere in the business.

(c)    Ms Di Virgilio was of the view that Mr Reiche was not the ‘right person’ for the role.

(d)    A new position ‘Manager - Hydrometallurgy’ had been created and a person was due to start in that role in August 2024. The successful candidate spoke fluent German, had 30 years’ experience in the industry and Ms Di Virgilio considered he had stronger qualifications than Mr Reiche in the area of intellectual property. Ms Di Virgilio was of the view that some of the responsibilities of the head of recycling role could be distributed to the new role at a significantly lower salary cost.

I accept this evidence.

376    I conclude that no ‘decision’ had been made to terminate Mr Reiche’s employment or make the head of recycling role redundant in the absence of Mr Reed or a resolution of the board as of 11 July 2024. It is implausible that Dr Purdie alone or with Mr Kelsall and Ms Di Virgilio could or would have made such a decision. It is more likely that a decision had been made, at least by Ms Di Virgilio and Mr Kelsall, by 9 July 2024 to recommend making Mr Reiche’s role redundant. I infer that decision was made before 9 July 2024 because Ms Di Virgilio circulated an agenda dealing with, amongst other things, approval of the restructure plan early on 9 July 2024. However, the decision to make that recommendation to the board was subject to Dr Purdie’s consideration and approval. I infer that Dr Purdie agreed that a recommendation should be made to the board to make Mr Reiche’s role redundant by no later than 26 July 2024 when Ms Di Virgilio prepared her board paper of that date.

377    It follows that the decision to recommend that Mr Reiche’s role be made redundant was made by Ms Di Virgilio and Mr Kelsall before Mr Kelsall was aware of the formal whistleblower document and before Ms Di Virgilio suspected that Mr Reiche may have made a whistleblower disclosure. As explained later in these reasons, based on conversations she had with Mr Kelsall, in late July 2024 Ms Di Virgilio suspected that Mr Reiche had made or may have made a qualifying disclosure. As is also explained later in these reasons, Dr Purdie was not aware of the formal whistleblower document until after the board meeting on 21 August 2024.

378    Ms Di Virgilio presented the 26 July 2024 paper at a board meeting held on 1 August 2024. Mr Reiche, who was present at that meeting, left before her presentation. The paper was taken as read. No resolution was passed, but it was noted that there were roles missing from the restructure that would be added if the board proceeded with the restructure.

379    Mr Reed gave evidence to the effect that at that board meeting there was a discussion about placing Mr Reiche on gardening leave as part of the restructure. The board discussed that collectively, together with Ms Di Virgilio and Mr Kelsall, and collectively agreed that Mr Reiche would not take the news of his redundancy well and so it would be prudent to place him on gardening leave to avoid any confrontations within the Perth office and the Primobius team. Dr Purdie and Mr Cole gave evidence to similar effect.

380    Mr Cole gave evidence to the effect that the meeting on 1 August 2024 was the first time he recalled it being suggested that Mr Reiche’s role be made redundant. The board discussed the rationale for that proposal; namely that his role was expensive and it was more efficient for the COO to perform part of the role and other parts be distributed to other roles. Although it would save the company money, the board requested a more detailed explanatory note analysing the reasons for the proposal to make the role for head of recycling redundant.

9 July follow up and formal request for investigation

381    On 17 August 2024 Mr Reiche sent an email to Mr Kelsall and Mr Smith. The following day Mr Kelsall and Mr Smith acknowledged receipt of the email and a meeting was arranged for 19 August 2024. In Mr Reiche’s email he set out the details of a number of events that he said had taken place after 9 July 2024. He said these events had impacted his ability to perform his duties and had contributed to ‘ongoing health issues’. The events identified were exclusion from the dinner with Dr Siemon and Mr Krenn, reduction of delegated authority, the email communications with Ms Di Virgilio relating to Primobius recruitment, Ms Di Virgilio’s failure to review and acknowledge the minutes Mr Reiche had prepared of their meeting on 10 July 2024 and his concerns about the Health Check report process to which reference has been made earlier in these reasons. He also identified what he described as unreasonable work expectations and overtime. He said he was receiving medical treatment for work-related stress.

382    Before the meeting Mr Reiche received further emails from each of Mr Smith and Mr Kelsall. Mr Smith’s email referred Mr Reiche to the carve out in Pt 9.4AAA for ‘personal grievances’ and referred him to Neometals’ policies relating to such matters. Mr Kelsall’s email referred Mr Reiche to the ASIC website for whistleblowing and provided a link to that site.

383    On 19 August 2024 Mr Reiche met with Mr Smith and Mr Kelsall. During the meeting Mr Reiche asserted that he had been subjected to the detrimental conduct referred to in his email of 18 August 2024 and that was likely due to his disclosures in April 2024. He also raised concerns about his workload and health impacts after these disclosures. None of that evidence was challenged or contradicted. I accept that Mr Reiche raised these matters in his meeting with Mr Smith and Mr Kelsall on 19 August 2024.

384    After the meeting, Mr Reiche sent an email to Mr Kelsall and Mr Smith at 5.00pm. In that email he asserted that he had lodged a whistleblowing disclosure on 9 July 2024 and had not received an update on the progress of any investigation of the company. He also expressed a concern that he would continue to experience what he described as ‘detrimental conduct occasioned to him since 9 July 2024 from Amanda [Di Virgilio] and Jennifer [Purdie]’. He set out, again, the asserted detrimental conduct and asserted that it resulted in him requiring medical treatment. Mr Reiche went on to add:

…

I understand that some of Jennifer [Purdie]'s conduct towards me may be considered a personal workplace grievance. However, if her conduct is determined by the company to be detrimental conduct partly because of my qualifying disclosures, any defence that her conduct may amount to a personal workplace grievance by me is irrelevant because I am not making a disclosure about a personal workplace grievance - rather I am making a complaint that her conduct towards me being detrimental conduct which is prohibited by the Corporations Act, 2001 and our own whistle blowing policy. If the company were to determine that Jennifer [Purdie]'s conduct towards me amounts to bullying, I wish to make a further qualifying disclosure, as bullying is considered misconduct within the company's own policies.

…

385    On 20 August 2024 Mr Smith sent an email to Mr Reiche in which he disputed that Mr Reiche had any grounds to believe that an investigation was underway based on the information that he had provided at that time. The email asserted that it had been agreed on 9 July 2024 that Mr Reiche would consider whether his concerns and disclosures were properly made under the whistleblower provisions or were more appropriately dealt with under Neometals’ other policies. Further, to the extent Mr Reiche wanted to pursue a formal investigation he was to compile all evidence in a structured manner and identify the basis upon which he wanted an investigation to proceed. Mr Smith attached minutes of the meeting on 19 August 2024 that he asserted were agreed with Mr Reiche the previous evening. On 20 August 2024 Mr Reiche sent an email to Mr Kelsall and Mr Smith at 5.17 am. In that email he requested that the minutes record his asserted connection between what he described as the April 2024 disclosure and the subsequent detrimental conduct he had been experiencing.

386    On 20 August 2024 Mr Reiche sent a further email to Mr Kelsall and Mr Smith at 12.44pm. That email attached two memoranda requesting formal investigations. The first had the subject ‘Formal Request for Investigations and Clarification on Policy Framework – Link Between April Disclosure and Subsequent Detrimental Conduct’. Mr Reiche asserted that the subject of the first memo engaged the Neometals’ Whistleblower Policy, ‘Discrimination, Harassment and Bullying Policy’, ‘Code of Conduct (Corporate Governance Charter)’, ‘Workplace Health and Safety Policy’ and ‘Mental Health and Wellbeing Policy’. The second memo had the subject ‘Formal Request for Investigation into Bullying Conduct by Horst Krenn’.

387    On 21 August 2024 Mr Reiche sent another email to Mr Kelsall and Mr Smith. In that email Mr Reiche asserted that the 9 July letter was intended to be treated as a formal whistleblower disclosure protected under the Act and Neometals’ Whistleblower policy. He again asserted a connection between what he described as ‘the April 2024 disclosure regarding the forgery incident’ as triggering the detrimental conduct he had been experiencing. Mr Reiche acknowledged the importance of applying the correct frameworks. He said he had updated the shared file with all relevant documents structured according to his initial disclosure and that he had indicated incidents that should be investigated under the Whistleblower policy and the Act that might also fall under other policies. He also said that he was not required to undertake his own investigation and present evidence in support of his concerns, but that he had done his best to provide the evidence he had been able to compile and categorise.

388    Based on the facts referred to in paras [311] to [327] and [381] to [387] of these reasons, I conclude that during the meeting between Mr Reiche, Mr Smith and Mr Kelsall on 11 July 2024 there was a discussion about the possibility that certain of Mr Reiche’s allegations may be more appropriately dealt with under one of Neometals’ policies other than the Whistleblower policy. Mr Reiche agreed to consider whether he wanted to engage another policy and that he would come back to Mr Smith and Mr Kelsall after he had given that consideration. Mr Reiche also agreed to provide further information in support of his assertions to Mr Smith and Mr Kelsall. I also accept that Mr Reiche attempted to meet with Mr Kelsall and Mr Smith before 19 August 2024, but was not able to arrange a meeting at a mutually convenient time for that meeting. After Mr Reiche sent his email of 17 August 2024 and met with Mr Kelsall and Mr Smith again on 19 August 2024, he then gave consideration to the appropriate policies and provided further information to Mr Kelsall and Mr Smith on 20 and 21 August 2024, in accordance with the agreement reached on 11 July 2024.

21 August board meeting

389    Ms Di Virgilio gave unchallenged evidence that she prepared another board paper dated 16 August 2024. There were no changes to the roles affected from the 26 July 2024 paper. The paper included a recommendation that consideration be given to the board exercising its discretion regarding the company’s long-term incentive plan for employees affected by the restructure. There was also an additional paper explaining the proposal to restructure the recycling department.

390    Ms Di Virgilio also gave unchallenged evidence to the effect that she presented the 16 August 2024 paper at a board meeting held on 21 August 2024. There were ten roles affected by the board’s resolution. The restructure plan recommended or contemplated that each person affected would work through his or her notice period. Mr Reiche was an exception. It was recommended that he not be required to work (i.e., be on ‘gardening leave’) for his notice period, but the effective date of the end of his employment would be 27 November 2024. The restructuring plan also contemplated that each person affected would be given an opportunity to consult with Neometals after notification of the restructure of that person’s role. The affected employees would be given two days, with the exception of Mr Reiche who would be given 6 days due to the seniority and complexity of his role. Ms Di Virgilio said that the board endorsed the recommendations for the restructure and resolved to approve execution of the restructure plan.

391    Each of Mr Cole, Dr Purdie, Mr Guthrie, Mr Ritchie and Mr Reed also gave evidence to the effect that the board resolved to approve the restructure plan at the meeting. I accept Ms Di Virgilio’s evidence and that the minutes of the meeting accurately record the board’s resolution.

392    I conclude that the decision to make the role of head of recycling redundant was made by resolution of the Neometals board of directors through approval of execution of the restructure plan described in Ms Di Virgilio’s board paper of 16 August 2024.

Notice of redundancy and termination of Mr Reiche’s employment

393    On 21 August 2024 Dr Purdie and Ms Di Virgilio unsuccessfully attempted to inform him of the board resolution and that a decision had been made to make his role redundant.

394    Dr Purdie and Ms Di Virgilio gave largely consistent evidence. The effect of their evidence was that Dr Purdie and Ms Di Virgilio entered Mr Reiche’s office in the afternoon of 21 August 2024 and Dr Purdie said words to the effect ‘these conversations are never easy’, but before she could complete her sentence, Mr Reiche stood up and said words to the effect ‘I’m unwell, it’s not right that you try to have this discussion with me when I am not well’ and he began to pack his things. Mr Reiche also asked if he could speak with his lawyer and refused to engage further in conversation. Mr Reiche then went to Mr Smith’s office. Neither Dr Purdie nor Ms Di Virgilio were able to inform Mr Reiche of the board’s approval of the restructure plan and that Mr Reiche’s role had been made redundant.

395    Dr Purdie gave evidence that after the interaction with Mr Reiche and discussion with Ms Di Virgilio they agreed to temporarily block Mr Reiche’s access to the company’s computer systems, place his company credit card on hold and disable his office entry card. That decision was made because they were of the view that Mr Reiche was acting unpredictably. Dr Purdie had also formed the view that gardening leave was no longer appropriate. She expressed the view that gardening leave requires a level of trust on both sides including that the employee will act reasonably and in line with whatever had been agreed. Dr Purdie was no longer confident that she could predict how Mr Reiche would behave on gardening leave.

396    On 22 August 2024 Neometals announced the restructure to the ASX.

397    Neometals sent a letter to Mr Reiche dated 22 August 2024 by which he was notified of the board decision to restructure the organisation and a proposal to make the role of head of recycling redundant. The letter indicated that no decision had been made with respect to Mr Reiche’s employment and that the company wanted to consult with him on the impact of the decision to make his role redundant. The letter referred to a meeting with Mr Reiche on 21 August and proposed a further meeting to discuss any proposals on 27 August 2024. The letter offered employee assistance counselling at Neometals’ cost and referred Mr Reiche to Ms Di Virgilio if he had any further questions. Mr Reed signed the letter. Mr Reiche gave evidence to the effect that he received the letter on 22 August 2024. Ms Di Virgilio gave evidence to the effect that the letter was sent by courier to Mr Reiche’s home address on 23 August 2024. In any case, I conclude that, by no later than 23 August 2024, Mr Reiche had received the redundancy letter.

398    Ms Di Virgilio gave evidence to the effect that she made a number of attempts to contact Mr Reiche to discuss the redundancy of his role with him. That included text messages and emails on 22 August 2024, sending a notice of redundancy to him by courier on 23 August 2024 and a further email on 30 August 2024. Mr Reiche responded outlining his medical concerns and attaching a medical certificate. Mr Reiche’s solicitor advised Ms Di Virgilio by email that Mr Reiche was too unwell to communicate, consult or receive any document.

399    Mr Reiche sent an email to Ms Di Virgilio dated 30 August 2024 attaching a medical certificate of Dr Jass Narulla. In the certificate Dr Narulla expresses an opinion that Mr Reiche was suffering from severe health issues directly related to work stress. The reasons given for his stress, anxiety and physical symptoms was ‘ongoing systematic bullying and detrimental conduct of his superiors in the company’ and ‘by failure of the company which has breached his right to whistle blower protection’. Dr Narulla expresses the opinion that Mr Reiche was unfit for work due to mental health concerns and that he had physical symptoms. Further, that Mr Reiche was unable to engage in any work-related activity including attending meetings, making decisions or participating in consultations about his role or employment. Additionally, Mr Reiche was unable to provide any written feedback or correspondence related to his employment.

400    Dr Narulla was not called to give evidence. Mr Reiche applied for leave to adduce expert evidence relating to Mr Reiche’s mental condition. Neometals objected to that application and leave was refused. Consequently, neither Dr Narulla nor any other medical practitioner was called to give evidence.

401    I do not accept the medical certificate as evidence that Mr Reiche suffered from any medical condition, the causes of that condition or that he was unable, as a matter of fact, to engage with Neometals regarding his redundancy due to a mental condition. I take the medical certificate as evidence that Ms Di Virgilio was made aware that Dr Narulla held the opinions he expressed in that certificate.

402    I also observe that the causes Dr Narulla ascribes to Mr Reiche’s mental condition were not proved and, as set out earlier in these reasons, I have found that Mr Reiche was not subjected to bullying or harassment as he claimed. Further, there is no evidence that Neometals breached its Whistleblower policy. Additionally, Dr Narulla’s opinion regarding Mr Reiche’s inability to engage or perform work-related activities is somewhat inconsistent with evidence of the contemporaneous meetings of Mr Reiche with Mr Smith and Mr Kelsall relating to the subject matter of his formal whistleblower document, the detailed emails and memoranda he prepared and sent to them between 19 and 21 August 2024, Mr Reiche’s preparation and submission of his TIL claim, including detailed schedules relating to the time he claimed for work performed outside normal working hours, and the detailed contents of his email to Ms Di Virgilio of 30 August 2024. In these circumstances, it would not have been unreasonable for Ms Di Virgilio, and others, to treat Mr Reiche’s explanation of his inability to engage with Neometals with a fair degree of scepticism.

403    Ms Di Virgilio gave evidence to the effect that she made a decision on 2 September 2024 to terminate Mr Reiche’s employment with immediate effect. A letter of termination was prepared, but it was not approved or signed by Mr Reed until 4 September 2024. The termination letter was sent to Mr Reiche by email on 4 September 2024.

404    Ms Di Virgilio was not challenged on her evidence to the effect that she made a decision to terminate Mr Reiche’s employment with immediate effect on 2 September 2024. Her cross-examination was focussed on her knowledge of the impact that immediate termination would have on Mr Reiche’s existing visa and her reasons for deciding to terminate with immediate effect. Amongst other things, Ms Di Virgilio accepted that she understood that immediate termination may have that impact. She also said that she had regard to that impact and has sought the advice of an immigration lawyer in relation to Mr Reiche’s redundancy. However, she was also aware that Mr Reiche had 180 days, not 60 days as he has said in his affidavit, within which to find new employment for the purposes of condition 8607 attached to his visa.

405    Mr Reed gave evidence to the effect that he had a conversation with Ms Di Virgilio on 30 August 2024 during which she said it would be better to terminate his employment immediately and pay him out in lieu of notice, given his lack of engagement to discuss the redundancy or alternatives. Mr Reed agreed with that recommendation and therefore signed the termination letter on 4 September 2024. During his cross-examination he confirmed that he adopted Ms Di Virgilio’s reasons.

406    There was no evidence that Ms Di Virgilio had authority to depart from the restructure plan recommendation that Mr Reiche be placed on gardening leave that the board had approved and resolved should be executed. However, it is implicit that Mr Reed, as CEO, had that authority because he signed the letter of termination.

407    I conclude that the decision to terminate Mr Reiche’s employment with immediate effect and to pay him in lieu of notice was made by Mr Reed no later than 4 September 2024 when he signed the termination letter. That was a decision of Neometals by Mr Reed as its duly authorised agent and CEO. It was not a decision of Ms Di Virgilio on 2 September 2024 or at any other time. What she described in her reasons as a decision she made on 2 September 2024 was a decision to recommend immediate termination to Mr Reed.

Mr Reiche’s visa status

408    Mr Reiche gave unchallenged evidence to the effect that he is a German citizen. He has been granted a Temporary Skill Shortage (Subclass 482) visa. He gave evidence that if his employment is terminated, he is unable to satisfy visa condition 8607 and find another employer who can sponsor his visa within 60 days, he will not be able to remain in Australia. Further, his wife also has a visa as a dependent. They wish to remain in Australia and have made an application for permanent residency by way of a Global Talent (Subclass 858) visa. That application is pending.

409    Regarding visa condition 8607, that is a condition contained in Sch 8 of the Migration Regulations. That condition was amended by Sch 1 to the Migration Amendment (Work Related Visa Conditions) Regulations 2024 (Cth), which commenced on 1 July 2024 and replaced subclause 8607(5) of the Regulations so that it now provides that the visa holder may cease employment for a period of time that does not exceed 180 days. No submissions were made regarding the legal effect of Mr Reiche’s Subclass 482 visa nor the impact that the decision to terminate his employment with immediate effect had, if any, on that visa. Nonetheless, the parties conducted the proceeding on the assumption that the effect of the decision to terminate the employment contract with immediate effect was that the 180-day period commenced running from 4 September 2024 and will end on 3 March 2025. Whereas, if Mr Reiche had worked out his period of notice (whether on gardening leave or not), the 180-day period would have commenced running from 4 December 2024 and would have ended on 2 June 2025. That is, Mr Reiche has lost the benefit of an additional three months within which to secure employment that will permit him to remain in compliance with condition 8607 of his Subclass 482 visa.

410    Mr Reiche tendered an email he received from Saurabh Smar, a registered migration agent, the effect of which was that termination of Mr Reiche’s employment with Neometals could impact the outcome of his application for a Subclass 858 visa. That email was tendered without objection. I accept that termination of Mr Reiche’s employment may affect the outcome of his visa application if he is not able to obtain alternative equivalent employment within Australia. However, that is a consequence of terminating his employment before a decision to grant or refuse the visa has been made. There is no evidence that a decision on the visa application will be made before Mr Reiche has had an opportunity to secure alternative employment. Therefore, on the state of the evidence, there is no evident additional detriment relating to the Subclass 858 visa application that has been caused by the decision to terminate Mr Reiche’s employment with immediate effect. In my view, any detrimental impact of immediate termination of Mr Reiche’s employment on his pending application for a Subclass 858 visa is hypothetical and purely conjecture. The potential impact on his visa application cannot be regarded as a detriment for the purposes of s 1317AD(1)(a) of the Act.

Rejection of TIL claim

411    Mr Reiche gave evidence, in the form of a conclusion or submission, to the effect that he has an entitlement to 1,118 hours for TIL in accordance with Neometals’ TIL and Excessive Work Hours document. A screenshot from Neometals’ payroll system dated 19 August 2024 was in evidence and it records that Mr Reiche claimed 1,118 hours for TIL in the period between 9 October 2023 and 15 July 2024 and that the request was awaiting approval by Dr Purdie. The submitted claim and spreadsheets with details of the dates and times Mr Reiche claimed he worked were also in evidence.

412    Mr Reiche’s payslip dated 9 September 2024 records that upon termination of his employment he was paid for 162.5 hours of TIL that had been approved. Mr Reiche received an email from the address ‘payoffice@theaccountingdepartment.com.au’ dated 29 August 2024 indicating that his claim for 1,118 hours of TIL had been rejected. The reason given is ‘To [b]e discussed with HR – believe claim is in error’.

413    Mr Reiche had earlier submitted a claim for TIL for October and November 2023 and January, April, May and June 2024. That claim was sent to Dr Purdie for approval. She then sent an email to Mr Reiche asking for clarification, indicating that it was unusual to submit a claim nine months after the month in which the TIL was accrued. That email was copied to Mr Reed. Dr Purdie approved those claims after she sought clarification from Mr Reiche and had sent the email copied to Mr Reed. When Mr Reiche’s employment was terminated, he was paid for that accrued TIL.

414    Dr Purdie gave evidence to the effect that she received notification in Neometals’ workflow system, which she believed occurred on 21 August 2024, to the effect that Mr Reiche had submitted a claim for a further 1,118 hours worked in excess of his standard hours which was sent to her for approval. She said that she rejected the claim because there was no detailed justification for the claim and because she thought, given the time Mr Reiche had worked for Neometals, to accrue that amount of TIL was virtually impossible. Dr Purdie did not consider or review the supporting documentation that had been submitted with the claim because she did not notice that there was an icon with a link to an attachment containing the supporting documentation. Dr Purdie also said that she thought that the claim had been submitted in error because she had already approved a claim for TIL that covered the same period. During her cross-examination Dr Purdie confirmed that she had not reviewed the supporting material at the time the claim was rejected. She found it some weeks later when she was preparing her affidavit in the proceeding. After reviewing the supporting material she formed the view that it was a spurious claim. She denied rejecting the TIL claim because Mr Reiche had made whistleblower disclosures.

415    Ms Di Virgilio gave evidence to the effect that she became aware of Mr Reiche’s claim for 1,118 hours of TIL from an email she received from Mr Giordani. Ms Di Virgilio then sent an email dated 5 September 2024 to the addressee ‘NeometalsPayroll’ copied to Mr Giordani and Dr Purdie in which she said: ‘Please can you note in the payroll system that Christian Reich[e]’s TIL claim for 1118 hours is not approved by reason that it was submitted after the policy was withdrawn. Ms Di Virgilio said that she did not make the decision to reject the claim. None of that evidence was challenged.

416    Mr Reed gave evidence to the effect that Mr Reiche had submitted a claim for TIL on 5 July 2024 for around 200 hours. I infer that was the claim that Dr Purdie approved and that was paid out when Mr Reiche’s employment was terminated.

417    Mr Reed also gave evidence that the TIL policy was withdrawn on 16 July 2024 and that on 19 August 2024 Mr Reiche submitted a claim for a further 1,118 hours of TIL. Mr Reed said that as CEO it was ultimately his decision to approve the claim or not. He has made a decision not to approve the claim because it was not justified and Mr Reiche has already been paid the TIL to which he was entitled. Mr Reed said the claim was not justified because in his view the claims were not for work-related travel, but for hours Mr Reiche claimed he worked late or on weekends and the claim amounted to approximately six months of overtime, when Mr Reiche had only been employed for about ten months.

418    Mr Reed was cross-examined at some length on the subject. He was challenged about rejecting the claim for the reasons that it was not for work-related travel because the TIL document, on its face, also applies to excessive hours. The effect of Mr Reed’s evidence in cross-examination was that no one has had a claim for excessive hours unrelated to travel approved. He suggested that the TIL document had to be read with another document, which was not in evidence, that explained how to claim TIL. Mr Reed maintained that the TIL claim was not justified and was unmoved during his cross-examination.

419    The evidence regarding who decided to reject Mr Reiche’s claim for 1,118 hours of TIL, when, and for what reasons, is unclear and inconsistent. Based on the email from ‘payoffice’ to Mr Reiche, I infer that the decision was made between 19 and 29 August 2024. Having regard to the reason given in that email ‘To [b]e discussed with HR – believe claim is in error’, I infer that the claim was originally rejected or not approved by Dr Purdie for the reason that Mr Reiche had already submitted and been paid for a claim for the same period and the hours claimed were unsupported, unreasonable and excessive. Further, the claim was rejected for those reasons by no later than 29 August 2024. That is, Dr Purdie originally rejected the claim in the mistaken belief that the TIL claim was made in error. Dr Purdie subsequently discovered her mistaken belief in the course of preparing her evidence in the proceedings. That is, after the proceeding had commenced.

420    Having regard to Mr Reed’s evidence, I infer that he could, if he so desired, change the decision to reject the claim and approve it. However, Mr Reed, in substance, ratified the decision to reject the claim at some time after 4 September 2024 and payment was not made to Mr Reiche upon termination of his employment because, in his view, the claim was not justified and Mr Reed had already paid Mr Reiche for the TIL to which he was entitled. It is not possible to reach a conclusion about when Mr Reed made his decision. It seems likely that it was after Dr Purdie discovered that the TIL claim had supporting documents because Mr Reed referred in his cross-examination to the TIL claim having been reviewed by legal counsel and Dr Purdie.

421    I conclude that the decision to reject Mr Reiche’s claim for 1,118 hours of TIL was made by Dr Purdie between 19 and 29 August 2024. Further, Mr Reed made a decision to affirm or ratify that decision after 4 September 2024.

Findings and conclusions about alleged detrimental conduct

Decision to make the role of head of recycling redundant

422    As already mentioned, the Neometals board made the decision to make the role of head of recycling redundant by resolution at the board meeting on 21 August 2024. That was conduct of Neometals directly attributable to it through the board of directors as its corporate organ. It was not in issue, and I accept, that the decision was detrimental conduct within the meaning of s 1317AD(1)(a) of the Act.

Decision to terminate Mr Reiche’s employment with immediate effect

423    Mr Reed made the decision to terminate Mr Reiche’s employment with immediate effect from 4 September 2024. That conduct was attributable to Neometals through Mr Reed as its duly authorised agent. It was not in issue, and I accept, that the decision to terminate Mr Reiche’s employment was detrimental conduct within the meaning of s 1317AD(1)(a) of the Act.

424    The proceeding was conducted on the basis that it was common ground that the decision to terminate Mr Reiche’s contract with immediate effect, as opposed to Mr Reiche working out his notice period on ‘gardening leave’ was also conduct that caused detriment to Mr Reiche in that it brought Neometals’ sponsorship of him to an immediate end and started the 180-day period running. That is, there was a separate detriment that flowed from the decision to terminate his contract of employment immediately because it reduced the time that Mr Reiche would otherwise have had to secure alternative employment and sponsorship for the purposes of his Subclass 482 visa.

425    I am prepared to assume, without deciding, that the decision to terminate with immediate effect caused a separate detriment to Mr Reiche from the decision to terminate his employment, in that it reduced the period within which he would otherwise have had to find employment that would allow him to satisfy visa condition 8607. However, it is not obvious that the decision to terminate with immediate effect, overall, was more detrimental to Mr Reiche than would have been a decision that he work through the notice period on gardening leave. For example, Mr Reiche received immediate payment of the salary he would have otherwise received over the three-month notice period. Therefore, he gained the opportunity to earn income from another employer during the notice period and, thereby, increase his employment income in that period. The contract of employment also contained a provision that restrained Mr Reiche from working for certain competitors of Neometals in Australia and Europe for a period of 12 months after his employment ends. By terminating his employment with immediate effect that has, in effect, reduced the period that would have otherwise applied to that restraint period. Nonetheless, as there were no submissions on this matter and it did not appear to be contested, I am prepared to make the assumption that the decision to terminate with immediate effect was also detrimental conduct.

TIL claim

426    Rejection or non-approval of a claim for TIL that Mr Reiche was entitled to make may amount to detrimental conduct. However, Neometals has raised a threshold legal issue as to whether Mr Reiche had any ‘entitlement’ to TIL.

427    Where, as here, the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the terms of the employment agreement are to be found within the written contract. In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [40]-[62] (Kiefel CJ, Keane and Edelman JJ). See, also, Robinson v BMF Pty Ltd (in liq) (No 2) [2022] FCA 1191 at [182]-[186].

428    The relevant principles of contractual interpretation may be summarised as follows.

(1)    The contract must be given an objective construction, by giving proper effect to the text, context, subject matter and purpose of its provisions: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[52].

(2)    The approach to be adopted in construing the contract is the ‘objective approach’ so that the ‘meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean’. Also, ‘[a] commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience’ (omitting footnotes): Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35].

(3)    The contract has to be construed in context, considering its terms as a whole, giving consistent meaning to all of its terms, and avoiding any apparent inconsistency: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle). Put another way, preference is to be given to a construction that gives ‘a congruent operation to the various components of the whole’: Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 at [16].

(4)    In the case of a contract of employment, the context includes that the employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment: Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 at [1] (French CJ, Bell and Keane JJ); Personnel Contracting at [40] (Kiefel CJ, Keane and Edelman JJ).

429    Mr Reiche’s remuneration was AUD 420,000 per year. Additionally, Neometals would consider paying a bonus of up to 33% of that salary. Further, Mr Reiche was eligible to participate in Neometals’ long term incentive arrangements that involve the issue of performance rights that ultimately may result in the issue of shares to employees.

430    A number of provisions are relevant to Mr Reiche’s assertion that he is entitled to TIL of 1,118 hours for overtime he worked between October 2023 and June 2024 and to the termination of his employment. The relevant provisions of the contract of employment are as follows.

4    Hours of work

(a)    Your ordinary hours of work are 8.30am to 5pm Monday to Friday, with a lunch break of 1 hour.

(b)    Because of the nature of your position, you acknowledge and agree that any additional hours that you are required to work in excess of 38 hours per week are reasonable so far as they are necessary for the full and proper performance of your duties under this agreement. Your remuneration includes an amount to compensate for this.

5    Company policies

The Company has various policies which apply to your employment. You must familiarise yourself with these policies. Where the policies place obligations on you, you must comply with them. The Company may review, vary, add to or withdraw the policies from time to time in its absolute discretion. To avoid doubt, the policies and any obligations on the Company set out in them do not form part of your employment agreement and are not binding on the Company.

…

7    Leave

7.1    Your entitlement

(a)    You are entitled to leave in accordance with the National Employment Standards including annual leave, personal/carer's leave, compassionate leave, parental leave, and family and domestic violence leave.

(b)    Currently, your entitlements under the National Employment Standards include:

(1)    4 weeks annual leave each year;

(2)    10 days' paid personal/carer's leave each year - in certain circumstances you may also be able to access unpaid carer's leave and compassionate leave and up to 5 days' unpaid family and domestic violence leave each year; and

(3)    up to 12 months' unpaid parental leave where you have responsibility for the care of a child - in certain circumstances you may be able to extend this leave.

7.2    Evidence – personal/carer’s leave

The Company may require you to provide evidence that you needed to take personal/carer's leave.

7.3    Taking annual leave

(a)    The Company may direct you to take annual leave if your accrued annual leave balance exceeds 8 weeks' leave.

(b)    You must take annual leave during any period(s) when the business is closed, if directed by the Company. If you do not have sufficient annual leave accrued, you must take unpaid leave.

8    Other leave

8.1    Long service leave

You will be entitled to long service leave in accordance with applicable legislation.

…

10    Ending your employment

10.1    Ending your employment with notice

You or the Company may end your employment at any time by giving 3 months' written notice.

10.2    Payment in lieu of notice period

The Company may:

(a)    pay you in lieu of your notice period; or

(b)    require you to work for part of your notice period and pay you in lieu of the balance of the period.

10.3    Calculation of payments if your employment ends

If your employment ends, the Company may at its discretion, taking into account the circumstances of the end of your employment and your performance to that time, make a pro-rata payment to you in respect of short term incentives foregone, and otherwise will calculate any payments in lieu of notice or accrued leave in accordance with applicable law.

…

10.5    Duties during notice period

If you or the Company gives notice ending your employment, the Company may direct you at any time during the notice period:

(a)    not to attend work; or

(b)    not to perform all or part of your duties.

…

17    General

…

17.2    Entire agreement and no reliance

(a)    This agreement states all the express terms of the agreement between the parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

…

431    Neometals had also issued a document entitled ‘TIL Claims – Travel and Excessive Work Hours’. It had an effective date of April 2022 and a version review date of April 2023. Relevantly, the document provided:

1    Purpose

The purpose of this memo is to provide employees with guidance and the procedure for claiming Time in Lieu (TIL) after traveling outside of Perth for work purposes or working excessive hours over a standard work week.

2    Guidelines

This procedure covers all employees of Neometals Ltd (Company) who have travelled outside of Perth for work purposes or have worked excessive hours in a standard work week.

Employees are entitled to claim TIL for:

•    Weekend days spent outside of Perth for work purposes up to a standard work day of 7.5 hours.

•    Additional hours worked over the weekend whilst outside of Perth if more than 7.5 hours.

•    Where the employee has worked in excess of 45 hours in a standard work week.

•    Where an employee has travelled for work and required to quarantine over a weekend due to current state government COVID protocols, the employee is entitled to apply for TIL for the weekend days spent in quarantine as a day worked.

NB: the above are examples and this does not capture all instances where TIL may be applied for by the employee. All applications are to line managers and subject to C-suite approval.

…

4    Approvers

Each employee's direct report will approve the TIL claim through the Payoffice.

432    Mr Reiche submits that that the TIL document is not a ‘policy’. However, he does not explain, assuming that it is not a policy, the manner in which it is alleged to have been incorporated into his contract of employment. An attempt was made to characterise the TIL document as a collateral contract, but no consideration for that contract was identified. Moreover, any implied contract or implied or inferred term incorporating the TIL is inconsistent with cl 4(b) and cl 17.2(a) of the employment contract. The employment contract also contains express terms dealing with leave that do not include TIL: cll 7.1, 7.2, 7.3, 8.1. In these circumstances, reasonable business-people would not understand the TIL document to form part of the contract of employment or any collateral contract.

433    Further, the TIL document does not, in terms, describe an entitlement to TIL. It describes an entitlement to ‘claim TIL’. Applications are to be made to line managers and are subject to C-suite approval. I infer that the reference to ‘C-suite’ is a reference to a person in a role that starts with ‘Chief’. That is, in the case of Neometals, CEO, COO, or CFO. A claim for TIL requires approval of the employee’s direct report. Therefore, the TIL document does not, in terms, describe an entitlement to receive approval for a claim for TIL. It describes something that may be granted to an employee in the discretion of the C-suite. The TIL document provides guidance on how to make a claim to be considered for approval in the exercise of that discretion. In short, the TIL document describes a policy. Such a document falls within the meaning of the expression ‘policies which apply to your employment’ in cl 5 of the contract of employment. Therefore, the TIL document is not part of the contract of employment and is not binding on Neometals.

434    It follows that, in my view, assuming that Mr Reiche had worked in excess of 45 hours in a standard work week as claimed, he had no legal right to be granted TIL for that work. But, it does not necessarily follow that rejection or non-approval of a claim could not be a ‘detriment’ within the meaning of s 1317AD. For example, as already mentioned, an arbitrary, capricious or unreasonable rejection of a claim may be considered a detriment in that, as an employee, Mr Reiche was, at least, entitled to expect that his claim for TIL would be considered and assessed on its merits.

435    On 16 July 2024 Ms Di Virgilio, the people and culture manager of Neometals, sent an email to the address ‘allstaff@neometals.com.au’ in which she said:

…

As you are aware the current TIL Policy for travel and extensive work hours, was drafted in response to a COVID environment and a different time in the businesses life cycle, as such the policy is no longer fit for purpose and has ceased.

All Neometals employment agreements are drafted to incorporate reasonable additional hours of work as it expected for the type of role being performed and the remuneration structure of the employee.

There will always be exceptional circumstances, and these will be discussed with individuals on a case-by-case basis as situations arise, with any approval for TIL hours to be claimed, agreed prior to the travel or hours being worked.

Also, to ensure our employees are working safe and reasonable hours all TIL requests or payment for additional hours will come to me in the first instance in my role as People & Culture Manager.

If you have any questions about this change, please feel free to speak to your manager or myself.

…

436    While the TIL policy was withdrawn on 16 July 2024, employees who had worked outside Perth or in excess of 45 hours per week in the period before it was withdrawn may have had a reasonable expectation, at the time that work was performed, of an ability to claim TIL. In my view, withdrawal of the policy would not reasonably operate retrospectively. Further, the email represented that claims for TIL would be considered in exceptional circumstances. A claim for TIL for work performed before the TIL document was withdrawn may fall within that exception.

437    Nonetheless, for reasons that I will come to, I conclude that neither Dr Purdie’s reasons for rejecting or not approving Mr Reiche’s claim for TIL nor Mr Reed’s reasons for affirming that rejection or non-approval, were not arbitrary, capricious or unreasonable. That is, the rejection or non-approval of Mr Reiche’s TIL claim fell within the discretion of the C-suite approval process in the TIL document and, as such, was not a detriment within the meaning of s 1317AD of the Act.

Bullying and harassment

438    As set out earlier in these reasons, I do not accept that Dr Purdie engaged in conduct Mr Reiche characterised in his evidence as undermining technical communication, communication manipulation, exclusion from meetings with Primobius directors and undermining his role as a managing director of Primobius or termination of Mr Prassas without consultation. In my view, Mr Reiche was not subjected to bullying or harassment by Dr Purdie. There is no sense in which the communications, actions or conduct of Dr Purdie could be described as using her position (as line manager) to coerce Mr Reiche by fear or to persecute or oppress him by force of threats. There is nothing that could be described as continuous or repeated troubling, annoying or attacking. Likewise, there is nothing in the form of frightening or overawing to subdue or influence Mr Reiche. Mr Reiche’s claim for orders to be made under s 1317AE(1) on the ground that Neometals engaged in conduct that caused him detriment in the form of bullying or harassment must fail and be dismissed.

Findings concerning states of mind about asserted protected disclosures

439    As has already been mentioned, it is not necessary for Neometals to disprove that Mr Reiche made protected disclosures under Pt 9.4AAA of the Act to demonstrate that Mr Reiche’s claim is not made out. However, the extent to which Mr Reiche made protected disclosures is relevant to the question of whether the persons to whom Mr Reiche disclosed information believed or suspected that Mr Reiche had made, may have made, proposed to make or could have made a protected disclosure.

Strategic risks and conflict of interest

440    I conclude that none of the members of the Neometals board believed or suspected that Mr Reiche had made, may have made, proposed to make or could have made a protected disclosure concerning the subject matter of the presentations he made at the board meetings in February and March 2024 at any time before 22 August 2024 when they were sent copies of the formal whistleblower disclosure document. There are a number of reasons for that conclusion.

441    As already mentioned, Neometals had a Whistleblower policy. The policy required reporting of inappropriate conduct to immediate supervisors, a designated officer (if an officer had been designated) and (or) the external or internal (if one had been appointed) auditor. If in doubt, a report could be made to a director or the company secretary. The policy indicated that it was desirable that reports be in writing and supported by relevant facts and available evidence. Inappropriate conduct was described as follows:

"Inappropriate Conduct" the subject of this policy includes any behaviour, conduct, act or omission by a member of the Group, by Group Personnel or by a third party (e.g. customer, supplier, competitor or government or regulatory official) in their dealings on behalf of or with any member of the Group, upon which there are reasonable grounds to suspect that there is likely to be (whether or not in actual contravention of the any law):

•    criminality (including but not limited to theft, drug use/sale, violence or threatened violence and/ or criminal damage to property or person);

•    a breach of a legislative, regulatory or contractual obligation or requirement;

•    dishonest, fraudulent or corrupt (including bribery and other improper payments or inducements);

•    a serious risk to the health of an individual or the general public or the financial system;

•    a danger or serious risk to the environment;

•    a material breach of the Group Code of Conduct/Values;

•    a material breach of any Group policy or procedure;

•    an intention to conceal any of the above or records or other evidence relating to any of the above.

Without limiting the foregoing Inappropriate Conduct generally does not include personal work-related performance or inter-personnel grievances especially if more of a social or relatively petty nature. There are other avenues for reporting and dealing with such matters under the Group's HR management policies and procedures.

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

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

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

445    Mr Reiche’s concern about the absence of an open-book arrangement with SMS or SAT Austria also appears to be an allusion to the lump-sum contract for construction of the MURG project. Again, Primobius accepted that arrangement as part of the transaction and division of financial risk on delivery of the MURG project. In the context of a lump-sum construction contract, the absence of an open-book arrangement is normal and an open-book arrangement would not be expected. Therefore, the absence of an open-book arrangement was an ordinary feature of the lump-sum nature of the contract between Primobius and SAT Austria. It formed part of the commercial risks of the MURG project that Neometals had accepted through the joint venture agreement and decisions of its representatives on the Primobius advisory board.

446    The potential for there to be a conflict between the interests of SMS and Primobius and between the interests of Neometals and Primobius was an inherent part of the joint venture structure and shareholders agreement. In this regard, the potential for both Mr Krenn and Mr Reiche to have divided loyalties was obvious and an accepted feature and part of the intended architecture of the shareholders agreement. However, there is, of course, a difference between consenting to an arrangement that has the potential to give rise to a conflict of interest and an actual conflict of interest. As already mentioned, there is a mechanism to deal with conflicts of interest for certain decisions at the advisory board level in the shareholders agreement.

447    Mr Reiche’s specific concern was that Mr Krenn was both a managing director of Primobius (principal) and a managing director of SAT Austria (contractor) under the arrangements relating to the engineering and construction of the MURG project. That position is a reflection of the shareholders agreement that specifically contemplates SMS (here through SAT Austria) providing engineering and construction of recycling plants for Primobius. To the extent Mr Krenn has a financial interest in SAT Austria, it remains a potential conflict of interest where the financial interests of Primobius and SAT Austria are not aligned. Mr Reiche’s concerns were not expressed to relate to a specific matter where the interests of SAT Austria, as contractor, and those of Primobius, as principal, were not aligned in relation to the engineering and construction of the MURG plant with respect to any particular matter or in general. Moreover, under the terms of the shareholders agreement, Neometals had no ability to remove or dictate the person SMS proposed as its appointment to the management board of Primobius. Nothing Mr Reiche raised suggested the existence of an unmanaged actual or potential conflict between the interests of Primobius (and Neometals as shareholder) and the interests of SAT Austria that ought to have been raised and addressed at the advisory board level of Primobius by Mr Cole or Mr Reed.

448    Mr Reiche’s concern about SMS having a majority, through Dr Siemon, of representatives on the Primobius management board was not shared by Mr Cole, Dr Purdie or Mr Reed. It was their understanding that Dr Siemon was independent of SMS. In any case, that was a feature of the commercial arrangements to which Neometals, as an equal shareholder of Primobius, agreed.

449    Mr Reiche’s concern about the possibility of SMS conniving to make a cash call that would result in dilution of Neometals’ interest in Primobius was also misplaced or overstated. The risk of such an event taking place was minimal given that a cash call could not be made without the agreement of Neometals’ representatives on the Primobius advisory board.

450    Mr Reiche’s concern about the absence of transparency or sharing of engineering and design information between SMS personnel and Neometals personnel working within the Primobius joint venture framework was of concern to the Neometals board. That lack of transparency and sharing gave rise to a particular commercial risk relating to the design and performance of the MURG plant. That risk was addressed, in part, by the Health Check audit and report Primobius commissioned in July 2024.

451    Mr Cole gave evidence to the effect that he could understand the background that may have given rise to some, but not necessarily all, of the concerns Mr Reiche raised at the board meeting in February 2024. Mr Cole said that these were not new issues and had been the subject of discussions at board meetings from time to time. He said they were matters that the board had developed strategies to address or had accepted as appropriate business judgments or were already working through and addressing in a methodical manner having regard to the sensitivities of the joint venture and status of the joint venture relationship. Mr Cole considered it likely that SMS was taking a more dominant role in Primobius given that Neometals was remote geographically, there were cultural and linguistic differences and the inability to have taken a more active role during the COVID-19 pandemic and while Primobius was still establishing its own corporate governance systems and human resource capacity.

452    Both Mr Reiche and Mr Cole gave evidence to the effect that Mr Cole said words to the effect: ‘We are accepting these risks. This is a one off.’ I accept that Mr Cole made that statement and it reflected the views of Mr Cole as he expressed them in his evidence. It was also an accurate statement as to the evident historical position of the Neometals board reflected in the commercial arrangements of the joint venture as they stood in February and March 2024 referred to earlier in these reasons.

453    Mr Cole gave evidence to the effect that his assessment of Mr Reiche’s perception on a number of the joint venture related matters addressed at the meeting in February 2024 was that Mr Reiche was inappropriately attributing more sinister or conspiratorial motives on the actions of SMS and the non-Neometals managing directors of Primobius than was warranted. He believed that Mr Reiche’s approach, while respecting the candour of the views he expressed, was inconsistent with the ‘one team’ approach that the Primobius advisory board was trying to foster and that was supported by the Neometals board. He was also of the view that the concerns Mr Reiche raised were not related to the internal affairs of Neometals or suggested any impropriety on the part of Neometals’ personnel. The question of whether Mr Reiche’s comments or concerns were ‘whistleblowing disclosures’ did not cross his mind.

454    Mr Cole also gave evidence that at the meeting in March 2024 he said to Mr Reiche that the need for there to be enhanced governance arrangements put in place for Primobius was not in dispute. Such matters were, in his experience, common in early-stage joint venture arrangements and Neometals was continuing to work through these issues in a methodical and measured way without prejudicing the joint venture relationship itself. Mr Cole said he did not regard, believe or suspect Mr Reiche’s comments to be tantamount to ‘whistleblower disclosures’ given that they addressed commercial strategic issues between Neometals and a third party, were not new revelations and were already being addressed by Neometals. That evidence was unmoved during his cross-examination and I accept it.

455    Mr Guthrie gave evidence to the effect that Mr Reiche had raised concerns during a meeting in around February 2024 in relation to how the joint venture was operating, including the nature of the joint venture structure. Mr Guthrie had understood Mr Reiche’s concerns to be about a subsidiary of SMS and that he considered it was putting its interests ahead of the joint venture. In his view there was nothing to substantiate Mr Reiche’s view. In March 2024 Mr Reiche gave a presentation on policy and procedure and he expressed the view that the joint venture lacked certain procedures. Mr Guthrie was of the view that these were not really matters for the Neometals board, but rather issues for the joint venture. The board discussed that the joint venture was an entity in its own right with its own executive team. If there were certain procedures and protocols that needed to be put in place, they were for the joint venture to determine and implement. Mr Guthrie said it was the collective view of the board that it was not a Neometals board-specific issue. Mr Guthrie said at no time did Mr Reiche claim whistleblower status in expressing his concerns and there was not a request to maintain the confidentiality of what he had said. Mr Guthrie did not believe or suspect that Mr Reiche made or may have made, could have made or proposed to make a whistleblower disclosure at that time. That evidence was not challenged and I accept it.

456    Mr Ritchie gave evidence to the effect that there was nothing that was said by Mr Reiche in the course of his employment or presentations to the board that struck him as anything other than an ordinary management issue or a typical relationship issue. He did not consider that any of the matters Mr Reiche raised at any board meeting he attended was or may have been a whistleblower disclosure. That evidence was not challenged and I accept it.

457    Dr Purdie gave evidence to the effect that she did not consider any comments Mr Reiche made at the board meetings in February and March 2024 or later constituted whistleblower disclosures or that he would make that allegation. Dr Purdie had no specific recollection of the matters Mr Reiche raised at the meetings. However, her evidence during her cross-examination was to the effect that the conflict of interest was self-evident from the joint venture arrangement, she did not accept that there were asymmetrical contracts because the arrangements reflected a commercial risk allocation. and she did not accept that ‘open-book’ arrangements were required for a lump sum contract. She did not accept that requiring Primobius to adopt policies would assist. She accepted that there may have been some risks around disclosure and sharing of design information and drawings. She made no concessions that information of the kind that Mr Reiche disclosed raised with her any belief or suspicion that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA with respect to those matters.

458    Mr Reed gave evidence to the effect that he did not know, believe or suspect that Mr Reiche had made a whistleblower disclosure until he received a copy of the 9 July letter from Mr Reiche’s legal representatives on 21 August 2024. Mr Reed was not tested on that evidence. Taken as a whole, Mr Reed said during his cross-examination that the board did not share Mr Reiche’s view about the nature of the risks he had identified. I accept that Mr Reed did not consider that the information and risks that Mr Reiche raised during board meetings resulted in Mr Reed believing or suspecting that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA with respect to those matters.

459    Mr Reiche also gave unchallenged evidence regarding his state of mind concerning the concerns he had raised at the board meetings in February and March 2024 to the following effect:

It was my view at the time and remains my view that the strategic risks were more pressing and important because of the potential consequences to [Neometals] as [a] publicly listed company. I was also concerned that [Neometals] was not acting in compliance with its ASX requirements as to governance and disclosure.

460    I accept that the true nature of Mr Reiche’s concerns related to ‘strategic risks’ or commercial risks associated with the joint venture and Neometals’ 50% interest in Primobius. However, there was no evidence that Mr Reiche raised with the members of Neometals’ board any concern that, by reason of the matters he had raised or for any other reason, the company was not acting in compliance with its ASX requirements as to governance and disclosure or any other law. Moreover, the requirements the subject of that asserted concern were not identified in his evidence or submissions at trial. I conclude that Mr Reiche did not express any concern to the Neometals board to the effect that he believed or suspected that the company was not complying with the requirements of the ASX or the Act as to governance and disclosure or any other law as a result of the matters he had raised with the board in his presentations.

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

Reverse engineering

462    As already mentioned, Mr Reiche had reasonable grounds to believe that a former employee of Neometals had been involved in disclosing confidential information belonging to SpinTek to DSB in breach of confidence. However, on the evidence, I am not able to and make no finding that Mr Reiche had reasonable grounds to believe or suspect that DSB was involved in unlawful or illegal misappropriation of intellectual property belonging to SpinTek in the design, manufacture or supply of DMF to SAT Austria. I am also not able to make a finding that SAT Austria, in turn, supplied such filters to Primobius, or that Primobius, in turn supplied such filters to the Mercedes-Benz counter-party for the MURG plant. Mr Reiche had signed off on the technical aspects of the DSB filters and, therefore, he could not have been of the view that non-performance of the filters posed a commercial risk to Primobius.

463    Mr Reed gave evidence to the following effect:

24.    This issue was raised with me in the general course of Mr Reiche's roles and responsibilities as a general manager and Head of Recycling. Mr Reiche did not suggest to me that he was raising the concern as a whistleblower, nor did I consider that he was acting as a whistleblower, as it was part of his job to raise such matters.

That evidence was unshaken in cross-examination.

464    As previously mentioned, there was no evidence to the effect that Mr Reiche conveyed that an employee or former employee of Neometals was involved in the ‘reverse engineering’. The concern that Mr Reiche expressed to Mr Reed was, in effect, that Primobius was knowingly concerned in the misuse of confidential and commercially sensitive information and (or) breach of a law relating to intellectual property. That exposed Primobius to the risk of legal liabilities and costs. That, in turn, exposed Neometals to financial risk through its interest in Primobius. The existence of these risks is not obviously misconduct or an improper state of affairs in relation to Neometals within the meaning of s 1317AA(4) of the Act. Nor does the existence of these risks obviously fall within the meaning of inappropriate conduct in the Whistleblower policy.

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

466    Dr Purdie gave evidence that she spoke with various employees shortly after her appointment as COO and, as part of that process, she met with Ms Ivanova. Ms Ivanova made a passing comment about reverse engineering of DMF by a company she thought was owned by Mr Krenn. Dr Purdie understood the information to have been provided to inform her of a potential quality or performance issue with the filters not an intellectual property issue. She did not understand Ms Ivanova to be alleging improper use of intellectual property by SMS or Primobius or that she should investigate the issue. Dr Purdie was cross-examined on this topic at some length, but not challenged on her state of mind following the discussion. She also did not accept that the expression ‘reverse engineering’ necessarily involves illegality. Further, it was not put to Dr Purdie that as a consequence of what Ms Ivanova had said she believed or suspected that Mr Reiche had made, may have made, proposed to make or could make a whistleblower protected disclosure. Dr Purdie’s evidence is that the information came from Ms Ivanova, not Mr Reiche. For completeness, I conclude that nothing that Ms Ivanova said to Dr Purdie resulted in Dr Purdie believing or suspecting that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA with respect to the reverse engineering allegation.

Simulated signature

467    As already mentioned, I have concluded that, after Mr Reed sent his email to Mr Reiche on 11 April 2024 attaching Ms Gray’s email to Mr Reed of 11 May 2023, Mr Reiche no longer had reasonable grounds to suspect that Ms Gray’s signature on the purchase order acceptance had been simulated without her authority. Further, his use of the word ‘forgery’ to describe her signature was not warranted.

468    In Mr Reed’s email to Mr Reiche on 11 April 2024 he conveyed to Mr Reiche his view that it was ‘all in order’. I conclude that, in effect, Mr Reed investigated the information Mr Reiche disclosed to him and formed the view that there was no misconduct in relation to Primobius or Neometals. In these circumstances, I conclude that Mr Reed did not believe or suspect, as a result of Mr Reiche’s assertion of forgery of Ms Gray’s signature, that Mr Reiche had made, may have made, was proposing to make, or could make a disclosure that qualified for protection under Pt 9.4AAA of the Act. I also conclude that after Mr Cole had his discussion with Mr Reed referred to earlier in these reasons, that Mr Cole had no belief or suspicion that Mr Reiche had reasonable grounds for a whistleblower disclosure concerning the forgery allegation.

469    Dr Purdie gave evidence that during her discussion with Ms Ivanova, referred to earlier in these reasons, Ms Ivanova also made a passing comment to the effect that there had been an historical incident involving the forgery of Ms Gray’s signature. Dr Purdie said she took the information that was provided as historical because Ms Gray had left Neometals in 2023 and that she was not being asked to investigate the matter. Dr Purdie was not challenged on her evidence on this subject. However, as with the reverse engineering allegation, there is nothing to connect the information Ms Ivanova disclosed to Dr Purdie to Mr Reiche. I conclude that nothing that Ms Ivanova said to Dr Purdie resulted in Dr Purdie believing or suspecting that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA with respect to the forgery allegation.

Formal whistleblower document

470    I conclude that Mr Smith and Mr Kelsall, as of 9 July 2024, believed or suspected that Mr Reiche may have made a disclosure that qualified for protection under Pt 9.4AAA of the Act.

471    Mr Kelsall gave evidence to the effect that he spoke with Ms Di Virgilio in July 2024 about the Whistleblower policy. He did not disclose to her that there had been a disclosure under that policy. He posed to her a hypothetical question regarding the procedure to be followed if there were such a disclosure. Ms Di Virgilio confirmed that confidentiality was essential. Mr Kelsall later made further enquiries to ascertain if Ms Di Virgilio knew of any organisations that could be engaged to undertake an investigation should one be required. Ms Di Virgilio gave evidence to similar effect. I accept the evidence of both Mr Kelsall and Ms Di Virgilio on this subject.

472    Ms Di Virgilio also gave evidence to the effect that she did not tell anyone of her discussions with Mr Kelsall. However, she said that after Mr Kelsall approached her for the contact details of a person who could carry out an investigation, she suspected that a whistleblower disclosure had been made. She also suspected, if a disclosure had been made, that Mr Reiche was the person who had made it. Her suspicion was based on the forgery allegation. She was not aware of the formal whistleblower document until 26 August 2024. I accept that evidence and conclude that as of late July 2024 Ms Di Virgilio suspected that Mr Reiche had made, may have made, proposed to make or could make a disclosure that qualified for protection under Pt 9.4AAA of the Act in relation to the forgery allegation.

473    Mr Cole, Dr Purdie, Mr Ritchie and Mr Reed all gave evidence to the effect that they were not aware of the formal whistleblower document until they received an email from Mr Reiche’s solicitors on 21 August 2024 attaching a letter from Gillis Delaney Lawyers, the whistleblower document and Mr Smith’s acknowledgement of receipt. Their evidence was unshaken during their cross-examinations. I accept their evidence.

474    During Mr Smith’s cross-examination it was put to him that he had asked for Mr Reiche’s permission at the meeting on 9 July 2024 if he could disclose the whistleblower document to Mr Guthrie. Mr Smith responded: ‘Sorry, that was – I think that was at a subsequent meeting.’ Mr Smith then gave evidence that he and Mr Kelsall discussed with Mr Reiche that it would be appropriate to have some engagement with the board and that, subject to Mr Reiche’s consent, Mr Kelsall and Mr Smith proposed to disclose the letters to Mr Guthrie who was the chair of Neometals’ risk committee. It was put to Mr Smith that did not happen and Mr Smith said ‘Yes, it did.’ It was put to him that he did not engage with Mr Guthrie and he again said ‘Yes, I did’. Mr Smith also said ‘after Christian provided me with his consent to contact Mr Guthrie, I immediately contacted Mr Guthrie and he, Mr Kelsall and I had some discussions’.

475    It was put to Mr Smith, in effect, that Mr Guthrie would give evidence to the effect Mr Guthrie was not aware of the formal whistleblower document until after the board meeting on 21 August 2024. There was then this exchange which I have set out in full because it reveals the ambiguous nature of Mr Smith’s evidence about when he obtained Mr Reiche’s consent to disclose it to Mr Guthrie, when that disclosure took place and when, and in what circumstances, Mr Smith, Mr Kelsall and Mr Guthrie discussed it:

So you would agree, would you, that that directly contradicts your evidence that you contacted Mr Guthrie after the receipt of the whistleblower report dated 9 July and after consent was given by Mr Reiche to provide - to you to do that? Correct?---Yes. I think - I think - - -

Do you agree that directly contradicted, sir?---Yes. I agree.

Would you like to reconsider your evidence that you, in fact, did involve Mr Guthrie in the whistleblower disclosure of 9 July 2024 that you told his Honour a couple of minutes ago? Would you like to reconsider that evidence?---I - I can clearly state that following Christian providing me with consent to disclose the matter to - to - to Les Guthrie, that I arranged a meeting between Chris Kelsall, Les - Les Guthrie and I. At that meeting, we discussed a high-level synopsis of what had happened. I – I didn't - he didn't receive the - I - I - I stand - I don't whether we provided him with a copy of the actual disclosure, but we advised him as to the state of affairs: that we had received this complaint in the form of a whistleblower disclosure from Christian; that Christian was to go away and - and provide us with some evidence that we - upon getting that evidence, we would be able to review all of the issues, whether they be bullying, forgery, whatever, in one - in one go, and we wouldn't get drip-fed information, and that that's - that's where we were, and Les said, "Okay." We were then awaiting the production of information from Christian. I may have seen Les at a board meeting and provided him with a verbal update as to the state of affairs, but that's it.

Right. So about when - what date, doing the best you can, was it that you informed Mr Guthrie about these things, bearing in mind the whistleblower report was dated 9 July 2024?---I - I - I don't know whether - I - I don't think it was - I think what happened was we met - met with Christian on, like, a - whatever the 9th - I will have to check my dates. I think we - he gave me the documents.

I'm not asking you to give an exact date. Was it a week or so or - - -?---He - he gave me the - the - he gave me the documents on, like, a - say, a Monday. I would then have met with him and Mr Kelsall on the Wednesday, and I - I think I had a - I don't think - I'm struggling to remember whether - whether we discussed involving Les Guthrie at our discussions with him or whether I approached him separately in the next couple of days, but certainly on or by that Friday I had engaged with Les Guthrie and - sorry - Chris Kelsall.

Now, I want you to go back to paragraph 43, page 1150?---Yes.

That doesn't say "I didn't see or read any whistleblower report". It says:

I wasn't aware of any alleged whistleblower disclosure being made by Mr Reiche during his employment until after the 21 August board meeting.

?---Yes. Well, you would have to ask Mr Guthrie about that. I didn't draft - - -

So who's telling the truth, sir? You or Mr Guthrie?---I think if you ask Mr Guthrie, he - he will - he - he would probably remember our discussion.

Well, sir, this is a sworn affidavit by the chief risk officer of Neometals; correct?---Sure.

Are you suggesting he could make a mistake about something as fundamental as when he first became aware of the fact that Mr Reiche had made a whistleblowing disclosure during his employment. Are you seriously suggesting that?---What I'm - the - the way I would - the - having read this and - and - and reviewing what happened, what I think is Les either forgot about it or I - all I can assume is he - he didn't - he didn't remember when he made the affidavit. I don't think this is in bad faith - - -

You said you had meetings with him. You said you had a meeting with him?---No. I said I - at a board meeting, I may - we may cross paths and say, "Is there any update?" This is in the context where we're awaiting Christian to provide us with information.

Sir, I suggest you're just making this up as you go along?---I'm not making this up, and I stand by my evidence, and I think, if you talk to Mr Kelsall and Mr Guthrie, that - that issue will be dealt with.

Excuse me, your Honour.

You accept, do you not, that nowhere in your affidavit do you give any evidence of having sought consent of Mr Reiche to involve Mr Guthrie, correct?---Correct.

But indeed, you say in your affidavit that you sought Mr Reiche's consent to involve Mr Kelsall?---Correct.

And you say in your affidavit that Mr Kelsall's involvement was consented to by Mr Reiche?---Correct.

But you say nothing in your affidavit about what you concede today - was that Mr Reiche conceded to the involvement of the chief risk officer, Mr Guthrie, being involved in this matter, correct?---Well - - -

You accept that doesn't appear?---I accept that it doesn't appear, but - - -

And, sir, can you proffer any explanation as to why you would deem it relevant to include the fact that you sought and obtained consent from Mr Kelsall, that consent was given, and you involved him; but not to disclose in your evidence the very same information in respect of the chief risk officer, Mr Guthrie?---Look, it - it wasn't within the scope of the affidavit.

You see, sir, because you appreciate, don't you, that if Mr Guthrie had been involved as the chief risk officer - - -

MR ELLERY: He's not the chief risk officer.

MR O'DOWD: Sorry - as the risk - what's his title? Sorry - chair of the risk committee. I'm indebted to my friend.

That what would, most likely, have happened is that he would have ensured that a proper and full and timely investigation was undertaken into the matters that formed the subject - the matters which were included in the whistleblower disclosure on 9 July 2024?---Well, no, I - I - I disagree. I mean, I - I keep coming back to the same point. As at 9 July, we accepted the - the disclosure by Christian as a - a disclosure. We weren't sure whether he wanted to pursue it in accordance with the way the notice was written or in light of the policies or both. And we also didn't have any supporting evidence. And something - something else is Christian was mentioning other bits and pieces which weren't included in his claim that he wanted to add. And what we wanted to do was to try and have an efficient and effective investigation, and we requested Christian to go back, isolate the issues, identify which document or policy he wanted the - or law he wanted them investigated within, in one go. And that information didn't come back. So what we said to Christian was - and Christian was happy to accept this - - -

476    Mr Guthrie gave evidence to the effect that he was not aware of the whistleblower document until 21 August 2024. That is, Mr Guthrie’s evidence was consistent with the ‘case’ that Mr Reiche’s counsel had put to Mr Smith for the purposes of the rule in Browne v Dunn with the expectation that the Court would be invited to disregard Mr Smith’s evidence and accept Mr Guthrie’s evidence.

477    The cross-examination of Mr Guthrie then proceeded to put a different ‘case’ to Mr Guthrie. The proposition put to Mr Guthrie was that Mr Smith was correct and Mr Guthrie, Mr Kelsall and Mr Smith discussed the whistleblower document at some time shortly after 9 July 2024. That proposition was put to Mr Guthrie repeatedly and he denied that was the case. His evidence that he first became aware of the 9 July letters on 21 August 2024 remained unshaken. Mr Reiche then invited the Court to prefer Mr Smith’s evidence to that of Mr Guthrie.

478    Mr Guthrie said during his cross-examination that he first became aware that Mr Reiche had made or may have made a whistleblower disclosure during a taxi ride after the board meeting on 21 August 2024 when Mr Smith called him to discuss it. After receiving the email attaching copies of the whistleblower document, he had a further conversation with Mr Smith on 21 August 2024.

479    Mr Kelsall was not cross-examined at any length about the topic. He said that he could not recall participating in any discussion with Mr Guthrie. He could not recall speaking to Mr Guthrie explicitly about the whistleblower document at any time up to and including 20 August 2024. Mr Kelsall was asked if he was saying it did not happen or if he could not recall. His evidence was to the effect that he could not recall. However, earlier in his evidence he had said, while he could not recall participating in a conversation with Mr Guthrie, it was: ‘Certainly not in July.’

480    The ASIC historical company extract for Neometals records Mr Guthrie’s residential address as a location in Victoria. He gave his evidence via video link from the District Registry of the Federal Court in Melbourne. The effect of Mr Smith’s evidence was that he had a meeting with Mr Guthrie and Mr Kelsall. His evidence did not indicate if the meeting was in person or via video. He later denied having a meeting with Mr Guthrie and said he may have run into him at a board meeting. That subject was not explored further in his cross-examination, nor was it explored in the cross-examination of Mr Kelsall or Mr Guthrie. There is other evidence to the effect that Neometals board meetings were held on 27 June and 1 and 21 August 2024 in Western Australia. The minutes of these meetings record Mr Guthrie’s attendance in person on 27 June 2024 and via Teams on 1 and 21 August 2024.

481    While the minutes record Mr Guthrie’s attendance in person on 27 June and via Teams on 1 and 21 August 2024, these are extracts of the minutes. Minutes signed as a true and accurate record of the proceedings were not tendered. Mr Guthrie gave evidence that he spoke with Mr Smith on the telephone about Mr Reiche’s whistleblower disclosure while he was travelling between Wangara and the Perth CBD in a taxi. That is, Mr Guthrie gave direct evidence that he was in Perth on 21 August 2024. That suggests he attended the board meeting in person on 21 August 2024. There was no direct evidence concerning whether or not Mr Guthrie attended the board meeting on 1 August 2024 in person.

482    Mr Reiche’s evidence-in-chief made no mention of giving consent to Mr Smith and Mr Kelsall to disclose the whistleblower document to Mr Guthrie. No such consent is recorded in the minutes prepared for the meetings on 9 and 11 July 2024. Mr Reiche also gave evidence that he was not able to follow up with Mr Smith and Mr Kelsall, in effect, until the meeting on 19 August 2024. However, during his cross-examination Mr Reiche volunteered that Mr Smith had asked him for consent to share the whistleblower disclosure with Mr Guthrie and Mr Reiche gave that consent. The timing of that consent is not clear from Mr Reiche’s evidence as the question related to Mr Reiche’s email of 17 August and the meeting of 19 August 2024, but his answer dealt with the lack of follow up between 11 July and 19 August 2024. His answer suggests that it was before 19 August 2024, but the matter was not clarified in the remaining cross-examination or in re-examination.

483    I consider it unlikely that Mr Reiche gave Mr Smith and (or) Mr Kelsall consent to disclose the 9 July letters to Mr Guthrie at a meeting involving Mr Reiche on 9 or 11 July 2024. I also consider it unlikely that Mr Reiche provided Mr Smith with that consent in a separate meeting or discussion in July. Mr Reiche’s evidence, which I have accepted, was to the effect that he was not able to speak with Mr Smith or Mr Kelsall about the 9 July letter after 11 July until 19 August 2024.

484    I have already accepted that Mr Reiche, Mr Smith and Mr Kelsall agreed on 11 July 2024 that Mr Reiche would consider if he wanted to proceed with a disclosure under the Whistleblower policy or, at least in part, under another Neometals policy and that he would provide further information and evidence in support of the assertions made in the 9 July letter. In those circumstances, I consider it unlikely that Mr Smith or Mr Kelsall would have sought Mr Reiche’s consent to the involvement of Mr Guthrie until Mr Reiche had clarified how he wanted to proceed and had provided the requested further information and evidence. Mr Reiche provided the clarification, information and evidence on 21 August 2024. That is the day that Mr Guthrie said Mr Smith contacted him.

485    I prefer the evidence of Mr Guthrie to that of Mr Smith on this topic. For the reasons already given, while Mr Reiche’s evidence may support Mr Smith’s version of events to some degree, it is too ambiguous regarding the timing of the grant of that consent to be relied upon as corroborating Mr Smith’s account of events. Mr Smith’s evidence is also somewhat ambiguous regarding the timing of his conversation with Mr Guthrie. Therefore, the evidence of Mr Smith and Mr Reiche stand in contrast to Mr Guthrie’s clear and unequivocal statements that he was unaware of the Mr Reiche’s whistleblower disclosures until 21 August 2024. Mr Guthrie’s evidence is also more consistent with and fits more neatly with the balance of the evidence to which I have referred. In my view, Mr Smith was mistaken as to the timing of his discussions with Mr Guthrie.

486    I conclude that Mr Reiche gave his consent to Mr Smith contacting Mr Guthrie at some time before 21 August 2024. After Mr Reiche provided confirmation of the nature of his whistleblower disclosure and further evidence and information, Mr Smith telephoned Mr Guthrie and revealed to him the existence of the formal whistleblower document and the steps that he and Mr Kelsall had taken up to that point in time.

487    It follows that I conclude that none of Mr Cole, Dr Purdie, Mr Guthrie, Mr Ritchie or Mr Reed believed or suspected that Mr Reiche had made, may have made, proposed to make or could have made a disclosure that qualified for protection under Pt 9.4AAA of the Act, regarding any of the matters referred to in his 9 July letter until after the board meeting on 21 August 2024.

Findings concerning reasons for detrimental conduct

Reasons for redundancy decision

488    Although I have concluded that the decision to make the role of head of recycling redundant was made by resolution of the Neometals board on 21 August 2024 and none of the members of the board believed or suspected at the time of that decision that Mr Reiche had made, may have made, proposed to make or could have made a disclosure that qualified for protection under Pt 9.4AAA of the Act, it remains necessary to consider the reasons for making Mr Reiche’s role redundant. First, Dr Purdie, Mr Kelsall and Ms Di Virgilio were involved in the preparation of board papers that influenced the decision of the board to approve the restructure plan. Therefore, the conduct of Dr Purdie, Ms Di Virgilio and (or) Mr Kelsall may have caused detriment to Mr Reiche through that influence. Although I have already concluded that Dr Purdie did not believe or suspect Mr Reiche had made, may have made, proposed to make or could make a whistleblower disclosure at that time, Mr Kelsall knew and Ms Di Virgilio suspected, that Mr Reiche had made a whistleblower disclosure before or around the time the board papers that identified Mr Reiche’s role for redundancy were prepared. Second, the board’s reasons have a bearing on the reasons for the subsequent conduct resulting in termination of Mr Reiche’s employment with immediate effect.

489    I conclude that neither Mr Kelsall nor Ms Di Virgilio were motivated by belief or suspicion of whistleblower disclosure to recommend that Mr Reiche’s role be made redundant. I have already concluded that Mr Kelsall and Ms Di Virgilio had decided that Mr Reiche’s role should be considered for redundancy before Mr Kelsall was aware of the 9 July letter and before Ms Di Virgilio suspected that Mr Reiche may have made a whistleblower disclosure. Mr Kelsall had limited involvement in the preparation of the board papers. His main concern was the financial aspect and to accelerate the restructure and compress it into one phase. Ms Di Virgilio recorded her reasons for recommending the restructure, in general, and that Mr Reiche’s role be made redundant, in particular, in the board papers dated 26 July and 16 August 2024. I have no reason to doubt that the reasons recorded in the paper were Ms Di Virgilio’s genuinely held reasons. Ms Di Virgilio also had concerns about Mr Reiche’s performance. I have already found that she had grounds for having those concerns. Ms Di Virgilio also took into account Dr Purdie’s concerns about Mr Reiche’s performance and his suitability for the head of recycling role. These performance concerns were not related to Mr Reiche raising the strategic risks or allegations of reverse engineering or forgery. Moreover, Ms Di Virgilio had no apparent motive or reason to recommend Mr Reiche’s role for redundancy in connection with her suspicion that he had made a whistleblower disclosure relating to an allegation that Mr Krenn had forged the signature of Ms Gray on a document.

490    I also conclude for the reasons that follow that none of the strategic risks Mr Reiche identified in presentations to the board, the reverse engineering allegation or the forgery allegation was the reason or part of the reason for any member of the board voting in favour of the resolution to approve the restructure plan including making the role of head of recycling redundant.

491    Dr Purdie gave evidence that she attended the board meeting on 21 August 2024 and Ms Di Virgilio presented her 16 August 2024 board paper. That paper was largely the same as the 26 July 2024 board paper. Consistently with Dr Purdie’s agreement to do so, the 16 August board paper noted that the limited remaining responsibilities of the head of recycling role would be transferred to the COO role and other responsibilities would be distributed to other roles. She gave evidence to the effect that her actions relating to Mr Reiche were driven by her concerns about his performance and his ability to fulfil the accountabilities of his role, and more broadly the need to support an organisational restructure to reduce costs and conserve cash for Neometals. She confirmed that those were her reasons in her cross-examination. She was adamant that Mr Reiche’s complaints about Mr Krenn played no part in her decision. I accept Dr Purdie’s evidence.

492    Mr Reed gave the following evidence:

48.    In approving this restructure, I only took into consideration the matters raised in the 16 August 2024 Board paper. Based on the paper, it appeared to me that the Head of Recycling role was not a required full-time position, because the paper contemplated the commencement of a new hydrometallurgy hire, Mr Jurgen Gnoinski, who was employed to lead Mr Reiche's technical team, and that Dr Purdie would move from a 0.6 to 0.8 fulltime position to take on some of the duties formerly associated with the Head of Recycling role, in addition to her existing duties, including joining the Primobius Management Board.

493    During Mr Reed’s cross-examination the following exchange took place after, in substance, Mr Reed had not accepted that any of the matters Mr Reiche had raised with the board were of a whistleblowing character.

Yes. But the problem was, Mr Reiche continued to raise these matters with the board; correct? He continued to raise them? And that created a problem, as I set out to you before, when I told you what Dr Purdie said about his continual presence in the organisation impeding the collaborative enterprise, or words to that effect; correct? Because he was continuing to do that, that was causing these problems; correct?---It’s her testimony.

Yes. And you don’t disagree with that, do you? The fact that he was the only one calling out these activities, these behaviours was – what was the real - - -?--- -It may be more behavioural than the issues that you raise.

Well, but it wasn’t. It was purely because he was continuing to call these matters out, and you were afraid that was going to aggravate the joint venture partners?---We – we – like I said, we’ve raised and dealt with under the appropriate structures, and we continue to do that. I’m on a plane tomorrow night to go and see him for a couple of days. We – we sit down, and we go through this. We don’t live in isolation. We’ve had a number of joint ventures.

But because Mr Reiche kept calling these activities, these behaviours, out, it was considered that his continuation in his role was not tenable for the joint venture; correct? At least, that’s part of the reasons?---Look, the broken record could have been part of the reasons.

494    I do not take that evidence to be a concession that the strategic risks and (or) conflict of interest Mr Reiche raised at board meetings was part of the reason for the decision to make his role redundant. Taken as a whole, the effect of Mr Reed’s evidence was that Mr Reiche’s continual raising of the same issues ‘could have been part of the reasons’ that Mr Reiche was not considered suitable for the role. That is, that Mr Reiche’s inability to accept the board’s view (collectively) on matters involving strategic or commercial judgment could have been part of the reasons. In any event, it is not a definitive concession. Mr Reed uses the conditional ‘could have’. Neither the question nor the answer is directed to Mr Reed’s reasoning or state of mind. That something ‘could have’ been part of the reasons does not mean that it was part of the reasons. It is conjecture.

495    Mr Cole gave the following evidence regarding his decision to vote in favour of the organisational restructure:

93.    The Board voted on and approved the proposal as set out in the memorandum. When I made the decision to approve the proposal as part of my role on the Board, I did so for the reasons that Neometals needed to conserve cash, the work required on several of its main business units had materially diminished and with respect to the redundancy of the head of recycling role, having due regard to the considered analysis and recommendations made in the memorandum.

94.    A decision to implement a restructure and make redundancies had been extensively socialised and discussed generally by the Board over the preceding months. It was a strategy that had evolved, developed and matured and was ready for execution at this point in time. I had duly considered the matter and the associated management memoranda and the discussions at the meeting itself were not extensive as I was familiar with what was being proposed and its implications for the business. At the same time such decisions are not easily taken and due care and consideration was applied.

95.    The Board determined to endorse the recommendations in the memorandum and resolved to approve execution of the restructure plan, including the proposed redundancies, as stipulated in the minutes of this meeting.

Mr Cole was not challenged on that evidence and I accept it.

496    Mr Guthrie gave evidence to the effect that the decision on 21 August 2024 was a unanimous decision to reduce costs. That evidence was not challenged.

497    Mr Ritchie gave evidence to the effect that the decision to make Mr Reiche’s role redundant ultimately came down to the prioritisation of the number of people in the organisation. Mr Ritchie believed that there was a need to put someone into the Primobius project who really understood project management across the board and had slightly better relationship management skills. His view was that Dr Purdie was well-suited for that function and better suited than Mr Reiche based on the information he had received as a director about Mr Reiche’s relationship with SMS. During Mr Ritchie’s cross-examination there was the following exchange.

Now, the decision to make Mr Reiche’s role redundant was formally made on 21 August at that board meeting. Do you recall that?---I broadly recall it. I don’t recall specifically.

And at that time, you were aware of the fact that Mr Reiche had been, at least in the period first six months of 2024, making these, what you call allegations, these disclosures about Mr Krenn and SMS and the joint venture that we’ve been through earlier in your cross-examination. Correct?---I’ve already said that, yes.

So that was squarely – it was in your mind. Wasn’t it?---No.

You knew about it?---Yes, but you’re raising it in the context of a redundancy.

I’m just asking you what’s in your mind?---Well, I recall, yes.

And specifically in that document, which was adopted by you and the rest of the board, there was a notation that Mr Reiche would be placed on gardening leave due to joint venture sensitivities. Correct?---Yes.

And everybody else on that list had been provided the opportunity to work out their notice period. You understand that. Don’t you?---Broadly I recall that, yes.

And Mr Reiche’s role was singled out due to joint venture sensitivities. Correct?---Due to joint venture sensitivities, yes.

And those sensitivities arose from the fact that Mr Reiche was, had and continued to make these disclosures about the joint venture, Mr Krenn, and matters he considered to be an improper state of affairs in relation to Neometals. Correct?---Well, I – I think there was a whole series of relationship issues. Maybe they were some of them.

Yes. That was part of it, at least, wasn’t it?---Could well have been.

498    I do not consider the concession that Mr Ritchie made in the last line of questioning to be of any real moment. It is not definitive. He uses the conditional ‘could well have been’. Mr Ritchie does not attribute the reason to himself. Further, his focus is ‘a whole series of relationship issues’. That is, there were a whole series of issues concerning Mr Reiche’s relationship with Mr Krenn (and Dr Siemon) and others that contributed to the decision.

499    I accept the evidence of Dr Purdie, Mr Reed, Mr Cole, Mr Guthrie and Mr Ritchie regarding each of their reasons given in their evidence-in-chief for voting in favour of the resolution to approve the restructure of Neometals including making the role of head of recycling redundant. Based on that evidence I conclude that a belief or suspicion that Mr Reiche had made, may have made, proposed to make, or could make a protected disclosure was not the reason or part of the reason for their respective decisions to vote in favour of the resolution to make his role redundant. Nor was the fact that he had raised the strategic risks and conflict of interest referred to earlier in these reasons the reason or part of the reason for that decision.

Reasons for termination decision

500    The decision to terminate Mr Reiche’s employment flowed from the board’s resolution to implement the restructure and make his role redundant. I accept Mr Reed’s evidence to the effect that the reason he decided to terminate Mr Reiche’s employment with immediate effect on 4 September 2024 was because he accepted Ms Di Virgilio’s recommendation to do so.

501    Ms Di Virgilio said that she made a decision to terminate Mr Reiche’s employment with immediate effect on 2 September 2024 because Mr Reiche had not engaged with Neometals to discuss continuing employment in another role and there was little prospect of any engagement with Mr Reiche in the future. I have no reason to doubt and accept Ms Di Virgilio’s evidence of her reasons, even though she was aware of the whistleblower document at the time of her decision. Also, while at the time Mr Reed made that decision he was aware of the whistleblower document and Mr Reiche’s assertions and allegations, I conclude that Mr Reed’s knowledge of those matters had no influence on his decision to terminate Mr Reiche’s employment.

502    The restructure plan the board resolved to approve on 21 August 2024 implicitly, if not explicitly, contemplated that Mr Reiche’s contract of employment would be terminated if a suitable alternative role within Neometals could not be identified and mutual agreement reached on the role and terms of any continuing employment. The restructure plan refers to placing Mr Reiche on ‘gardening leave’ for the duration of the notice period under his contract of employment. Therefore, the decision to terminate Mr Reiche’s employment flowed naturally from the board’s decision to make his role redundant and Ms Di Virgilio’s inability to discuss with Mr Reiche any possible redeployment within Neometals. Accordingly, there is no reason to consider or infer, contrary to the direct evidence of Mr Reed and Ms Di Virgilio, that knowledge of the formal whistleblower document had any bearing on the decision to terminate Mr Reiche’s employment.

503    However, the decision to terminate Mr Reiche’s employment with immediate effect and not place him on gardening leave during the contractual notice period is not contemplated by the restructure plan and does not flow directly from the decision to approve that plan. That decision was evidently made within the express or implied authority of Mr Reed as CEO charged with implementing the restructure plan and for reasons that were separate from the reasons to approve that plan.

504    The effect of Ms Di Virgilio’s evidence was that she made a number of attempts to engage with Mr Reiche regarding his redundancy. She was not able to do so and was made aware that Mr Reiche claimed an inability to consult due to his medical condition. Mr Reiche appeared to suggest that termination of his employment in such circumstances was unjustified or, at least, harsh. Further, Mr Reiche appears to submit, in any event, that termination with immediate effect was unjustified, vindictive and made knowing and intending that it would have a negative impact on his visa status. In that context, Mr Reiche submits it is to be inferred that the decision to terminate with immediate effect was made because of the formal whistleblower document.

505    There is nothing to suggest that an inability to consult, whether or not for medical reasons, renders the decision to terminate Mr Reiche’s employment unjustified. Absence of engagement, whether or not for medical reasons, provides a logical and rational basis for bringing the relationship of employer and employee to an end with immediate effect rather than extending it for the duration of the contractual notice period. Working through a notice period, whether or not an employee continues to attend work or is not required to attend and perform work, requires a continuing relationship, communication and co-operation between employer and employee. If an employee is unwilling or unable to communicate with the employer so as to establish the ‘ground rules’ for the notice period it stands to reason that an employer may consider that termination with immediate effect is appropriate. Further, as already mentioned, aside from commencing time running on the visa condition, there were advantages to Mr Reiche resulting from the immediate termination of his employment. Therefore, I do not infer that the only explanation or any explanation for the decision to terminate with immediate effect was a desire to harm Mr Reiche’s visa prospects or that the explanation provided is implausible.

506    Although Mr Reed may have had some awareness and Ms Di Virgilio was aware of the effect of immediate termination on Mr Reiche’s Subclass 482 visa, there was no evidence that the decision to terminate Mr Reiche’s employment with immediate effect was motivated by any desire to harm his visa status or without regard to the potential impact it could have on his visa status. The decision to terminate his contract of employment with immediate effect undoubtedly had a negative effect on Mr Reiche’s visa status, but he had 180 days within which to secure employment from another sponsor. A period of 180 days appears to be a reasonable period of time within which to secure such employment. Therefore, it is also inherently unlikely that foreshortening the period from practically 270 days to 180 days was motivated by a desire to prevent or make it more difficult for Mr Reiche to satisfy the conditions of his visa.

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

Reasons for rejection of TIL claim

508    I have concluded that neither Dr Purdie nor Mr Reed had formed a belief or suspicion that Mr Reiche had made, may have made, proposed to make or could have made a disclosure that qualified for protection under Pt 9.4AAA of the Act until shortly after the board meeting on 21 August 2024.

509    While I am not able to conclude that Dr Purdie rejected the TIL claim before she believed that Mr Reiche had made or may have made a qualifying disclosure, based on the facts set out in paragraphs [411] to [421] of these reasons, I conclude that Dr Purdie rejected or did not approve Mr Reiche’s claim for TIL for 1,118 hours because she thought the claim was made in error as a claim had already been made and approved for the period between October 2023 and June 2024 and was for excessive hours for which there was no foundation. That was not an arbitrary, capricious or unreasonable reason for rejecting the claim even though it was not factually accurate that the claim had been made in error and was not submitted with supporting documentation. In my view, the rejection of the claim was not a detriment within the meaning of s 1317AD. Further, and in any event, I conclude that the belief that Mr Reiche had made or could have made a qualifying disclosure was not the reason or part of the reason for her decision.

510    At the time Mr Reed affirmed the decision to reject or not approve Mr Reiche’s TIL claim he believed that Mr Reiche had made or may have made a qualifying disclosure. Nonetheless, based on the facts set out in paragraphs [411] to [421] of these reasons, I conclude that Mr Reed affirmed the rejection and non-approval of Mr Reiche’s claim for TIL because he thought it was excessive, it was not related to travel, and Mr Reiche had already made a claim for TIL for the relevant period which had been approved. That was not an arbitrary, capricious or unreasonable decision. It was within the C-suite discretion of the TIL document. Further, I conclude that the belief that Mr Reiche had made or could have made a qualifying disclosure was not a reason for his decision. At that time the decision to terminate Mr Reiche’s employment had been made and implemented. For the reasons already given, I have also concluded that the decision to terminate his employment was not made wholly or in part because Mr Reed believed Mr Reiche had made or may have made a qualifying disclosure.

Disposition

511    Mr Reiche discharged his onus of adducing or pointing to evidence that suggested a reasonable possibility that Neometals engaged in conduct that caused detriment to Mr Reiche in that Neometals made the role of head of recycling redundant on 21 August 2024, terminated his employment with immediate effect on 4 September 2024 and rejected his TIL claim. Mr Reiche failed to demonstrate a reasonable possibility that Neometals engaged in conduct that caused him detriment in the form of bullying or harassment.

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

513    Having regard to the conclusions that I have reached, it is unnecessary to consider the issues raised in the proceeding concerning compensation, reinstatement and the other relief Mr Reiche claimed. Mr Reiche’s claim must be dismissed.

Non-publication of identity of non-parties

514    Neometals requested that these reasons not include the identity of certain non-parties. Neometals submits that there are indirect negative allegations relating to certain non-parties and it would be prejudicial to them to publish their names in circumstances in which the allegations form part of the context in the proceeding but will not be resolved in the proceeding and the non-parties have no ability to defend themselves against the allegations. Further, the identity of the non-parties is not material or relevant to the nature of the allegations made. Neometals submits that publication of the names of the non-parties is not germane to securing the objective of open justice and identification of them would infringe their privacy and confidentiality for no legitimate purpose.

515    Neometals had made an interlocutory application for suppression and (or) non-publication of Mr Reiche’s concise statement and affidavit sworn 13 September 2024 under s 37AF and s 37AG of the Federal Court Act 1976 (Cth). That application was abandoned on the first day of the trial. Accordingly, evidence identifying the non-parties was heard in open court. In substance, Neometals requests the Court not to publish the identity of non-parties mentioned in pleadings, submissions and evidence that was heard and disclosed in open court. Non-publication of the names of the non-parties in the reasons is tantamount to a non-publication order under s 37AF and s 37AG. In my view, the same principles are applicable to Neometals’ request for non-publication of the identity of the non-parties as those that would apply to a non-publication and (or) suppression order. The only possible ground upon which the Court could make a non-publication or suppression order in respect of the names of the non-parties is that such an order is necessary to prevent prejudice to the proper administration of justice.

516    I accept that the issues and evidence in the proceeding raise negative allegations, particularly in relation to Mr Krenn, Mr Farghaly, Mr Wagner and DSB. I also accept that there is a degree of prejudice to the non-parties about whom negative allegations have been made because they have not had an opportunity to refute the allegations. Further, to an extent, the evidence discloses confidential information of SpinTek that may, or may not, be commercially sensitive. The evidence also discloses aspects of the commercial arrangements between Primobius, Mercedes-Benz, SMS, SAT Austria and Neometals that may, or may not, be confidential and commercially sensitive. However, none of these matters render non-publication of their names in the reasons for decision necessary to prevent prejudice to the proper administration of justice: see, Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 at [4]-[9] (Allsop CJ, Wigney and Abraham JJ) and the authorities there cited. As the reasons have made clear, on the evidence adduced in the proceeding, the reverse engineering allegation was unsubstantiated and there were no reasonable grounds for maintaining the forgery allegation. Members of the public reading these reasons and the documents filed in the Court can be taken to understand that the allegations are untested and amount to unsubstantiated assertion. Taking that into account, any remaining prejudice, embarrassment or tarnishing of reputation of non-parties is part of the ‘price of open justice’: Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 at [54] (Bathurst CJ and McColl JA); Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 at [24], [28] (Rares J); Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 at [185]-[200] (Wigney J).

517    It follows that I have not acceded to Neometals’ request not to publish reasons that identify various non-parties. Further, an earlier order made restricting inspection of Mr Reiche’s concise statement should be discharged. Nonetheless, given the nature of the request and that it is refused, publication of these reasons, other than to the parties, will be deferred for seven days.

Costs

518    Section 1317AH of the Act provides that a claimant may only be ordered to pay costs if the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause, or if the court is satisfied that the claimant’s unreasonable act or omission caused the other party to incur costs.

519    The parties have not made submissions on the operation of s 1317AH in this case. There were parts of the cross-examination of Mr Reiche and Neometals’ submissions that were aimed at suggesting that the formal whistleblower document was not genuine and was prepared for the purpose of attempting to provide him with protection against the outcome of Neometals’ restructuring process. I have made no findings regarding that matter because it was not relevant or necessary to do so to reach the conclusion that Mr Reiche’s claim was not made out. Nonetheless, I will afford the parties an opportunity to agree or make submissions regarding the extent to which the discretion to order costs against Mr Reiche under s 1317AH has been enlivened in this proceeding and, if so, what, if any, cost order should be made.

Associate:

Dated:    28 February 2025

Federal Court of Australia                         No: NSD 1273 of 2024

District Registry: Western Australia

Division: Fair Work                             

CHRISTIAN GERHARD REICHE

Applicant

NEOMETALS LTD (ABN 89 099 116 631)

Respondent

JUDGE:    Justice Feutrill

DATE OF ORDER:    10 December 2024

WHERE MADE:    Perth