Federal Court of Australia

Gillham v Melbourne Symphony Orchestra Pty Ltd (No 2) [2025] FCA 1355

ORDERS

THE COURT NOTES THAT:

A.    On 14 October 2025, the Court made orders vacating the trial in this proceeding listed to commence on 1 December 2025, adjourning the trial to a date to be fixed in 2026 on an estimate of 3 weeks, and reserving the Applicant’s costs of the First and Fourth Respondents’ application to vacate the trial.

B.    On 10 September 2025, the First and Fourth Respondents filed an interlocutory application seeking orders relating to the length of the trial estimate and the dates for which it was fixed, various orders relating to redaction and suppression/non-publication, and orders providing for witnesses to give evidence via video link.

C.    On 1 October 2025, the Applicant filed an interlocutory application seeking orders for a witness to give evidence via video link. By amended interlocutory application dated 9 October 2025, orders were sought in relation to two more witnesses.

D.    On 13 October 2025, the respondent filed an interlocutory application seeking leave for service out of subpoenas and an order for substituted service.

THE COURT ORDERS THAT:

Trial estimate and listing

1.    Subject to further order, the proceeding be listed for trial on 18 May 2026 with an estimate of 3 weeks.

First and Fourth Respondents’ interlocutory application

2.    The First and Fourth Respondents’ interlocutory application dated 10 September 2025 otherwise be dismissed.

Applicant’s amended interlocutory application

3.    The Applicant’s amended interlocutory application dated 9 October 2025 be dismissed.

First Respondent’s subpoena application

4.    The First Respondent is directed to serve its interlocutory application dated 13 October 2025, the affidavit of Mr Leon Zwier dated 13 October 2025, and its submissions on the application dated 13 October 2025 on Dr Sophie Galaise and Mr Andrew Moore.

5.    Leave is granted to effect service of the above material on Dr Galaise through her legal representative Mr Joel Zyngier of Gilchrist Connell pursuant to r 10.24 of the Federal Court Rules 2011 (Cth).

6.    The interlocutory application referred to in order 4 will be heard on a date to be fixed in consultation with the parties.

Further witness outlines

7.    On a date to be fixed by agreement between the parties, and failing agreement by National Judicial Registrar Edwards, the First Respondent is to file and serve amended witness outlines for the following witnesses:

(a)    Margaret Jackson AC;

(b)    Diane Jameson OAM;

(c)    the Hon. Martin Foley;

(d)    Edgar Myer;

(e)    Andrew Moore;

(f)    Guy Ross;

(g)    Suzanne Dembo;

(h)    Dylan Stewart; and

(i)    Jayde Walker.

8.    In addition to any other summaries of topics about which the witness will give evidence, the further witness outlines are to summarise, in a manner consistent with these reasons, the evidence each witness will give in relation to their recollection of:

(a)    The Board meeting on 12 August 2024;

(b)    The MSO Board Working Group (as defined in the relevant witness outlines) meeting on 14 August 2024; and

(c)    The preparation of the Final Public Statement (as defined in the relevant witness outlines).

Timetabling

9.    Orders 12 to 16 of the Orders of National Judicial Registrar Edwards of 12 June 2025 are vacated.

10.    The proceeding be referred for case management to National Judicial Registrar Edwards for settling of a revised trial timetable.

Reallocation

11.    The proceeding be referred to the National Operations Registrar for the purposes of reallocation.

Costs

12.    Except to the extent provided by the orders of the Court of 14 October 2025, there be no order as to the costs of the interlocutory applications.

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    The Court heard two interlocutory applications in this proceeding on 14 October 2025. Some orders were made on that date, including a vacation of the trial date this proceeding was otherwise listed for, being 1 December 2025. It was apparent that listing, which was only for a period of five days, would be inadequate to allow the parties a reasonable opportunity to present their cases.

2    Some consequential orders were made, providing for a trial listing on a date to be fixed in 2026. After inquiries during the hearing of the parties, and consideration of what their counsel said about various availability, it became apparent that the proceeding could not be listed for trial before May 2026. The Court’s approach proceeds on that basis, and orders are made today fixing the trial for 18 May to 5 June 2026. Those dates are fixed because upon further consultation with the parties after the 14 October 2025 hearing it became apparent that their mutual availabilities were extremely limited. Chambers therefore requested that the parties reserve the dates they had indicated were mutually available dates.

3    The vacation of the trial date means there will need to be some consequential orders, which are made today. Some matters initially in dispute on the interlocutory applications were resolved during the hearing, in ways which I respectfully observe were pragmatic and sensible, and the Court commends the parties and their legal representatives for the responsible approach they demonstrated in reaching satisfactory compromise positions.

4    There are also some discrete matters upon which the Court needed some time to reflect.

5    These reasons explain both the orders made on 14 October, and the orders made today. They do so in relatively summary form because, as I said to the parties on 14 October, a reading of the transcript will also indicate the Court’s reasoning on some of these matters.

Chronology

6    The First and Fourth Respondents’ interlocutory application was lodged on 10 September 2025 and accepted for filing on 12 September 2025. An affidavit of Leon Zwier dated 10 September 2025 was read in support of the application.

7    The Respondents’ interlocutory application sought three sets of orders:

(a)    Orders relating to the length of the trial estimate and the dates at which the trial is fixed;

(b)    Orders relating to redaction and suppression/non-publication of certain information contained in documents subject to discovery; and

(c)    Orders permitting at least two witnesses to give evidence at trial by way of video link, and related orders.

8    The trial of this matter was listed for 1 December 2025, on an estimate of 5 days, pursuant to order 17 of the Orders of National Judicial Registrar Edwards in these proceedings dated 12 June 2025.

9    The First and Fourth Respondents sought that the estimate of the trial be revised upwards to 15 days, for the reasons set out in the affidavit of Leon Zwier. The Applicant’s position (as set out in an affidavit of Michael Bradley dated 2 October 2025, in particular by reference to a consideration of which witnesses the respondents might really need to call) tended to suggest that the 5 day estimate might have been sufficient.

10    The Applicant has also filed an interlocutory application, lodged 2 October 2025 and accepted for filing on 7 October 2025. An amended application was lodged on 9 October 2025. By that amended application, he sought an order that a witness, Dr Samuel Cairnduff, be permitted to appear by video link pursuant to s 50 of the Trans-Tasman Proceedings Act 2010 (Cth), and that two further witnesses, Mr Morgan Hayes and Dr Angus McPherson, be able to give evidence by video link from the United Kingdom.

11    The First and Fourth Respondents also filed a further interlocutory application on 13 October 2025, seeking leave to issue subpoenas overseas. This application was supported by an affidavit of Leon Zwier dated 13 October 2025. This interlocutory application was listed for mention but has some relevance to matters on which findings are made in these reasons, and I return to it below.

The likely length of the trial

12    I indicated to the parties at the hearing of the interlocutory applications that it was apparent from the evidence filed on behalf of the First and Fourth Respondents that the current trial listing would be insufficient. The trial is, in accordance with the Employment & Industrial Relations practice note, to be conducted by way of oral evidence. The assessment of witnesses is critical in a proceeding such as this. That assessment is generally better able to be made by the Court through the hearing and testing of oral evidence than through affidavits which have been prepared with the assistance of legal representatives, and over generally lengthy periods of time, with many revisions. The task of the Court is to assess what evidence is the most reliable, and generally in a case dealing with a contested narrative of events over a short period of time, and with the reasons certain individuals made decisions and how those decisions were made, this is better undertaken through an assessment of oral testimony.

13    As I indicated to the parties during the hearing, the Court is also conscious of the existence of a reverse onus imposed by s 361 of the Fair Work Act 2009 (Cth) on the First and Fourth Respondents in relation to Mr Gillham’s four central allegations of adverse action, namely:

(a)    The decision to cancel Mr Gillham’s performance at the Concert on 15 August 2024;

(b)    The issuing of the cancellation message explaining why the Melbourne Symphony Orchestra had cancelled the Concert;

(c)    During negotiations about the potential reinstatement of a second performance, the imposition of a condition on Mr Gillham that he not make any statements during the performance; and

(d)    The publication of a statement by the MSO, and not one that during negotiations Mr Gillham had agreed to, explaining why the 15 August Concert would not proceed.

14    Broadly, s 361 of the FW Act requires that the First and Fourth Respondents prove that the reason for each of the alleged pieces of adverse action was not (relevantly here to how Mr Gillham expresses his claims) Mr Gillham’s expression of political opinion through the statement he made during the Recital on 11 August 2024.

15    As the First and Fourth Respondents contend, the effect of that provision presents a forensic decision for respondents about how they will seek to discharge that onus. As I made clear during the hearing, the Court should not interfere with that forensic choice. Assertions about probative value (cf the affidavit of Mr Bradley for Mr Gillham at [12]-[20]) are not matters for another party at this stage of the proceeding, especially in the context of s 361. How the Court assesses the true reasons for conduct and decisions can be a matter of significant nuance, and, within the bounds of reasonableness and fairness, each party is entitled to their forensic choices about how to present their evidentiary case.

16    It is as well to recall what the parties agree Mr Gillham said at the Recital on 11 August (see Further Amended Statement of Claim at [16] and Amended Joint Defence at [16]):

“Over the last 10 months, Israel has killed more than one hundred Palestinian journalists. A number of these have been targeted assassinations of prominent journalists as they were travelling in marked press vehicles or wearing their press jackets. The killing of journalists is a war crime in international law, and it is done in an effort to prevent the documentation and broadcasting of war crimes to the world.

In addition to the role of journalists who bear witness, the word Witness in Arabic is Shaheed, which also means Martyr.”

17    Mr Gillham’s statement from the stage could generally be described as having a political character; and indeed that is the pleaded case: see [17] of the FASoC. Its political character was also identified by the MSO in its cancellation message where what Mr Gillham said was described by the MSO as his “personal political views”.

18    The First and Fourth Respondents’ case is that the adverse action (if established, which they contest) occurred for the reason that the MSO had not authorised the making of any statement by Mr Gillham, and because of safety concerns associated with the Concert.

19    As the Court’s reasons in Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 make clear, the First and Fourth Respondents have a number of legal arguments by which they seek to defeat Mr Gillham’s claims, and which are separate from the factual dispute over the true reasons for the four events set out at [13] above. Mr Gillham successfully resisted the strike out application, but the standard to be met for success on a strikeout application is very different to that required for success at trial on the legal issues, which are novel and complex. These reasons should not be understood as diminishing the task Mr Gillham will face on some of the legal issues raised by the First and Fourth Respondents.

20    Legal issues aside, it is apparent even from what is now agreed between the parties to be the narrative of events in August 2024 that there will be important forensic and evidentiary issues to be raised and resolved about what the true reasons were for the MSO’s alleged conduct.

21    The MSO is an orchestra, and an institution, of international renown. Whether or not some of the MSO’s separate legal arguments may succeed, the conduct of this proceeding and the evidence likely to be led is capable of having significant reputational consequences for the MSO. In those circumstances, it is particularly important that the MSO be able to make the forensic decisions it is advised to make about how to conduct the witness aspect of this trial.

22    Here, the First and Fourth Respondents have chosen to call up to 20 witnesses; some of whom may be brief but some of whom will spend some considerable time in the witness box. These witnesses include six current and former Directors of the MSO Board; seven current and former members of the MSO Executive Leadership Team; and one advisor to the MSO.

23    Dr Sophie Galaise (the former Managing Director of the MSO and the former third respondent to this proceeding), on the evidence currently provided to the Court, seems unlikely to be a willing witness. There may be others in this category. Those sorts of complexities inevitably increase trial time. Dr Galaise is currently based in Canada, and I return to some complexities about her evidence below.

24    Mr Gillham’s witness outline is very detailed, running to 42 pages, and it is obvious (as all counsel accepted) that he will be in the witness box likely for several days. As counsel for the First and Fourth Respondents pointed out, Mr Gillham’s witness statement exceeds what is contemplated by the practice note. However, it does give ample notice to the First and Fourth Respondents about what Mr Gillham’s evidence is proposed to be.

25    On any view, the present 5 day listing is inadequate now, given the forensic choices the parties have made about their witnesses. Out of an abundance of caution, the Court raised the prospect of splitting the trial, and commencing with the scheduled dates in December. Mr Gillham is based overseas, and as is apparent from other aspects of the interlocutory applications, so are several other witnesses, at least two of whom may or may not be permitted to give evidence by video link (Dr Galaise and Mr Moore). The time of year means any resumed trial could not occur until February 2026 at the earliest. And as it turned out, on inquiring of the availability of counsel, the Court was informed that there was no mutual availability until May 2026. Thus, splitting the trial is certainly not feasible or appropriate, and Mr Gillham’s counsel (who showed some initial inclination towards this option) ultimately appeared to accept this.

26    While the 5 day estimate was an agreed estimate given by all parties’ counsel during case management, this is a matter in which the stakes are high for both parties, and where there has been some refinement of the parties’ pleaded positions, so in these reasons the Court intends no criticism of the parties or their legal representatives for the dislodgment of the December 2025 trial dates. The Court has reserved Mr Gillham’s costs of the application to vacate the trial, and in due course a costs application may or may not be made, at a time when the Court is better positioned to make a full assessment of whether the First and Fourth Respondents’ conduct was such as to engage the exception in s 570 of the FW Act.

Video link orders ultimately not opposed

27    There was no objection in principle to Dr Samuel Cairnduff, Mr Morgan Hayes and Dr Angus McPherson (all witnesses to be called for Mr Gillham) being permitted to appear by audiovisual link. However, the application in relation to Dr Cairnduff was also based on considerations specific to the December 2025 trial dates. In any event, by correspondence to chambers of 29 October 2025, the Applicant indicated that the order in relation to Dr Cairnduff was not pressed.

28    Potential AVL evidence was also raised in Mr Zwier’s affidavit in respect of Mr Ian Smith, a communications adviser to MSO at the time of the events in question, and Ms Mary Waldron, an MSO Board member. It appears the need for AVL may have also related to a trial date in December 2025, and no mention was made at the 14 October hearing of an AVL link for these witnesses.

29    No ruling on these aspects of the interlocutory applications by the parties is presently required because of the lack of dispute and the vacation of the trial dates. For that reason the Court has dismissed the interlocutory applications, without determining the merits of those applications. The Court expects the parties in due course to propose consent orders to accommodate any such arrangements if they are to be maintained, taking into account the new trial dates.

Mr Moore

30    The application by the First and Fourth Respondents for Mr Andrew Moore to give evidence by video link was premised on the trial occurring in December 2025. Mr Gillham did not consent to this application being granted.

31    I accept that on the basis of Mr Zwier’s evidence that there was a persuasive case for Mr Moore to be able to give evidence by video link at that time, because of Mr Moore’s existing commitments in London at that time. Mr Moore now lives in London. Counsel for the First and Fourth Respondents informed the Court that if the trial was held in 2026, Mr Moore may well be able to travel to Australia for the trial. In my view, that travel may well be required but no decision is made about that in these orders.

32    Mr Moore is an important witness in this proceeding. Between April 2024 to March 2025, Mr Moore was the MSO Director of Programming, and he was also a member of the “MSO Leadership Group”, which (according to the witness outlines filed in the proceedings on behalf of the First and Fourth Respondents) met on the morning of Monday 12 August 2024, prior to the cancellation message being issued. On the witness outlines, it was Mr Moore who communicated to Mr Gillham’s agent, Elaine Armstrong, that Mr Gillham’s contact had been terminated. The witness outlines also indicate Mr Moore was closely involved in a number of further critical steps and events over the course of the next few days.

33    Since the parties were informed at the hearing that the Court was firmly persuaded it was appropriate to vacate the December trial dates, the parties accepted the question of whether Mr Moore needed to give evidence by video link could be postponed until new trial dates were set. As I have said, there may well need to be closer consideration given to any such application if it is renewed, especially given the new trial dates.

34    That is especially so in light of a further interlocutory application filed on behalf of the First Respondent shortly before the 14 October 2025 hearing, to issue a subpoena to each of Mr Moore and Dr Galaise out of the jurisdiction. That interlocutory application was not listed for hearing on 14 October, but was listed for mention and I return to it below.

Dr Galaise

35    There was an application by the First and Fourth Respondents for Dr Galaise to give evidence by video link from Canada, where she now resides. Dr Galaise was the Managing Director of the MSO at the time of the events in question, and had held that position since 2016 (on the witness outlines filed). Mr Gillham settled his claim against Dr Galaise prior to the strike out application: see Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 at [10].

36    It is obvious that Dr Galaise is a critical witness in this proceeding, especially in relation to the identification of the true reasons for the decision and conduct of the First and Fourth Respondents. The witness outline filed for her is expressed in a way that indicates it is principally based on existing documentary evidence rather than instructions from Dr Galaise.

37    Mr Bradley deposes at paragraph [29] of his affidavit:

From my review of the First and Fourth Respondents' Outlines and the Witnesses' Involvement Table, I believe that Ms Galaise and Mr Moore played key roles in the decisions to:

(a)     cancel Mr Gillham's performance at the Concert;

(b)     send the Cancellation Message;

(c)     impose, through the Second Respondent, the Second Condition upon Mr Gillham; and

(d)     publish the Final Public Statement.

38    Accordingly, Mr Gillham’s position is that each of these witnesses should give evidence in person. That is not an unreasonable position to adopt in a trial that is to be conducted by oral evidence and centres on matters such as the identification of the true reasons for conduct and decisions.

39    As with Mr Moore, how Dr Galaise is to give evidence in this proceeding will need to be the subject of further consideration, and is now connected at least in part to the fate of the interlocutory application by the First Respondent for leave to issue a subpoena to each of them out of the jurisdiction, and associated orders.

The subpoena applications in respect of Mr Moore and Dr Galaise

40    The MSO seeks leave to issue subpoenas addressed to Dr Galaise and Mr Moore, and to serve them on each person in Canada and the United Kingdom respectively, as well as orders providing for substituted service of the subpoena on Dr Galaise by emailing the subpoena to her legal representative Mr Joel Zyngier, Principal, Gilchrist Connell.

41    In his affidavit in support of MSO’s application, Mr Zwier deposes that Mr Moore is no longer in the employment of the MSO and lives in the United Kingdom. I note that the witness outline filed on behalf of Mr Moore is expressed in a manner that suggests Mr Moore gave instructions about its content. Nevertheless, it is understandable that Mr Moore may require a subpoena to attend and give evidence as Mr Zwier also deposes (in his further 13 October 2025 affidavit in support of the interlocutory application) that Mr Moore is now the Artistic Director at the Royal College of Music in London. Mr Zwier deposes that the College holds its London auditions in the first fortnight of December 2025, and it is accordingly a busy time of the year.

42    Mr Moore may need to negotiate with the College to take time off to give evidence at the trial, whether in person or by way of AVL.

43    As I have found above, whether or not leave is granted for Mr Moore to give evidence by video link is not a ruling the Court need presently make because of the vacation of the December trial dates, and therefore the original reason proffered for Mr Moore doing so (the College holding auditions in the first fortnight of December) no longer being relevant.

44    In respect of Dr Galaise, Mr Zwier deposes to efforts being made to meet with Dr Galaise in order to provide a witness outline. The response from Gilchrist Connell according to Mr Zwier was:

"Our client has instructed us that she is neither willing nor able to give evidence voluntarily in the matter. Our client seeks to avoid any further involvement in the matter so far as possible and hopes that your client will respect her desire for same."

45    Mr Zwier also deposed to efforts to inquire whether Gilchrist Connell had instructions to accept service of a subpoena addressed to Dr Galaise. Mr Zwier deposed that the response eventually received was:

"Our firm does not hold instructions to accept service of subpoena issued by your client to our client”.

46    The remainder of Mr Zwier’s evidence suggests, in summary, that the unwillingness of Dr Galaise to cooperate in the representation of the case for the MSO has continued in the absence of responses from her legal representatives to various correspondence from ABL. No criticism of any lawyer or individual is implied; rather the factual situation appears to be that set out in the quotation at [44] above. That situation is unremarkable given Dr Galaise reached a settlement with Mr Gillham which included him discontinuing his claim against her.

47    What that means however, as I explained in the 14 October hearing, is that the subpoena leave application should be treated as a contested application. There is sufficient material before the Court for an inference to be drawn that Dr Galaise may wish to contest the subpoena. While in some circumstances the Court may take the view this is adequately dealt with by the process to have a subpoena set aside, in this particular case I consider the more appropriate course is to give Dr Galaise notice, through her solicitors, of the application, and give her an opportunity to be heard on the application. That would also enable Dr Galaise to be heard on whether there should be orders that, if a subpoena is issued, she should be able to give her evidence by AVL, and to explain any objective basis she has for the position she adopts.

48    While there is no evidence that Mr Moore is taking the same kind of approach to his participation in this proceeding as Dr Galaise, I consider it would be fairer also to give Mr Moore an opportunity to be heard prior to any decision about whether to issue a subpoena to him under rules 10.44 and 24.12(1)(a) of the Federal Court Rules 2011 (Cth). Then, as with Dr Galaise, Mr Moore could also be heard directly on whether, if a subpoena is issued, he wishes to give evidence by AVL, and what the objective basis for his position is.

49    This process was discussed briefly at the end of the 14 October hearing. In the hearing I suggested the Court might give notice to Dr Galaise and Mr Moore of a Teams hearing to consider the interlocutory application by the First Respondent. On reflection, since this is an application by MSO, I consider it is preferable for MSO to be directed to serve its interlocutory application, supporting material and submissions on both Mr Moore and Dr Galaise, the latter service being permitted to be made through her legal representatives.

The suppression and discovery application

50    The applications centred on documents which could be relevant to statements in the Joint Defence of the First and Fourth Respondents that:

the MSO received complaints from individuals who attended the Recital about “the Introduction” (Amended defence at [19(c)]).

51    The interlocutory application sought that the:

First and Fourth Respondents be permitted to redact from any documents discovered by them the names, email addresses, residential or business addresses, and telephone numbers of persons who gave feedback to the First Respondent between 11 and 14 August 2024 (inclusive), the personal email addresses and telephone numbers of current and former Board Directors of the First Respondent and the email addresses and telephone numbers of current and former employees, sponsors, advisers and other persons associated with the First Respondent…

52    This was described as “Sensitive Personal Information”.

53    The interlocutory application also sought suppression orders over this information under s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) for a period of 10 years, as well as prohibitions on the material being inspected. The First and Fourth Respondents contended suppression orders were necessary to protect the safety of persons. In his affidavit, Mr Zwier deposed to receipt by MSO staff of abusive emails and phone call, of the sharing of contact details of certain MSO staff on social media and of expression of concern for safety and well-being by MSO musicians.

54    Ultimately counsel accepted the kinds of suppression orders sought were premature, given that the documents in question were not presently sought to be adduced in evidence, the trial now being a considerable time away and the present substance of orders providing for agreed sets of documents, oral evidence and therefore contentious documents to be tendered during oral evidence.

55    The argument then focussed on the orders sought about the redaction of documents to be discovered.

56    While Mr Zwier’s affidavit deposes that the information in the complaint documents is not relevant (despite the pleading in the Joint Defence), I do not consider such a broad contention can presently be accepted. As I explained during the hearing, it is quite possible that the identity of the complainants to the MSO is relevant, especially in the context of what their complaints asserted. The Court of course has not seen the complaints, but in the known circumstances it is not difficult to posit presently hypothetical examples. To take one example, if the complainants were well connected subscribers to the MSO, and/or well established donors to the MSO, and if their complaints were about their perceptions of what Mr Gillham was asserting in his statement during the Recital, then the Applicant would be entitled to explore during the evidence the likely or actual impact of such complaints on the decision making of those within the MSO responsible for the decisions that were made, and responsible for the content of the messages which were issued by the MSO.

57    However, as I also said during oral argument, it is difficult to see why the contact details of such complainants are required. When those complainants communicated with the MSO, it is unlikely they had in contemplation that their complaints might become part of a legal proceeding of any kind; it is likely the complainants considered they were complaining to the MSO, and their communications would only be disclosed to the MSO.

58    While strictly the personal contact details might be discoverable, senior counsel for Mr Gillham could not identify any forensic purpose for which they needed to be disclosed. The highest senior counsel put it, somewhat faintly, was that the Applicant might seek to call some of those complainants to give evidence. I infer that course might be considered if there was perceived to be a basis for the kind of arguments I have given in the hypothetical example above. On any view, given the quality and experience of legal representation on both sides of this proceeding, the Court is confident that if a request was made through the legal representatives for the parties, sufficient contact details would be forthcoming to enable such potential witnesses to be contacted and if necessary for subpoenas to be issued.

59    I had urged the parties to take a pragmatic approach to this interlocutory application, and ultimately that is what occurred, with a concession eventually made on instructions by counsel for the First and Fourth Respondents that the names of the complainants could and should be disclosed. Counsel also accepted that the suppression order aspect of the interlocutory application was premature.

60    On that basis, I have done no more than set out the basis for my reasoning in terms of the course I proposed during the hearing. The interlocutory application will be dismissed because of the concessions made during the hearing, and the merits of any suppression order application can be considered at or close to a time when evidence is actually sought to be adduced that is contended to endanger the safety of any person.

The adequacy of the witness outlines of the First and Fourth Respondents

61    This was a matter raised by Mr Gillham through the affidavit of Mr Bradley. He deposed (at [21]):

From my review of the First and Fourth Respondents' Outlines, I observed that many of the outlines contain vague phrasing around each witnesses' purported involvement in the Applicant's pleaded adverse actions. Having reviewed the First and Fourth Respondents' Outlines, I cannot ascertain with any precision whether certain witnesses would need to give evidence during the final hearing.

62    Mr Bradley had a table prepared and attached to his affidavit which set out a range of examples.

63    Independently of Mr Bradley’s evidence, in preparing for the case management hearing and reading the witness outlines filed on behalf of MSO, I had reached a similar conclusion, although in a rather more limited way.

64    Where a trial is ordered to be by way of oral evidence, as this trial is, the predominant function of witness outlines is procedural fairness to the other party or parties. The outlines are intended to give notice to other parties about the substance of the evidence called, not only so they can prepare to cross examine, but also so that they can identify any responsive or answering evidence that they may need to adduce. Adequate outlines also ensure that other parties are not ambushed or surprised by the content of oral evidence once given.

65    In Walter v Buckeridge (No 3) [2010] WASC 68, at [15] in remarks directed at written evidence in chief but of equal relevance to witness outlines, Le Miere J said:

The exchange of witness statements serves a number of functions. One of these is the elimination of surprise in our adversarial system of litigation. It is now accepted practice that before a party goes into court the party should know what case he or she is going to meet. The days of ambush are a thing of the past. A second objective of requiring the exchange of witness statements is to render the trial process more efficient and shorter.

66    The first function is the current focus. In Zuckerman on Australia Civil Procedure (Zuckerman, A, Wilkins, S, Adamopoulos, AV, Higgins, A, Hooper, S, Oreb N and Jago, C; 2nd ed, Lexis Nexis, 2023), the authors state, at p 894:

Outlines of evidence [as opposed to affidavits or witness statements] are most appropriate in cases where: (1) there are contested facts; (2) the court would otherwise benefit from hearing each witness’s account of events first hand; (3) the costs of preparing a witness statement or affidavit would be disproportionate to the quantum of the dispute; or (4) a person who a party wishes to call as a witness is uncooperative with that party, such that a complete account of their evidence cannot be obtained (and put into statement or affidavit form) before trial. In the latter case, the outline may simply list the topics on which the witness will be invited to give evidence, and evidence the witness is expected to give on those topics.

67    In Australian Securities and Investments Commission v Vines [2002] NSWSC 1223, Austin J said at [12]:

I would have thought that the very purpose of [the applicant] providing an outline of evidence is to report [the applicant]’s opinion of what each witness will say, or might reasonably be predicted to say, in their evidence in chief.

68    In a speech given in 2017, Justice Kenneth Martin of the Western Australian Supreme Court said [emphasis added]:

The fundamental guiding principle is for the exchanged outline to avoid unfair forensic trial prejudice to the other side by undue surprise from out of the verbal evidence as adduced.

…

A touchstone for a fair witness outline then is one that gives fair notice of the forthcoming verbal evidence from the witness, and avoiding surprise and undue prejudice to the other side, from the evidence of non-expert witnesses, when adduced at trial in the traditional way.

…

There is a time trodden wisdom in following an approach that providing too scant detail of the evidence, under a witness outline, may carry a long-term potential for trouble to arise. The reverse is invariably a safer option. Hence, the more detailed the information given under the outline then, correlatively, so less will be the prospect of a prejudice objection emerging by an opposing party at the trial by contending unfairness and surprise - on the basis of a lack of detail and so to their suggested inability to respond and fairly deal with evidence at the trial, as a matter of their contended prejudice.

69    With great respect, this is a sound position, borne of considerable trial experience. As these reasons have already disclosed, one (but not the only) focus of this trial will be proof of why the MSO took the action it did. Since the factual circumstances of the four pieces of adverse action described at [13] above are generally agreed to involve a number of individuals, and in some cases, decision making by a group, then individual recollections of what was said, and by whom, as well as accounts of their own motivations for decisions they participated in or agreed to (or disagreed with), will all be critical to an evaluation by the Court of the true reasons for the alleged adverse action.

70    By and large there is no dispute between the parties that the four pieces of conduct in fact occurred. What is in issue is who made the decisions, and why. As I have also noted, s 361 casts the onus of proof on the MSO to disprove the prohibited reason alleged by Mr Gillham.

71    Therefore, it is imperative that the MSO witness outlines give fair and adequate notice to Mr Gillham of what each of its witnesses will be saying on these critical issues.

72    The present MSO witness outlines make it clear that there several differently constituted groups of people involved in the alleged conduct – the “MSO Leadership Group” and the “MSO Board Working Group”. The witness outlines generally identify which proposed witnesses were members of which group.

73    None of these groups have previously been identified in MSO’s pleadings, nor in its Concise Response.

74    Otherwise, the Amended Concise Response only makes general statements such as:

(a)    “Over the afternoon and the evening of Monday, 12 August 2024, the MSO gave notice to both Mr Gillham and the SSA terminating Mr Gillham’s contract for services for convenience” (at [7]); and

(b)    “In the days immediately following the Termination of the Gillham / SSA Agreement, the MSO reconsidered its position as to Mr Gillham’s participation in the Concert. The MSO Board authorised Mr Ross (as the then COO) and Mr Andrew Moore (as the then Director of Programming) to engage in good faith negotiations with Mr Gillham’s trade union representative and his agent.” (at [11]).

75    During the 14 October hearing, I took Mr Moore’s current witness outline as an example of inadequacies I perceived with the outlines. Mr Moore’s outline indicates he was a member of the MSO Leadership Group. Like many other MSO witness outlines, it indicates there was a key meeting at 9.30 am on Monday 12 August 2024, the day after the Recital performance.

76    Aside from one sentence, Mr Moore’s outline gives no indication of what he said at that meeting, nor what others said. The outline simply states:

The prevailing view of the attendees was that the Concert on Thursday, 15 August 2024 at Melbourne Town Hall should proceed without Mr Gillham and that Mr Gillham’s contract should be cancelled, as Mr Gillham should not have used the MSO’s stage to make an unauthorised political statement during the Recital.

77    The outline does state:

Mr Moore will also say that he suggested in this meeting that Mr Gillham might be encouraged to withdraw from performing at the Concert, instead of having his performance cancelled by the MSO.

78    However, the outline does not state that this is the only recollection Mr Moore has of what he said at the meeting. It does not give any indication of what his own views or state of mind were; only what the “prevailing view” was. It says nothing about whether there was a debate or discussion, and who he can recollect said what.

79    Likewise, in relation to the Cancellation Message, Mr Moore’s outline only states:

During the day, Mr Moore (along with each of Mr Stewart, Mr Ross, Ms Dembo and Ms Galaise) was involved in reviewing drafts of the Cancellation Message.

80    The outline does not state whether Mr Moore has any recollection of what was discussed during those reviews, in terms of what should and should not be said, nor which of the people involved held which views. The outline says nothing about Mr Moore’s own views about the content of the message, or any suggestions he made.

81    On the issue of the proposal to re-instate the Concert with conditions imposed on Mr Gillham, Mr Moore’s outline states:

On the morning of Wednesday, 14 August 2024, Mr Moore spoke with Margaret Jackson AC and Ms Galaise. Ms Jackson indicated that the MSO Board Working Group wanted to attempt to have Mr Gillham reinstated to perform at the Concert. Mr Moore was tasked with contacting Ms Armstrong to try to achieve this.

82    There are similar generalities in the outlines of the other MSO witnesses, such as Ms Jackson.

83    As a final example, paragraph [20] of Mr Moore’s witness outline states:

Mr Moore attended a Board meeting that had been urgently scheduled that afternoon at 3pm. Mr Moore will give evidence that the Board minutes accurately reflect the topics discussed during the Board meeting.

84    Identical, or almost identical, paragraphs appear in most of the other MSO outlines of Board members.

85    Again, this statement gives notice of the witness’ recollection that the MSO Board minutes are accurate. The Board minutes are currently not in evidence on these applications. Nevertheless, on any view the outline gives no indication of the witness’ own views as expressed during the meeting, nor his recollection of what was said by others who were present about the imposition of conditions on Mr Gillham, and the proposal to reinstate the Concert.

86    The same observations can be made about paragraph [21] of Mr Moore’s outline, which concerns the “Final Public Statement” published by MSO. There is nothing to indicate what Mr Moore said, or thought, about the content of the statement, nor about the omission of an apology to Mr Gillham. Nor is there a statement that Mr Moore has no recollection of what he said or did, nor what anyone else involved said or did. As I explained during the hearing, a witness outline may give adequate notice of a witness’ evidence by stating that the witness has no clear or independent recollection of an event or a conversation; in that sense, the other party is clearly apprised about the state of the witness’ recollection and can prepare accordingly.

87    There are some matters in the table produced by Mr Bradley that I do not consider concern matters of any central or significant nature to the issues between the parties, and especially to the ascertainment of the true reasons for the conduct of the MSO. However, the kinds of matters I have outlined above by references to Mr Moore’s testimony are significant, and more adequate notice should be given to Mr Gillham about what the MSO witnesses will be saying.

88    Counsel for the MSO pointed to the E&IR practice note at [9.2], which provides:

When evidence-in-chief is to be led orally, outlines of evidence will ordinarily be exchanged. The purpose of an outline is to provide notice of the evidence to be given by the witness. An outline of evidence should identify the topics the witness will address, and also outline, in summary form, the evidence that will be given on each topic. It is expected that, ordinarily, no more than 4 pages will be required. Without the leave of the Court, an outline of evidence will not be the subject of cross examination or be tendered as a prior statement of a witness. In considering whether such leave should be given, the limited purpose of an outline may be taken into account.

89    Counsel submitted that the MSO outlines complied with this practice note instruction. He contrasted Mr Gillham’s witness statement which was 42 pages and, at least implicitly, submitted this was not consistent with the practice note and was not an “outline”.

90    The MSO outlines do clearly identify “topics”. However, I do not accept, for the reasons I have explained using Mr Moore’s outline as an example on the issues I consider to be of most relevance, that the current MSO outlines give “in summary form the evidence that will be given on each topic”, particularly when the context of the proceeding and the consequences of s 361 are considered.

91    Paragraph [11.1] of the Central Practice Note (CPN-1) is also relevant:

In respect of evidence, parties are entitled to know, with sufficient notice and clarity, the evidence upon which other parties intend to rely. This is important not only to the running of the case, but also to facilitating an early resolution of the case.

92    Counsel for MSO also submitted that the Court was at this stage unaware of documents which would be relied on by MSO as evidence of what was said by various individuals involved in the decision making. The inference might be drawn from this submission that the documents will disclose something about a witness’ state of mind. While it may well be that contemporaneous documents (such as emails and text messages) disclose the evidence of a witness relevant to the reasons for certain conduct, none of those documents are referred to in the witness outlines.

93    To take a hypothetical example, if a witness who was a member of one of the MSO decision making groups will give evidence that their own view about why the Concert should have been cancelled was contained in a text message sent to another member of one of the MSO decision making groups, then this could have been stated in the outline and the text message attached, or quoted in the outline (as other text messages on different topics were, in some outlines). That would have been adequate notice on a factual matter that is critical to the resolution of the proceeding.

94    Therefore, the Court was not persuaded by the submissions made on behalf of MSO that the MSO witness outlines were adequate in their current form.

95    Accordingly, the Court has made orders for the First Respondent to file further amended witness outlines in relation to certain witnesses, and in respect of certain topics. Broadly, these are members of the “MSO Leadership Group”, and “MSO Board Working Group”, and the orders refer to the topics I have set out in these reasons. No orders have been made in respect of Dr Galaise’s outline, the evidence currently being that the First and Fourth Respondents are not able to obtain specific instructions from Dr Galaise which would enable them to comply with the Court’s orders. This may be a matter that can be addressed as part of the consideration of the subpoena application in respect of Dr Galaise.

96    Given the vacation of the December trial dates, and the limited mutual availability of the parties and their legal representatives not reoccurring until May 2026, there is ample time for the MSO to prepare amended outlines.

The affidavit proposal

97    Senior counsel for Mr Gillham put an alternative proposal during the 14 October hearing – namely that the trial be by affidavit. This proposal was opposed by the First and Fourth Respondents, principally on the basis of the costs already expended in preparing witness outlines, and the likely costs to be incurred in producing affidavit material, all in the context of a jurisdiction which operates, by reason of s 570 of the FW Act, on the basic premise that each party will bear their own legal costs of a proceeding. I accept the position of the First and Fourth Respondents on this issue: the costs consequences of this suggestion would be significant and I do not consider it would be appropriate at this stage to impose those kinds of costs consequences on the remaining respondents.

98    The proposal is also contrary to the approach set out in the E&IR practice note, and to the current orders of the Court. As I explained during the hearing, and have set out earlier in these reasons, the giving of oral evidence in trials of this kind is an important aspect of the Court ensuring it obtains the most reliable evidence, which truly reflects the recollections and understandings of the witnesses concerned.

99    In Queensland v Masson [2020] HCA 28; 94 ALJR 785, Nettle and Gordon JJ said at [112]:

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge's assessment of it, that is of paramount importance.

100    See also Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117 at [179]-[182] (Kenneth Martin J):

179     My oversight of this process [that of exchange of witness outlines, with oral evidence-in-chief at trial], as case manager has demonstrated for me the superiority of this process, as an instrument for more reliably ascertaining true facts, where there is dispute. Here, very considerable clarifications and adjustments emerged at the trials towards the earlier exchanged witness evidence summaries, prior to witnesses' evidence being led at the trial. This was in circumstances where, had a formal witness statement been prepared, and exchanged for proposed tender, I tend to doubt whether the corrected inaccuracies in the earlier exchanged evidence would have been picked up and corrected before the evidence was tendered at trial. The leading of the evidence cured that.

180     Furthermore, a more traditional leading of the witnesses through their evidence in this trial enabled me to better assess and assimilate that evidence and also to evaluate the overall credibility of a witness's testimony. This allowed a more balanced perspective, rather than simply observing key witnesses from the beginning under their cross-examination, or later, in a generally brief re-examination (if any).

181     Another large forensic advantage I assessed was that precious trial hours were not lost here by needlessly debating evidentiary objections to multiple paragraphs of the exchanged witness statements, as routinely occurs in commercial cases. At trial, there were only a handful of easily resolved objections to evidence in chief of witnesses, as that evidence was being elicited viva voce.

182     Here, the trial time saved in not needing to deal with hosts of sterile, multi-faceted evidentiary objections to endless rambling paragraphs of lawyer influenced witness statements, more than balanced time consumed in the leading of the witnesses' evidence in chief in traditional fashion. In this trial, both counsel sensibly led their witnesses through their evidence in chief at times. They did not object where the evidence in chief was uncontroversial, and it was led helpfully and quickly under this process.

101    While there is no doubt a reasonable documentary trail, especially by way of email and text message, about some of the factual narrative surrounding the four pieces of alleged adverse action, it is also very plain that the credibility and reliability of what is said by MSO’s witnesses will be central to the resolution of this case. On some other discrete issues which are now joined between the parties – such as the issue whether what Mr Gillham did was outside the bounds of reasonable conduct for an concert performer in that situation – are likely also to be best developed and tested through oral evidence, rather than through affidavits, which tend to be carefully prepared by lawyers, worked though in great detail with deponents and not produced until exhaustive checking of them has occurred. In a proceeding such as this, the tendency for the product to be more of a reconstruction by persons other than the deponent as well as by the deponent, than a reflection of true recollection, is significant.

Costs of the application

102    In the course of the 14 October 2025 hearing, the Court made an order reserving the Applicant’s costs of the First and Fourth Respondents’ interlocutory application insofar as those costs relate to the application to vacate and relist the hearing. While the proceeding might be described as occurring in a prime facie no-costs jurisdiction, as a result of the operation of s 570(1) of the FW Act, senior counsel for the Applicant foreshadowed Mr Gillham would seek to make a costs application about the interlocutory application to vacate the December trial dates. I did not consider this was a matter appropriate for the Court to deal with at this stage, and it is better dealt with (if it is pressed) on a consideration of the full context of the trial, after it has occurred and after the Court has reached its conclusions on the allegations made. Accordingly, I reserved the Applicant’s costs of the interlocutory application by the First and Fourth Respondents.

Remaining orders

103    The timetable set by National Judicial Registrar Edwards will no longer reflect an appropriate timetable, given the new hearing dates. The parties are under less pressure now the hearing is not until May 2026. That said, the Court was informed there are ongoing attempts at mediation, and that process will no doubt be assisted by maintaining a timetable that requires the exchange of materials in a timely manner.

104    Accordingly, the Court has made orders requiring the parties to work with National Judicial Registrar Edwards to agree a new timetable towards the new hearing dates.

105    The Court urges the parties to make the most of the provision for an agreed statement of facts (and an agreed bundle of documents), so as to minimise the time required for oral evidence, and to ensure oral evidence is limited to factual matters genuinely in contention between them.

Re-allocation

106    The orders made today include an order that the proceeding be returned to the Court’s National Operations Registry for re-allocation to another docket Judge. Unfortunately, the vacation of the December dates, the new estimated length of the trial, the extent of my 2026 commitments as Chief Justice and the singular availability of the parties in May 2026 collectively mean that I will be unable to hear and determine this matter. It will be re-allocated in accordance with the usual guidelines to another Judge.

Associate:

Dated:    6 November 2025