Federal Court of Australia

Love v Structural Monitoring Systems PLC [2025] FCA 1665

ORDERS

THE COURT ORDERS THAT:

1.    The applicants' claim for interlocutory relief is dismissed.

2.    The applicants are to pay the first and second respondents' costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    The first respondent, Structural Monitoring Systems PLC (SMS UK) is a company that is incorporated in the United Kingdom, but which is registered as a foreign company under the relevant provisions of the Corporations Act 2001 (Cth). The second respondent, Structural Monitoring Systems Ltd (SMS), is a subsidiary of SMS UK (CM 216 and 368). SMS UK and SMS largely operate through Anodyne Electronic Manufacturing Corp (AEM), a subsidiary of SMS that is based in Canada. AEM designs and manufactures products for the aviation industry.

2    The first applicant, Ross Andrew Love, is a director of both SMS UK and SMS. He is also a director and shareholder of the second applicant, a company called Turton House Group Pty Ltd (Turton). Mr Love asserts that pursuant to the terms of an Executive Services Agreement (Services Agreement), Turton agreed to provide Mr Love's services to both SMS UK and SMS as 'Executive Chairman'. According to the Services Agreement, while acting as the Executive Chairman, he was required to act as the Chairman of the board of directors and to perform all duties ordinarily required of a Chief Executive Officer (CEO) of an 'ASX Company'. For a period, Mr Love was also acting as AEM's interim CEO.

3    In July 2025, an AEM employee made a complaint in which she made allegations about Mr Love's behaviour in the workplace. That complaint led to the appointment of a workplace investigator who then carried out an investigation.

4    Mr Love was provided with a summary of the workplace investigator's final report in mid-September 2025. When Mr Love requested, but was then refused, access to the full version of the investigator's report, various disputes broke out, and a flurry of legal correspondence passed between the representatives of Mr Love and those of the respondents. Ultimately, lawyers acting for the SMS group of companies informed Mr Love that unless he agreed to settle their dispute, steps would be taken with a view to terminating the Services Agreement with Turton.

5    It was in those circumstances that Mr Love and Turton (together, the applicants) commenced these proceedings, claiming that SMS UK and SMS (together, the SMS respondents):

(a)    took adverse action against the applicants, contrary to s 340(1) of the Fair Work Act 2009 (Cth);

(b)    victimised Mr Love, contrary to s 1317AC(1) of the Corporations Act; and

(c)    engaged in conduct to the detriment of Mr Love, in circumstances enlivening the Court's power to make an order under s 1317AE, for the purposes of s 1317AD(1) of the Corporations Act.

6    The applicants also claim that the members of SMS UK's board of directors, as well as SMS UK's Head of Corporate and Legal Affairs, are liable for those contraventions because they were 'involved' in the contraventions: see s 550 of the Fair Work Act; and s 1317AC(3), read with s 79, of the Corporations Act.

7    The applicants seek various forms of relief, including declaratory relief, as well as orders for compensation and penalties under both the Fair Work Act and the Corporations Act. The applicants also seek interlocutory and final injunctions to effectively restrain the SMS respondents from acting on the results of the workplace investigation, including by taking any step that would have the consequence of Mr Love ceasing to be a director, Executive Chairman and CEO. Further, the applicants seek an injunction to restrain the publication or dissemination of the workplace investigator's report or any of its findings.

8    On 9 October 2025, Mr Love successfully applied to this Court, on an ex parte basis, for an interim injunction. That interim injunction was in the following terms:

Pursuant to s 1324 of the Corporations Act 2001 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth), until 11.59 pm AWST on Friday 17 October 2025 or until further order, the [SMS] respondents, whether by themselves or by their officers, employees, or agents, are restrained from:

(a)    taking any step that would have the consequence of [Mr Love] ceasing to be any or all of:

(i)    a director and Executive Director of the [SMS] respondents; and

(ii)    Chief Executive Officer of the [SMS] respondents;

(b)    publishing or disseminating the investigation report prepared by [the workplace investigator] dated 17 September 2025 or any of its findings beyond the Board of [SMS UK] and its legal advisors.

9    That injunction was due to expire on 17 October 2025. However, orders were made on that date to extend the operation of the interim injunction until the applicants' claim for an interlocutory injunction is determined, or further order.

10    These reasons are concerned with the applicants' application for an interlocutory injunction. The applicants seek an order continuing the effect of the interim injunction until further order. The applicants also seek a further order in the following terms:

Pursuant to pursuant to [sic] section 545 of the [Fair Work Act] and sections 1317AD(1) and 1317AE(1)(c) and 1324 of the Corporations Act, and section 23 of the [Federal Court of Australia Act 1976 (Cth)], until further order, an order that each, or alternatively any one, of the [SMS] Respondents, whether by itself, its officers, its employees, or its or [sic] agents, be restrained from any further refusal to permit [Mr Love] to perform the duties of a director and Executive Director of the [SMS] Respondents, and Chief Executive Officer of the [SMS] Respondents.

11    It is my understanding that although the orders sought by the applicants refer to a position of an 'Executive Director', consistently with the terms of the Services Agreement that is to be taken to be a reference to the position of Chairman of the respondents' boards of directors. Accordingly, I will refer to this position as 'Executive Chairman' in the balance of these reasons.

12    As the following reasons will demonstrate, I am of the view that the application for interlocutory relief must be dismissed.

The relevant principles to be applied

13    The parties approached the applicants' application for an interlocutory injunction on the basis that it fell to be resolved according to the well-established principles that apply in the exercise of this Court's equitable jurisdiction to grant an injunction, as reflected in s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act): Smart EV Solutions Pty Ltd v Guy [2023] FCA 1580 at [28].

14    In Minister for Immigration and Multicultural Affairs v MZAPC [2025] HCA 5 at [23], Gageler CJ, Gordon, Gleeson and Jagot JJ explained that the primary purpose of an interlocutory injunction is to keep matters in status quo until the rights of the parties can be determined at trial. Their Honours also said, citing Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 (Lenah Game Meats) at [11] (Gleeson CJ), that:

[t]he condition precedent remains that 'a plaintiff seeking an interlocutory injunction must be able to show sufficient colour of right to the final relief, in aid of which interlocutory relief is sought', the usual description of the sufficiency of that colour of right being the establishment of a serious question to be tried or a prima facie case.

(footnotes omitted, emphasis added)

15    In support of that proposition, their Honours also cited [13] of Gleeson CJ's reasons in Lenah Game Meats, where his Honour in turn referred to the following passage from the reasons of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

(emphasis added)

16    When an interlocutory injunction is sought in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at trial and in respect of which final relief is sought: Samsung Electronics Co. Limited v Apple Inc. [2011] FCAFC 156; (2011) 217 FCR 238 at [52]; citing Lenah Game Meats at [8]-[21] (Gleeson CJ), [59]-[61] (Gaudron J), [86]-[92], [98]-[100], [105] (Gummow and Hayne JJ). Accordingly, what will be a sufficient likelihood of success will depend on the nature of the rights asserted and the practical consequences that are likely to flow from the order sought: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622.

17    The applicants in this case seek various forms of final relief, including declaratory relief, as well as orders for compensation and for the payment of pecuniary penalties. The applicants also seek final injunctive relief in the following terms:

An order that, pursuant to section 545 of the [Fair Work Act], sections 1317AD(1) and 1317AE(1)(c) and 1324 of the Corporations Act, and section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), each Respondent, whether by itself, its officers, its employees, or its agents, be restrained from:

(a)    the taking of any further step to decide, finalise or otherwise act upon, or further act upon, the purported investigations into the matters raised in the email of [an AEM employee] dated 23 July 2025;

(b)    the taking of any step that would have the consequence of [Mr Love] ceasing to be any or all of:

i.    a director and Executive Director of the [SMS] Respondents; and

ii.    the Chief Executive Officer of the [SMS] Respondents; and

(c)    the publication or dissemination beyond [SMS UK's] Board and its legal advisors of the investigation report prepared by [the workplace investigator] dated 17 September 2025 or any of its findings.

18    The power to make an interlocutory injunction is not confined to circumstances in which the injunction that is sought is to the same effect as the final order that is sought: MZAPC at [24]. However, as senior counsel for the applicants accepted at the hearing of this matter, the interlocutory injunction is sought by applicants in aid only of final injunctive relief. It will be necessary to return to this aspect of the applicants' case later in these reasons.

19    In Smart EV Solutions at [30], Derrington J noted that to establish that there is a prima facie case, an applicant for an interlocutory injunction does not have to establish that it is more probable than not that it will succeed at trial. Instead, there must be 'a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial': Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ). However, in examining the strength of a case for an interlocutory injunction, the Court does not undertake a preliminary trial with a view to resolving conflicts in the evidence: Ord Minnett Holdings Pty Ltd v Longmuir [2023] FCA 1262 at [89].

20    In addition to establishing that there is a serious question to be tried or a prima facie case, an applicant for an interlocutory injunction must also demonstrate that the balance of convenience and justice favours the granting of an injunction. In that context, the Court is required to assess and compare the prejudice and hardship likely to be suffered by a respondent and, where relevant, by third persons and the public generally, if an injunction is granted, with that which is likely to be suffered by the applicant if no injunction is granted: Samsung at [65]‑[66].

21    Reference was made in the parties' written submissions to reluctance of Courts to make injunctive orders to enforce the continued performance of employment contracts and contracts for the provision of services. The applicants submitted that slightly different principles apply where there has been a breach of the legislation regulating industrial rights, referring to what was said by Merkel J in Transfield Construction Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union [2002] FCA 1413 at [28]:

the traditional reluctance of the Court to make interlocutory mandatory orders, including ordering employees to return to work, may not apply to conduct which, prima facie, is in breach of the [Workplace Relations Act 1996 (Cth)].

(citations omitted)

22    In that regard, see also Quinn v Overland [2010] FCA 799 at [97]-[104].

23    However, there is a need to look at the circumstances of each case: Rugg v Commonwealth of Australia as represented by the Department of Finance [2023] FCA 179 at [45]; citing Quinn at [100]. Further, as was said in Tymbook Pty Ltd v State of Victoria [2006] VSCA 89; (2006) 15 VR 65 at [35]:

… whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.

24    In this context, it is important to appreciate that the applicants are not seeking reinstatement orders. The Services Agreement is still on foot. The applicants are seeking interlocutory orders preventing the SMS respondents from taking any step, until further order, that would have the effect of Mr Love ceasing to be a director, the Executive Chairman and CEO, as well as preventing the SMS respondents from publishing or disseminating the workplace investigator's report, or any of its findings. Accordingly, while the applicants' claims are based on alleged contraventions of the Fair Work Act and the Corporations Act, the circumstances in which interlocutory injunctions are sought in this case are very different to those with which cases such as Transfield Construction and Quinn were concerned.

25    The interaction between the Court's assessment of the likely harm to the applicant if no injunction is granted, and its assessment of the adequacy of damages as a remedy, will always be an important factor in the Court's determination of where the balance of convenience and justice lies: Samsung at [63].

26    Whether there is a prima facie case, and whether the balance of convenience and justice favours the grant of an injunction, are related inquiries and they should not be considered in isolation from each other. The apparent strength of the substantive cases of the parties will often be an important consideration to be weighed in the balance: Samsung at [67].

27    The parties proceeded on the basis of the principles I have just summarised. However, in addition to relying on s 23 of the Federal Court Act as the source of the power to grant the injunction sought, the applicants also rely on ss 1317AD(1) and 1317AE(1)(c) of the Corporations Act, relevant parts of which are reproduced later in these reasons. It is not clear to me why the applicants suggest that those provisions are the source of a power to order an interlocutory injunction. The chapeaux to s 1317AE(1) provides that a court may make any of the orders in paras (a) to (g) of that section '[f]or the purposes of subsections 1317AD(1), (2) and (2A)'. However, those provisions set out the pre-conditions that must be met, at a final hearing, before an order can be made under s 1317AE. In those circumstances, I will proceed on the basis that the applicants in fact rely on this Court's equitable jurisdiction to grant an injunction in aid of final relief in the form of an injunction made pursuant to s 1317AE(1)(c) of the Corporations Act.

28    The applicants also rely on s 1324 of the Corporations Act. Although it is not expressly referred to in their claim for interlocutory relief, the applicants may be taken to rely on s 1324(4), which confers a power to grant an interim injunction pending determination of an application for an injunction under s 1324(1).

29    In Armstrong World Industries (Australia) Pty Ltd v Parma [2014] FCA 743 at [21]-[22], Beach J observed that the statutory test for the grant of an injunction under s 1324(4) of the Corporations Act is 'in form and partly in substance different to the equitable basis, which is discussed in Australian Broadcasting Corporation v O'Neill … in the well-known passages from the reasons of Gummow and Hayne JJ at [65]-[72]'. See also Australian Securities and Investments Commission v Mauer‑Swisse Securities Ltd [2002] NSWSC 741 at [33]-[36] (Palmer J). In Armstrong World, Beach J also noted that the jurisdiction that the Court is exercising under s 1324(4) differs from the equitable jurisdiction in that there is at least one additional factor that should be taken into account. That additional factor is whether the injunction would have some utility, or would serve some purpose, within the contemplation of the Corporations Act, such as preventing or ameliorating a threatened contravention of that Act. Those observations were more recently cited with apparent approval by Moshinsky J in Australian Securities and Investments Commission v Merhi (No 2) [2025] FCA 1343 at [50] and by Markovic J in Ceni Enterprises Pty Ltd (in liq) v Sykes, in the matter of Ceni Enterprises Pty Ltd (in liq) [2024] FCA 842 at [71].

30    Although the question of whether there is a serious question to be tried, and the issue of where the balance of convenience lies, will not circumscribe the Court's consideration in an application for an interim injunction under s 1324(4), the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court: Australian Securities and Investments Commission v Mauer‑Swisse at [36].

31    Neither party suggested that the question of whether the injunction sought by the applicants should be answered by reference to whether it would have some utility, or would serve some purpose, within the contemplation of the Corporations Act. Accordingly, I will deal with the application for an injunction under s 1324(4) of the Corporations Act on the basis that the parties accept that in the circumstances of this case, the traditional considerations that apply in the context of applications for interlocutory injunctions are the only relevant considerations.

32    The applicants also rely on s 545 of the Fair Work Act. Again, although it is not expressly referred to in their claim for interlocutory relief, the applicants must be relying on the power to grant an interim injunction to prevent, stop or remedy the effects of a contravention of a civil remedy provision that is conferred by s 545(2)(a) of the Fair Work Act.

33    The parties also did not suggest that the principles that apply to the exercise of the jurisdiction under s 545(2)(a) of the Fair Work Act are in any way different to the principles that apply to the exercise of this Court's equitable jurisdiction to grant an injunction. This is the approach that has been taken by this Court in other cases in which it has been asked to exercise that power: see, for example, Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Green Light Contractors Pty Ltd [2023] FCA 536; Australian Nursing and Midwifery Federation v St Vincent's Private Hospitals Ltd [2025] FCA 18. In those circumstances, I will adopt the same approach.

34    Having summarised the relevant principles that must be applied to determine the applicants' application for an interlocutory injunction, it is then necessary to identify the evidence on which the parties rely.

The evidence

35    The applicants relied on two affidavits that Mr Love affirmed on 9 October 2025 and 18 November 2025, respectively. The applicants also relied on two further affidavits, both of which were affirmed by Giacomo Edmondson Giorgi on 17 October 2025. The first of those affidavits affirmed by Mr Giorgi will be referred to as the 'Georgi Affidavit' in the balance of these reasons. The second of those affidavits is relevant only to amendments that were sought to be made to the originating application to remove two respondents who were originally joined as parties to these proceedings, and to add two other respondents.

36    The respondents relied on 11 affidavits. Those affidavits were as follows:

(1)    The affidavit of Sam Michael Wright, Director/Company Secretary for SMS respondents, affirmed 22 October 2025.

(2)    The affidavit of Terence William Joseph Walsh, Head of Legal and Corporate Affairs for SMS UK, affirmed 22 October 2025.

(3)    The affidavit of Brian Richard Wall, Non-Executive Director for SMS UK, sworn 21 October 2025.

(4)    The affidavit of Heinrich Hermann Loechteken, Non-Executive Director for SMS UK, affirmed 22 October 2025.

(5)    The affidavit of Anthony Faillace, Non-Executive Director for SMS UK, dated 22 October 2025.

(6)    The affidavit of Marlena Christine Klassen, AEM People & Culture Director, affirmed 21 October 2025.

(7)    The affidavit of Robert Gordon Gooding, AEM Chief Financial Officer, affirmed 21 October 2025.

(8)    The affidavit of Trevor Lynch-Staunton, AEM Chief Technical Officer, affirmed 21 October 2025.

(9)    The affidavit of Taylor Morgan Wylie, AEM Group Chief Operating Officer, affirmed 21 October 2025.

(10)    The affidavit of Sean Anthony Cobham, AEM Research & Development Director, affirmed 21 October 2025.

(11)    The affidavit of Anthony Robert Weller, AEM Sales & Marketing Director, affirmed 21 October 2025.

37    As this is not a preliminary trial of the applicants' claims, I will refer to that evidence only where it is necessary to determine whether the injunction sought by the applicants should be made.

38    In his affidavit of 18 November 2025, Mr Love drew the Court's attention to correspondence that was sent by the applicants' legal representatives to the respondents' legal representatives on 22 October 2025. Mr Love says that he does not consent to that correspondence being admitted into evidence or being considered by the Court on the basis that it is subject to without prejudice privilege. It is unnecessary to reach any views about the veracity of that claim as I have not taken the correspondence into account in any event.

39    A further claim of without prejudice privilege was made by the respondents in relation to a letter that was sent by the respondents' legal advisers to the applicants' lawyers on 6 October 2025. The Court was initially provided with an unredacted copy of that letter as an annexure to Mr Love's first affidavit. However, I did not read the unredacted version of that letter and only had regard to a redacted version upon which the applicants ultimately relied.

40    Having identified the evidence on which the parties rely, it is now convenient to consider whether the applicants have established that there is a serious question to be tried or a prima facie case, and that the balance of convenience and justice favours the granting of an injunction.

Is there a serious question to be tried?

41    As I have already said, the applicants make various claims, including claims against several individuals, who are the third to seventh respondents. However, it is only necessary to refer to the claims made against the SMS respondents as it is the SMS respondents that the applicants seek to restrain on an interlocutory basis.

42    Mr Love makes two relevant claims, while Turton makes only one.

43    In broad terms, Mr Love claims that the SMS respondents took 'adverse action' against him and thereby contravened paras (a) and (b) of s 340(1) of the Fair Work Act. He also claims that the SMS respondents 'victimised' him and thereby contravened s 1317AC(1) of the Corporations Act, and separately, that the SMS respondents thereby also engaged in detrimental conduct, for the purposes of s 1317AD(1) of the Corporations Act.

44    Turton claims only that the SMS respondents took 'adverse action' against it and that they thereby contravened s 340(2) of the Fair Work Act.

45    I will deal first with the question of whether there is a prima facie case in relation to Mr Love's claims.

Mr Love's claims

46    I will commence by dealing with Mr Love's claim that the SMS respondents took 'adverse action' against him and thereby contravened s 340(1) of the Fair Work Act.

Mr Love's Fair Work Act claim

47    Pursuant to s 340(1) of the Fair Work Act, a person must not take 'adverse action' against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

48    The circumstances in which a person will be found to have taken 'adverse action' against another person are set out in a table in s 342(1) of the Fair Work Act. Mr Love relies on Item 3 of that table. Item 3 is relevantly concerned with 'principals' who have entered into a contract for services with an 'independent contractor', and who then engage in certain conduct against the independent contractor or against a person who was employed or engaged by that independent contractor.

49    There is no real dispute that SMS UK was a 'principal', for the purposes of Item 3 in s 342(1), or that it entered into a contract for services with Turton as an independent contractor. So much is made clear by the Services Agreement.

50    However, it is less clear whether SMS is also a 'principal'. In that regard, the cover page of the Services Agreement refers to the 'Company' with whom Turton contracted as 'Structural Monitoring Systems plc (ACN 067 556 245)'. Mr Love contends that although only SMS UK is expressly referred to by name, both SMS UK and SMS are parties because it is SMS's Australian Company Number or 'ACN' that was used on the cover page, not SMS UK's ACN. Mr Love also relies on the operative provisions of the Services Agreement and, in particular, those that record the existence of an agreement that Mr Love will provide executive services to the 'Company' on behalf of Turton. Mr Love draws attention to the word 'Company' because it is defined in the Services Agreement to mean 'Structural Monitoring Systems plc ACN 067 556 245'.

51    The respondents did not seriously contest Mr Love's contentions in this respect. Accordingly, I will proceed on the basis that there is a prima facie case that both SMS respondents entered into the Services Agreement with Turton, and that they were therefore 'principals' for the purposes of Item 3 in s 342(1) of the Fair Work Act.

52    There is no dispute that Mr Love was employed or engaged by Turton for the purposes of Item 3 in s 342(1).

53    It is in those circumstances that Mr Love claims that the SMS respondents engaged in some or all of the following conduct:

(a)    refusing or otherwise failing to provide to the applicants the full unredacted investigation report of the workplace investigator dated 17 September 2025;

(b)    excluding Mr Love from attending or participating in the meeting of SMS UK's board on 25 September 2025;

(c)    excluding Mr Love from the premises at which he performs work;

(d)    cancelling Mr Love's company-issued credit card without notice;

(e)    proposing to terminate the Services Agreement entered into between the applicants and the SMS respondents on 4 March 2023;

(f)    proposing to remove Mr Love as director, Executive Director and Chief Executive Officer of SMS UK;

(g)    proposing to remove Mr Love as director, Executive Director and Chief Executive Officer of SMS;

(h)    threatening to publish, an ASX announcement in the unamended form annexed to the Georgi Affidavit and marked Annexure 'GEG-5';

(i)    publishing an ASX announcement in relation to these proceedings in the form annexed to the Giorgi Affidavit and marked Annexure 'GEG-10';

(j)    threatening to make statements to shareholders of SMS UK in relation to these proceedings in the form of a 'draft Q&A script' for shareholders dated 17 October 2025, in the form annexed to the Giorgi Affidavit and marked Annexure 'GEG-12';

(k)    continuing to refuse to provide Mr Love with the information and documents necessary to perform his roles, and continued refusal to permit the Mr Love to attend any board meetings of the SMS respondents;

(l)    failing to pay Mr Love outstanding fees due to him under the Services Agreement;

(m)    failing to put to shareholders, and recommend, the proposal to grant Mr Love 1,500,000 shares as previously endorsed by the board of SMS UK; and

(n)    threatening to enforce an indemnity in favour of SMS UK against Turton for all costs incurred in relation to the proceedings under cl 16(c) of the Services Agreement.

54    At the hearing of the application for an interlocutory injunction, senior counsel for the applicants advised the Court that the conduct referred to in paras (a) to (g) above is alleged to have taken place before the commencement of these proceedings (the pre-commencement conduct), and that the conduct referred to in paras (h) to (n) is alleged to have taken place after the proceedings were commenced (the post-commencement conduct). It should be noted that Annexure 'GEG-5', referred to in para (h) above is in fact an amended form of an ASX announcement, with proposed amendments inserted as tracked changes. No unamended form of the ASX announcement was annexed to the Giorgi Affidavit.

55    Counsel for the respondents did not suggest that there is no serious question to be tried about whether this conduct occurred. Further, it was not suggested that the applicants had failed to establish that there is a prima facie case that the alleged conduct is to be attributed to both SMS respondents as corporate entities. Indeed, neither party sought to draw any distinction between the conduct or relevant states of mind of the SMS respondents or their respective boards of directors. For this reason, I have taken the same approach.

56    Mr Love alleges that by engaging in the conduct at [53] of these reasons, the SMS respondents took 'adverse action' against him, for the purposes of Items 3(b) and 3(c) of the table in s 342(1) of the Fair Work Act. In that regard, if a principal injures an independent contractor in relation to the terms and conditions of a contract for services (Item 3(b)) or alters the position of the independent contractor to the independent contractor's prejudice (Item 3(c)), then the principal will have engaged in 'adverse action' against the independent contractor or a person employed or engaged by the independent contractor. On the assumption the alleged conduct referred to at [53] occurred, there is no dispute that there is a serious question to be tried about whether that conduct would amount to adverse action for the purposes of Items 3(b) and 3(c) of the table in s 342(1).

57    A person will contravene s 340(1) if they take 'adverse action' against another person for one or more of the reasons set out in paras (a) and (b) of s 340(1). Section 340(1)(a) is concerned with having, exercising (or not exercising), or proposing to exercise (or proposing not to exercise), 'workplace rights'. Section 340(1)(b) is concerned with preventing the exercise of a 'workplace right'. I will return to discuss the concept of 'workplace rights' later in these reasons. However, it is necessary to first say something about ss 360 and 361 of the Fair Work Act.

58    Section 360 of the Fair Work Act provides that a person takes action for a particular reason if the reasons for the action include that reason. Therefore, the reasons in paras (a) and (b) of s 340(1) need not be the only reasons why a person takes 'adverse action' against another person. Further, if, in an application in relation to a contravention of s 340, it is alleged that a person took, or is taking, action for a reason in paras (a) and (b) of s 340(1), it is presumed that the action was, or is being, taken for that reason, unless the person alleged to have taken the action proves otherwise: s 361(1).

59    The parties are in dispute about the extent to which the Court may have regard to the existence of the presumption in s 361(1). On the one hand, the respondents point to s 361(2), which provides that the presumption in s 361(1) 'does not apply in relation to orders for an interim injunction'. On the other hand, the applicants rely on what was said in Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340 at [69]. In that case, Ryan J construed a predecessor of s 361(2) and concluded that on an application for an interim or interlocutory injunction, it prevented the Court from finding solely on the basis of the presumption that a respondent's conduct was for a proscribed reason or for reasons that included a proscribed reason. However, his Honour said that he did not think that the provision prevented the Court from having regard to the availability of the presumption in the final determination of the application in assessing whether there is a serious issue to be tried.

60    As Thawley J noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Absolute Commissioning Group Pty Ltd [2024] FCA 805 at [63], the views of Ryan J have been applied in many subsequent decisions. However, the law has become 'somewhat unsettled' (Transport Workers' Union of Australia v Qantas Airways Limited (No 4) [2021] FCA 1602 at [120]), largely because of views that have been expressed by Snaden J in Australian Workers' Union v Chemring Australia Pty Ltd [2019] FCA 750 (Chemring Australia) at [45]-[48]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v O-I Operations (Australia) Pty Ltd [2019] FCA 1272 (AMWU v O-I Operations) at [48]-[53]; and Dixon v United Workers Union [2023] FCA 1526 at [73].

61    In Chemring Australia, Snaden J said the following (at [48]):

With great respect to [Ryan J] - an eminent and highly-respected judge, renowned for his expertise in the field of industrial law - I am unable to reconcile what is said at [69] of Nixon with what appear, to me, to be the plain words of s 361(2). To have, in the process of assessing whether there is a prima facie case for interim injunctive relief, regard to the existence of the reverse onus for which s 361(1) provides is, I think, to proceed as though s 361(1) 'appl[ies]' in that context. Yet s 361(2) says that it doesn't.

62    Snaden J observed in AMWU v O-I Operations at [50] that no submission was put in Chemring Australia that Nixon and the cases that have followed it ought not be followed. Accordingly, his Honour proceeded on the assumption that Nixon expressed the law. However, a submission was put in AMWU v O-I Operations that Nixon should not be followed. In those circumstances, Snaden J declined to follow Nixon, and said (at [52]):

The meaning of the words of s 361(2) is clear. To have, in the process of assessing whether there is a prima facie case for interim injunctive relief, regard to the existence of the reverse onus for which s 361(1) provides is to proceed as though s 361(1) 'appl[ies]' in that context. Yet s 361(2) says that it doesn't. The applicants cannot, at this juncture, draw any strength from the existence of the reverse onus of proof to which s 361(1) gives effect.

63    At the risk of adding to the unsettled nature of the law, it seems to me that the effect of s 361(2) is that an applicant seeking an interim injunction to prevent, stop or remedy the effects of a contravention of the Fair Work Act bears the onus of establishing, on the basis of evidence and without the assistance of the presumption in s 361(1), that there is a serious question to be tried that such a contravention is threatened or is actually occurring. The evident legislative intention is to preclude the possibility of potentially disruptive and intrusive orders being made based on presumed contraventions of the Fair Work Act.

64    However, once a Court has been persuaded that there is a serious question to be tried that there is a relevant threatened or actual contravention, having regard to the evidence and without recourse to any presumption, s 361(2) does not then prevent the Court, in assessing the apparent strength of an applicant's case at trial, from having regard to the fact that an applicant for an interim injunction will ultimately be able to take advantage of the presumption in s 361(1) at trial. Provided there is a prima facie case based on the evidence, having regard to the availability of the presumption in this way does not involve applying s 361(1), contrary to s 361(2), and does not undermine the policy of the provision.

65    As I have already said, a person contravenes s 340(1) of the Fair Work Act if they take adverse action against another person because that other person has a 'workplace right', or they have, or have not, exercised a 'workplace right'.

66    The phrase 'workplace right' is defined in s 341. For the purposes of this matter, it is only necessary to refer to part of that definition:

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

…

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

…

(b)    court proceedings under a workplace law or workplace instrument;

…

67    In relation to the pre-commencement conduct, the applicants rely on s 341(1)(a). The applicants' case is that they were 'entitled to the benefit of … a workplace law …' and contend that the relevant 'workplace law' are the provisions in Pt 9.4AAA of the Corporations Act.

68    In relation to the post-commencement conduct, the applicants rely on s 341(1)(b). The applicants' case is that they were 'able to initiate, or participate in, a process or proceedings under a workplace law', namely, 'court proceedings under a workplace law' (s 341(2)(b)), where the relevant 'workplace law' is the Fair Work Act.

69    The phrase 'workplace law' is defined in s 12 of the Fair Work Act, relevantly, to mean:

(a)    this Act; or

…

(d)    any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

70    There is obviously no question that the Fair Work Act is a 'workplace law'. In the context of Mr Love's application for an interlocutory injunction, he was able to initiate or participate in court proceedings under the Fair Work Act. The current proceedings are an example. There is, however, a real question about whether Pt 9.4AAA of the Corporations Act, or any of its provisions, is also a 'workplace law' under s 12 of the Fair Work Act.

71    I will pause to note that up to this point I have analysed Mr Love's claims under the Fair Work Act and have identified the issues that appear to be in dispute in the context of this application for an interlocutory injunction. My understanding is that the applicants' case in relation to the pre-commencement conduct relies on paras (a) and (b) of s 340(1), whereas in relation to the post-commencement conduct, only s 340(1)(a)(ii) is relied upon. This understanding is based on what I was told by the applicants' senior counsel at the hearing of the application for an interlocutory injunction: transcript page 11. It is also based on the most recent version of the originating application, which is entitled the 'Second Further Amended Originating Application'.

72    Based on my analysis, the critical issues that emerge are:

(a)    In relation to the pre-commencement conduct, is there a prima facie case that Pt 9.4AAA of the Corporations Act or any relevant provision in that part, is a 'workplace law' as defined in s 12 of the Fair Work Act?

(b)    In relation to the post-commencement conduct, is there a prima facie case that the SMS respondents engaged in some or all of the post-commencement conduct because the applicants exercised a workplace right, for the purposes of s 340(1)(a)(ii) of the Fair Work Act?

73    I will now deal with each of those issues in turn.

Are the provisions in Pt 9.4AAA of the Corporations Act a 'workplace law' as defined in s 12 of the Fair Work Act?

74    Part 9.4AAA of the Corporations Act is entitled 'Protection for whistleblowers'. It contains several provisions that identify 'disclosures' that qualify for protection under Pt 9.4AAA: s 1317AA-1317AAD. Other provisions provide various protections for the making of such disclosures, including by protecting the identity of a discloser (s 1317AAE and s 1317AG), by protecting a discloser from various forms of liability (s 1317AB), and by conferring power on courts to make remedial orders, including compensation (s 1317AD and s 1317AE). 'Victimisation' is prohibited by subs (1) and (2) of s 1317AC.

75    It is necessary to set out some of those provisions, to the extent they are relied upon by Mr Love:

1317AA    Disclosures qualifying for protection under this Part

…

Disclosure to eligible recipients

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

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

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

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

…

Disclosable matters

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

(a)    the regulated entity; or

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

(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.

76    Mr Love relies on s 1317AA(2). He says that he is an individual who qualifies for protection under Pt 9.4AAA because he is an 'eligible whistleblower' in relation to a 'regulated entity'. He also says that he made various disclosures to 'eligible recipients' in relation to the regulated entity and that he had reasonable grounds to suspect that the information the subject of those disclosures concerned an 'improper state of affairs or circumstances', in relation to the SMS respondents: s 1317AA(4).

77    Sections 1317AAA, 1317AAB and 1317AAC contain various relevant definitions:

1317AAA    Meaning of eligible whistleblower

An individual is an eligible whistleblower in relation to a regulated entity if the individual is, or has been, any of the following:

(a)    an officer of the regulated entity;

(b)    an employee of the regulated entity;

(c)    an individual who supplies services or goods to the regulated entity (whether paid or unpaid);

(d)    an employee of a person that supplies services or goods to the regulated entity (whether paid or unpaid);

(e)    an individual who is an associate of the regulated entity;

(f)    for a regulated entity that is a superannuation entity:

(i)    an individual who is a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993), custodian (within the meaning of that Act) or investment manager (within the meaning of that Act) of the superannuation entity; or

(ii)    an officer of a body corporate that is a trustee, custodian or investment manager of the superannuation entity; or

(iii)    an employee of an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii); or

(iv)    an individual who supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid); or

(v)    an employee of a person that supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid);

(g)    a relative of an individual referred to in any of paragraphs (a) to (f);

(h)    a dependant of an individual referred to in any of paragraphs (a) to (f), or of such an individual's spouse;

(i)    an individual prescribed by the regulations for the purposes of this paragraph in relation to the regulated entity.

1317AAB    Meaning of regulated entity

Each of the following is a regulated entity:

(a)    a company;

(b)    a corporation to which paragraph 51(xx) of the Constitution applies;

(c)    an ADI (within the meaning of the Banking Act 1959), an authorised NOHC (within the meaning of that Act) or a subsidiary of an ADI or an authorised NOHC;

(d)    a general insurer (within the meaning of the Insurance Act 1973), an authorised NOHC (within the meaning of that Act) or a subsidiary of a general insurer or an authorised NOHC;

(e)    a life company (within the meaning of the Life Insurance Act 1995), a registered NOHC (within the meaning of that Act) or a subsidiary of a life company or a registered NOHC;

(f    a superannuation entity or a trustee of a superannuation entity;

(g)     an entity prescribed by the regulations for the purposes of this paragraph.

1317AAC    Meaning of eligible recipient

(1)    Each of the following is an eligible recipient in relation to a regulated entity that is a body corporate:

(a)    an officer or senior manager of the body corporate or a related body corporate;

(b)    an auditor, or a member of an audit team conducting an audit, of the body corporate or a related body corporate;

(c)    an actuary of the body corporate or a related body corporate;

(d)    a person authorised by the body corporate to receive disclosures that may qualify for protection under this Part.

(2)    Each of the following is an eligible recipient in relation to a regulated entity that is a superannuation entity:

(a)    an officer of the superannuation entity;

(b)    an auditor, or a member of an audit team conducting an audit, of the superannuation entity;

(c)    an actuary of the superannuation entity;

(d)    an individual who is a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity;

(e)    a director of a body corporate that is the trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity;

(f)    a person authorised by the trustee or trustees (within the meaning of the Superannuation Industry (Supervision) Act 1993) of the superannuation entity to receive disclosures that may qualify for protection under this Part.

(3)    The regulations may prescribe persons or bodies that are eligible recipients in relation to all regulated entities, or in relation to a class or classes of regulated entities.

(4)    Subsections (1), (2) and (3) do not limit each other.

78    Mr Love contends that he is an 'eligible whistleblower in relation to a regulated entity' within the meaning of s 1317AAA because he is an officer of a 'regulated entity': s 1317AAA(a). Mr Love says that SMS is a 'regulated entity' within the meaning of s 1317AAB because it is a 'company': s 1317AAB(a). He also says that SMS UK is a 'regulated entity' within the meaning of s 1317AAB because it is a corporation to which s 51(xx) of the Constitution applies: s 1317AAB(b). For the purposes of this application, the respondents do not take issue with those contentions.

79    Mr Love also says that he made relevant disclosures to 'eligible recipients', namely officers or senior managers of the SMS respondents (s 1317AAC(1)(a)), and lawyers purporting to act for the boards of the SMS respondents (s 1317AAC(1)(d)).

80    The upshot is that Mr Love contends that he had a 'workplace right' because he was entitled to the benefit of the various provisions to which I have just referred, and that he had the consequent right to make disclosures qualifying for protection under Pt 9.4AAA of the Corporations Act. It is against this background that he alleges that when the SMS respondents engaged in the pre-commencement conduct, they contravened paras (a) and (b) of s 340(1) by taking 'adverse action' because of each, or any one or more, of the following reasons, or for reasons that included any one or more of the following reasons:

(a)    Mr Love had a workplace right to make disclosures qualifying for protection under Pt 9.4AAA of the Corporations Act;

(b)    Mr Love had exercised that right; and/or

(c)    to prevent Mr Love from exercising, or alternatively further exercising, that right.

81    It may be seen that an essential component of Mr Love's case in relation to the pre-commencement conduct is that Pt 9.4AAA of the Corporations Act, and its provisions, is a 'workplace law'.

82    In The Environmental Group Ltd v Bowd [2019] FCA 951 (Bowd) at [134], Steward J had occasion to consider an argument that Pt 9.4AAA of the Corporations Act was a 'workplace law' as defined in s 12 of the Fair Work Act. His Honour noted that para (d) of the definition of 'workplace law' in s 12 of the Fair Work Act is concerned with 'any other law of the Commonwealth' and concluded that the word 'law', when used in that context, referred not to another 'Act', but to a 'rule'. In reaching that conclusion, Steward J had regard to the following passage in Tattsbet Limited v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [102]:

The presently critical aspect of para (d) of the definition of 'workplace law' is the term 'law of the Commonwealth'. In Clyde Engineering Company Ltd v Cowburn (1926) 37 CLR 466 at 497, Isaacs J said:

[T]he 'law' is not the piece of parchment or paper, nor is it the letters and words and figures printed upon the material. It consists of the 'rule' resolved upon and adopted by the legislative organ of the community as that which is to be observed, positively and negatively, by action or inaction according to the tenor of the rule adopted. Constitutions may prescribe, and do prescribe, how that rule shall be arrived at and how evidenced. But 'the law' is essentially the rule itself, and not the material evidence of it.

See also Momcilovic v The Queen (2011) 245 CLR 1 at [226]-[233] per Gummow J.

83    Steward J said at [135], that it followed from the approach in Tattsbet that 'applicable workplace laws are rules which regulate the relationships between employees and employers.' His Honour then said that Pt 9.4AAA is not, and that none of the provisions in that Part are a law that regulates, or comprises rules that regulate, relationships between employees and employers, before concluding at [140] that:

[t]o secure the benefit of the protections afforded by Pt 9.4AAA, the disclosure must qualify for protection by satisfying the requirements of s 1317AA of the [Corporations Act]. I consider these in more detail below. For the moment, it may be noted that the provisions of Pt 9.4AAA are not only concerned with employees. They extend to disclosures made by suppliers of goods and services to a company, and to employees of such suppliers, which have been made to ASIC, to the company's auditor, to a person authorised to receive such disclosures or to certain senior identified executives. Their object is not the regulation of relations between employees and employers. Rather, their object is to encourage compliance with the terms of the [Corporations Act] by giving statutory protection to 'whistleblowers'. It may be accepted that the provision recognises that employees of a company are likely to be such 'whistleblowers', and thus expressly refers to employees and provides for a right of reinstatement. But what is being regulated is not that employee's relationship with the company, but rather, and ultimately, that company's potential contravention of provisions of the [Corporations Act]. The relevance of an employee to the provisions contained in Pt 9.4AAA is to that person in his or her capacity as a whistleblower, who perhaps also happens to be an employee, rather than as someone employed by a company. As was the case in Australian Licenced Aircraft Engineers Association [v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386], s 1317AA and Pt 9.4AAA more generally, deploy 'the status of an employer or employee' for the 'imposition of duties serving other ends', namely the regulation of corporate behaviour.

(emphasis added)

84    In the applicants' written submissions, Mr Love indicated that he intends arguing at trial that Bowd is wrong and that it should not be followed. However, Mr Love did not explain why Bowd was wrongly decided. Instead, he appeared to suggest that it was enough for him to contend that Bowd was wrongly decided to demonstrate that there was a serious question to be tried.

85    Mr Love did refer to two decisions of this Court, which he said supported his contention that it was at least arguable that Pt 9.4AAA of the Corporations Act is a 'workplace law'. Those decisions were PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 at [17] (Rangiah and Charlesworth JJ) and Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 at [51], [54].

86    In my view, those cases do not demonstrate that it is arguable that Bowd was wrongly decided, and do not otherwise assist Mr Love.

87    PIA was concerned with s 341(1)(c)(ii) of the Fair Work Act, which provides that a person who is an employee has a 'workplace right' if they are able to make a complaint or inquiry in relation to his or her employment. In that context, Rangiah and Charlesworth JJ noted at [16] that:

[t]he 'workplace rights' under paras (a), (b) and (c)(i) of s 341(1) are confined to rights, roles and responsibilities under, or arising from, workplace laws and workplace instruments. In contrast, s 341(1)(c)(ii) is not so confined, providing that an employee has a workplace right if the employee, 'is able to make a complaint or inquiry in relation to his or her employment'. There are three obvious potential sources of an employee's ability to make complaints which fall outside s 341(1)(a), (b) and (c)(i), but within (c)(ii). Those sources are legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law.

(emphasis added)

88    It is against that background that their Honours then said, in the passage on which Mr Love relies at [17], that:

[i]n the first category, there are a number of legislative provisions of general application that encompass the making of complaints by employees in relation to their employment, but are not obviously identifiable as workplace laws. Examples are s 36(1) of the Privacy Act 1988 (Cth) (complaints about breaches of privacy) and s 1317AA of the Corporations Act 2001 (Cth) (disclosures by whistleblowers).

(emphasis added)

89    In my view, their Honours were not purporting to say anything about the meaning of the phrase 'workplace laws', much less anything about whether Pt 9.4AAA of the Corporations Act is, or includes, such a law. The point that was being made was that s 341(1)(c)(ii) of the Fair Work Act, on which Mr Love does not rely, has a wider operation than s 341(1)(a) and s 341(1)(b), because unlike s 341(1)(c)(ii), those provisions are concerned with rights, roles and responsibilities under, or arising from, workplace laws and workplace instruments.

90    In the other case to which Mr Love referred, Gillham, an application was made for orders summarily dismissing claims that the applicant in that case was the subject of adverse action contrary to s 340 of the Fair Work Act. It was argued in that case that certain provisions of the Equal Opportunity Act 2010 (Vic) were not a 'workplace law' for the purpose of s 12 of the Fair Work Act. Specifically, it was contended that the meaning and application of 'workplace law' is restricted to common law employees, and that the applicant in that case was not such an employee.

91    In the passage of her Honour's reasons (at [51]) on which Mr Love relies, Mortimer CJ said the following:

For [the respondents'] contentions to be so clearly correct that the Court can conclude the applicant's claims have no reasonable prospects of success, I consider they must persuade the Court that:

(a)    the terms 'employer' and 'employee' in the definition of 'workplace law' in s 12 mean a common law employment relationship; and

(b)    if they have this meaning, that the only tenable construction of (d) in the definition of 'workplace law' is that the other law must be one which only regulates the relationships of common law employees and employers, and not one - such as s 18 of the [Equal Opportunity Act] - that also regulates other workplace relationships, and other non-workplace relationships; or

(c)    alternatively, that the other law is a workplace law only to the extent that it regulates the relationship of common law employees and employers, and not to the extent that it also regulates other workplace relationships.

92    Ultimately, Mortimer CJ concluded that the respondents had not made good the second or third of these submissions, such that the applicant's case had no reasonable prospects of success.

93    A conclusion that it is arguable that a 'workplace law' is one that regulates other workplace relationships in addition to relationships of common law employees and employers, which was reached in the context of an application for summary dismissal, does not support Mr Love's argument that Pt 9.4AAA of the Corporations Act is a 'workplace law', or that it contains such laws.

94    I am required to consider the question of whether there is a serious question to be tried in light of the well-established principle that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong: Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J, as his Honour then was); Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; (2017) 255 FCR 96 at [93]; and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [2]-[3] (Allsop CJ).

95    In circumstances in which I have not been referred to any authority that suggests that the reasoning in Bowd should not be applied, and where I am not persuaded that Bowd is plainly wrong, I am of the view that I should therefore proceed on the basis that there is no serious question to be tried that Pt 9.4AAA of the Corporations Act is a 'workplace law' for the purposes of s 12 of the Fair Work Act. Mr Love's mere intention to challenge the correctness of Bowd does not, or itself, elevate the merits of his case to a level at which it may be concluded that there is a serious question to be tried.

96    It follows from this that I am of the view that there is no prima facie case that by engaging in the pre-commencement conduct, the SMS respondents contravened either of paras (a) or (b) of sub-section 340(1) of the Fair Work Act.

97    It is then necessary to focus on the claim that each or either of the SMS respondents engaged in some or all of the post-commencement conduct for one or more of the reasons in s 340(1)(a)(ii).

Is there a prima facie case that the SMS respondents engaged in some or all of the post-commencement conduct because Mr Love exercised a workplace right for the purposes of s 340(1)(a)(ii) of the Fair Work Act?

98    In my view, Mr Love has established that there is a prima facie case that the SMS respondents engaged in at least some of the post-commencement conduct because Mr Love had exercised a right to initiate, or participate in, court proceedings under the Fair Work Act, for the purposes of s 340(1)(a)(ii).

99    At (h) to (n) of [53] of these reasons, I have reproduced the post-commencement conduct on which Mr Love relies. The first of that conduct is 'threatening to publish, an ASX announcement in the unamended form that is annexed to Mr Giorgi's affidavit dated 17 October 2025 and marked Annexure 'GEG-5'. As I have already noted, Annexure 'GEG-5' is in fact an amended form of an ASX announcement with proposed amendments inserted as tracked changes, and no unamended form of that document was annexed to the Giorgi Affidavit.

100    Pursuant to s 342(2)(a) of the Fair Work Act, adverse action includes 'threatening to take action covered by the table in subsection (1)'. As the Full Court explained in Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; (2020) 277 FCR 223 at [24], the expression of an intention to do harm amounts to a threat, and a threat is conduct which, viewed objectively, will induce a belief that it will be carried into effect.

101    Relevantly, a threat to take action will be adverse action if it is a threat to bring about the effect of Item 3 in s 342(1): Molina at [22]. Under Item 3, threatening to alter the position of Turton, as an independent contractor, to Turton's prejudice, would amount to taking adverse action against Mr Love, as a person employed or engaged by Turton.

102    In an email dated 14 October 2025, the respondents' solicitors wrote to Mr Giorgi and said:

In the meantime, we note that Structural Monitoring Systems PLC is a listed company and is required to update the market. As a result, we request that your clients urgently review and provide any comments on the attached draft ASX announcement by 9pm this evening (AEDT). Our client intends to make the announcement tomorrow morning.

(emphasis added)

103    In the draft announcement, reference was made to the fact that the applicants had commenced these proceedings. The announcement went on to state that the applicants sought injunctive relief to restrain the termination of their engagement by the SMS respondents, and it was further noted that allegations had been made that the SMS respondents had subjected the applicants to adverse action in contravention of the Fair Work Act. However, the draft announcement also referred to the fact that a formal complaint had been made by the Director of People and Culture of AEM, that the complaint made allegations of 'serious workplace issues', that an independent third party with expertise in employment law had conducted an investigation, and that the investigation had 'substantiated the complaint'.

104    In my view, there is a prima facie case that the email of 14 October 2025 amounted to a threat to alter the position of Turton, to Turton's prejudice. It is at least arguable that by providing Mr Giorgi with a draft of the ASX announcement, with a deadline by which to provide 'any comments', and a further indication that the SMS respondents intended to 'make the announcement tomorrow morning', the SMS respondents engaged in conduct which, viewed objectively, was capable of inducing a belief on the part of the applicants that the announcement would be made. Having particular regard to the references in the draft announcement to the nature of the 'formal complaint', and to the fact that a person with relevant expertise had 'substantiated the complaint', there is a prima facie case that the email and the draft announcement together amounted to an expression of an intention of doing harm to Mr Love and to thereby alter the position of Turton, as his employer, to its disadvantage. Having regard to Item 3 in s 342(1), read with s 324(2)(a), and bearing in mind the interlocutory nature of this application, it is therefore arguable that this was conduct that is capable of amounting to taking adverse action against Mr Love.

105    As I have already explained, a person must not take adverse action against another person because, amongst other reasons, the other person has exercised a workplace right (s 340(1)(a)(ii)), including a workplace right to commence proceedings under the Fair Work Act: s 341(1)(b), read with s 341(2)(b). That the SMS respondents, by their legal representatives, sent the email of 14 October 2025 and the draft announcement for reasons that included the fact that the applicants had commenced these proceedings under the Fair Work Act is obvious. The email of 14 October 2025 was sent to Mr Giorgi with the draft announcement because the SMS respondents were of the view that they were required to update the market about the commencement of these proceedings.

106    Having reached this view, based on the evidence, I also take into account the fact that Mr Love would be entitled to rely at trial on the presumption in s 361(1) of the Fair Work Act. In those circumstances, I conclude that this aspect of Mr Love's case has at least some prospects of success. Of course, this is a conclusion reached in the context of an interlocutory hearing and without the benefit of seeing and hearing the witnesses and without having heard full submissions from the parties.

107    It is strictly unnecessary to consider whether there is a prima facie case in relation to any of the other post-commencement conduct. However, having regard to the terms of the interlocutory injunction sought (see [10] of these reasons), which seeks to restrain the SMS respondents from refusing to permit Mr Love to perform his duties, I will deal with one other aspect of the post-commencement conduct.

108    The conduct identified at (k) of [53] of these reasons concerns an allegation that after the commencement of these proceedings, the SMS respondents took adverse action against Mr Love by 'continuing to refuse to provide him with the information and documents necessary to perform his roles, and continued refusal to permit [Mr Love] to attend any board meetings of the [SMS respondents]'. Although not expressed in precisely this way, I understand this to amount to an allegation that the SMS respondents have essentially refused to allow Mr Love to attend to his duties as a director, Executive Chairman and CEO.

109    Although the applicants provided me with a note that identified the evidence relied on to establish that this adverse action took place, I was provided with little assistance in understanding how it was said that by engaging in that conduct, the SMS respondents thereby contravened s 340(1)(a)(ii) of the Fair Work Act. Doing the best I can, it appears that Mr Love's case is that after orders were made following the ex parte application, he was not provided with the minutes of the board meeting held on 25 and 26 September 2025. Mr Love says that he has also not been provided with access to information and documents that are necessary to perform his roles, and he has not received any notice of or materials relating to any further board meetings or any resolutions that have been considered or passed by the board: Mr Love's affidavit affirmed on 18 November 2025 at [29].

110    Mr Love also relies on the evidence of Mr Giorgi in his affidavit of 17 October 2025. In that affidavit, Mr Giorgi refers to a 'draft script', which had been prepared for SMS UK to address potential shareholder queries arising out of any ASX announcement. Amongst other things, the draft script referred to a 'resolution' that had been passed to relieve Mr Love of all of his duties, effective immediately. Based on Mr Giorgi's evidence it appears that the draft script was ultimately amended to remove reference to the existence of any such resolution, and, through their solicitors, the SMS respondents later confirmed that no resolution to temporarily relieve Mr Love of his duties was in fact passed.

111    I am of the view that Mr Love has established that there is a prima facie case that Mr Love has not been attending to the duties that would generally be undertaken by him as a director and the Executive Chairman and CEO of the SMS respondents. Further, it may be inferred that this has occurred because the SMS respondents have effectively refused to allow him to undertake those duties, notwithstanding the confirmation that no resolution to that effect had been formally passed. After all, the SMS respondents are resisting Mr Love's attempts, by these proceedings, to resume undertaking those duties.

112    It is also arguable that by refusing to allow Mr Love to undertake the duties of a director, Executive Chairman and CEO, the SMS respondents have thereby taken adverse action against him as a person employed or engaged by an independent contractor, namely, Turton: Item 3 in s 342(1) of the Fair Work Act. By refusing to allow Mr Love to undertake those duties, it is also arguable that the SMS respondents altered the position of Turton to its prejudice, for the purposes of Item 3(c) of the table in s 342(1), as they are the services Turton contracted to provide to the SMS respondents under the Services Agreement.

113    I am also of the view that it is open to infer that at least one of the reasons why the SMS respondents refused to allow Mr Love to undertake the duties of a director, Executive Chairman and CEO is because he had exercised a workplace right (s 340(1)(a)(ii)) to commence these proceedings under the Fair Work Act: s 341(1)(b), read with s 341(2)(b). In that regard, the draft script was provided to Mr Love's solicitors after the commencement of these proceedings and in anticipation of shareholders asking questions about those proceedings. While it may be accepted for present purposes that no formal resolution was passed by the boards of the SMS respondents to relieve Mr Love of his duties, as the draft script originally suggested, it is open to infer that a less formal decision to that effect was nevertheless taken, and that at least one of the reasons for that decision was that Mr Love had commenced these proceedings.

114    As a result, I conclude that there is a prima facie case that the conduct referred to at (k) of [53] of these reasons constituted a contravention of s 340(1)(a)(ii) of the Fair Work Act.

115    However, it does not follow from these conclusions that Mr Love has satisfied what was described by Gageler CJ, Gordon, Gleeson and Jagot JJ in MZAPC as [23] as a 'condition precedent' to the grant of an interlocutory injunction, namely, that there is 'sufficient colour of right to the final relief' (emphasis added) that he seeks such that an interlocutory injunction should be made in the exercise of the Court's equity jurisdiction. As his senior counsel accepted, Mr Love seeks such an interlocutory injunction in aid only of his final claim for injunctive relief. In that regard, an aspect of the final relief sought is an order that the SMS respondents be restrained, for what is effectively an indefinite period, from taking any step that would see him ceasing to be a director, or Executive Chairman and CEO of the SMS respondents. Plainly, a final order in such broad terms could not be made even if Mr Love were to ultimately succeed in establishing that the SMS respondents contravened s 340(1)(a)(ii) of the Fair Work Act by engaging in all of the post-commencement conduct. The final injunction sought by Mr Love, if made, would go well beyond granting appropriate relief for any such contravention because it would also restrain the SMS respondents from taking steps that Mr Love would have no right to prevent: MZAPC at [24].

116    It also does not mean that an interim injunction should be made under s 545(2)(a) of the Fair Work Act. An interim injunction may be granted under s 545(2)(a) 'to prevent, stop or remedy the effects of a contravention'. However, even if there was a serious question to be tried in relation to each one of Mr Love's claims that the respondents contravened s 340(1)(a)(ii) of the Fair Work Act, the interim injunction that he seeks goes beyond preventing, stopping or remedying, on an interim basis, the effects of any such contraventions. Like the final injunction he seeks, the interim injunction sought by Mr Love to in effect require the SMS respondents to maintain him as director and their Executive Chairman and CEO during the period leading up to trial, on pain of contempt, would also restrain the SMS respondents from taking steps that Mr Love would have no right to prevent.

117    Mr Love also seeks a final order restraining all the respondents from publishing or disseminating the workplace investigator's report or any of its findings, for an unlimited period. However, it is not clear why such an order would be made, even if it was ultimately found, favourably to Mr Love, that the SMS respondents did contravene s 340(1)(a) of the Fair Work Act by engaging in all of the post-commencement conduct.

118    Neither the written submissions filed in support of the ex parte application for an interim injunction, nor those that were filed in support of the application for an interlocutory injunction, elucidated the basis on which it was contended that the Court should make an order restraining the respondents from publishing or disseminating the workplace investigator's report, or any of its findings. However, at the hearing of the application for an interlocutory injunction, senior counsel for the applicants sought to explain the basis on which that order was sought. As I understood the argument, it was contended that publication or dissemination (or threatened publication or dissemination) of the report or its findings would amount to 'adverse action', for the purposes of Item 3 of the table in s 342(1) of the Fair Work Act, as well as 'detrimental conduct', for the purposes of s 1317AC(1) and s 1317AD(1) of the Corporations Act. Accordingly, it appeared to be submitted that such conduct could form the basis of an adverse action claim under s 340(1)(a)(i) of the Fair Work Act, or a victimisation claim under s 1317AC(1) or a claim relying on s 1317AD(1) of the Corporations Act. I will come to Mr Love's Corporations Act claims later in these reasons.

119    When senior counsel was asked to further explain the basis on which these orders were sought, he made the following submission:

The disclosure [that qualifies for protection under Pt 9.4AAA of the Corporations Act] was made. The disclosure related to the conduct of the investigation, and the procedural deficiencies in the investigation and the report, and the actions of the other members of the board in relation to the so-called findings of the report. The response, or a part of the response, that was made to those disclosures was to say, as we put it earlier to Mr Love, 'Look, either you go quietly now, or we're going to publish the report.' So the dissemination of the report was being used explicitly as a inducement to Mr Love to go voluntarily in order to avoid the dissemination of the report. That's how it's all linked together.

120    Accordingly, it was said that injunctive relief was appropriate to prevent the threat of dissemination of the report being carried out. Unfortunately, it was not explained to me how this aspect of the injunctive relief sought related to any of the claims that have actually been made by Mr Love under the Fair Work Act, or how the injunction sought could properly be regarded as a remedy.

121    Even if it were to be assumed that all or any of the conduct referred to at [53] of these reasons constituted a contravention of s 340(1)(a)(ii) of the Fair Work Act, none of that conduct would justify a final injunction being granted in the terms sought by Mr Love. In that regard, it must be remembered that the relevant contravention is taking adverse action because another person has a workplace right. However, the final order sought by Mr Love would effectively immunise the publication and dissemination of the report, or its findings, even if that was to occur for reasons unrelated to whether Mr Love had exercised a workplace right. Once again, this means that the practical effect of the final order sought would be to restrain the SMS respondents from taking steps that Mr Love would have no right to prevent based on the claims that he makes in these proceedings.

122    The same conclusion must be reached to the extent that Mr Love seeks an interim injunction under s 545(2)(a) of the Fair Work Act. As I have already said, an interim injunction may be granted under that provision 'to prevent, stop or remedy the effects of a contravention'. However, no attempt was made to explain how an interim injunction restraining publication or dissemination of the workplace investigator's report would prevent, stop or remedy the effects of the alleged contraventions on which Mr Love relies. Even if it were to be assumed that restraining the respondents in this way would prevent, stop or remedy the effects of the contraventions, the interim injunction that Mr Love seeks would go beyond achieving those objectives because it would have the effect of restraining the respondents from engaging in that conduct pending trial, irrespective of whether it amounted to a contravention of the Fair Work Act.

123    In my view, these conclusions are a sufficient reason, in and of themselves, to refuse to make the interlocutory orders sought by Mr Love based on his claims that by engaging in the post-commencement conduct, the SMS respondents contravened s 340(1)(a)(ii) of the Fair Work Act.

124    Having dealt with Mr Love's claims under the Fair Work Act, I will now consider whether there is a serious question to be tried in relation to his claims under the Corporations Act.

Mr Love's Corporations Act claim

125    Mr Love claims that the SMS respondents engaged in 'victimisation' and that they thereby contravened s 1317AC(1) of the Corporations Act.

126    Section 1317AC(1) of the Corporations Act is in the following terms:

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.

Note 1: Failure to comply with this subsection is an offence (see subsection 1311(1)).

Note 2: This subsection is also a civil penalty provision (see section 1317E). For relief from liability to a civil penalty relating to this subsection, see section 1317S.

127    Before examining Mr Love's claim that he was subjected to victimisation, it is necessary to say something about the connection between that claim and the relief sought on an interlocutory basis.

128    Section 1317AC(1) is a civil penalty provision: s 1317E(3). The remedies that are available upon proof that a person contravened s 1317AC(1) are, relevantly, a declaration of contravention (s 1317E), a pecuniary penalty order (s 1317G) and a compensation order (s 1317H). Pursuant to s 1317J, only the Australian Securities and Investments Commission and the relevant corporation in respect of which the contravention occurred may apply for a declaration of contravention, a pecuniary penalty order or a compensation order. However, where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute a contravention of s 1317AC(1), it is open to a person whose interests have been, are, or would be affected by the conduct, to apply for an injunction under s 1324(1), and for an interim injunction under s 1324(4) of the Corporations Act. Accordingly, to the extent that Mr Love seeks an interlocutory injunction based on a claim that the SMS respondents contravened s 1317AC(1), he relies on s 1324(4).

129    After the hearing of his application for an interlocutory injunction, Mr Love amended his originating application. The purpose of the amendments was to make it clear that in addition to a claim that the SMS respondents contravened s 1317AC(1), Mr Love also sought to rely on s 1317AD and s 1317AE. To the extent those provisions are relevant, they provide as follows:

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.

...

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;

…

(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;

130    It may be seen that the elements of 'victimisation' that appear in s 1317AC(1) are to all intents and purposes the same as the elements that are necessary to be established for a court to make an order under s 1317AE, in accordance with s 1317AD(1). However, before moving on to consider those claims it is necessary to note one important difference.

131    Section 1317AD(2B) provides that where a person seeks an order under s 1317AE in relation to another person, the person seeking the order bears an onus of, relevantly, 'adducing or pointing to evidence that suggests a reasonable possibility of the matters' in s 1317AD(1)(a). Once that onus is discharged, the person who is alleged to have engaged in detrimental conduct must prove that the claim is not made out. There is, however, no equivalent to s 361(2) of the Fair Work Act that precludes the application of that presumption in the context of applications for interim injunctions.

132    On the other hand, in a claim that a person has been victimised contrary to s 1317AC(1), there is no reversal of the onus of proof. Accordingly, the burden of proof is on Mr Love: Bilal v Ampol Limited [2025] FCA 1189 at [33], citing Reiche v Neometals Ltd (No 2) [2025] FCA 125 at [40]. This perhaps reflects the fact that victimisation is a criminal offence that can also attract a civil penalty: see s 1317AF.

Is there a serious question to be tried that the SMS respondents contravened s 1317AC(1)?

133    As I have already said, there is no real dispute in the context of this application that there is a prima facie case that one or both of the SMS respondents engaged in the conduct on which Mr Love relies in support of his claim that he was victimised, which conduct is essentially reproduced at [53] of these reasons. It was also not suggested that there was no serious question to be tried about whether that conduct caused a detriment to Mr Love, for the purposes of the definition of 'detriment' in s 1317ADA.

134    However, there is no direct evidence that the SMS respondents relevantly believed or suspected that Mr Love may have made, that he proposed to make or that he could make a disclosure that qualified for protection under Pt 9.4AAA of the Corporations Act (s 1317AC(1)(c)), or, in particular, that such belief or suspicion was the reason, or part of the reason, for the conduct relied upon (s 1317AC(1)(d)).

135    Both paras (c) and (d) of s 1317AC(1) focus on the state of mind of the 'first person'. For the purposes of s 1317AC(1)(c), a Court must be satisfied that when the 'first person' engaged in detrimental conduct they held a belief or suspicion that the person alleged to have been victimised, or any other person, made, may have made, proposes to make or could make a disclosure that qualifies for protection under Pt 9.4AAA: Bilal at [32]. Under s 1317AC(1)(d) a belief or suspicion is unlikely to be 'part of the reason' for engaging in detrimental conduct where it is incidental and is not a substantial and operative factor in the reason for engaging in the detrimental conduct: Bilal at [31], citing Reiche at [95]-[100]; and Jackson v Heart Research Institute Ltd [2025] FCA 301 at [227].

136    In the absence of any direct evidence to establish these elements, Mr Love's case must depend on the drawing of inferences. As I understood it, Mr Love submits that for the purposes of considering whether there was a serious question to be tried, those inferences may be drawn from the speed at which the other board members acted when Mr Love raised questions about the reliability of the workplace investigation report and the circumstances in which the investigation had been conducted, as well as the undesirability of relying upon such a report. In that regard, the argument on which Mr Love relies in this context is similar to the argument raised in support of his claim that the SMS respondents engaged in some or all of the pre-commencement conduct because of one or more of the reasons in paras (a) or (b) of s 340(1) of the Fair Work Act.

137    It was submitted that when Mr Love raised these questions (or more correctly, made those disclosures), the SMS respondents did not engage with Mr Love but instead, and as quickly as they could, threatened to remove him and, presumably, also engaged in the other conduct referred to at [53] of these reasons. On this basis, and as I understand it, Mr Love says that there is an available inference that the SMS respondents engaged in that conduct to stop him from making disclosures that qualify for protection under Pt 9.4AAA of the Corporations Act.

138    Unfortunately, I was not taken to the evidence upon which Mr Love relies to support those submissions. Doing the best I can, it appears that Mr Love places particular reliance on the correspondence that passed between the parties' legal advisors between 19 September 2025 and 6 October 2025.

139    In an email from SMS UK's Head of Corporate and Legal Affairs that was sent to Mr Giorgi on 19 September 2025, it was said that the board of that company did not want Mr Love to attend at the upcoming board meeting, and he was asked to refrain from incurring further travel expenses. The email also indicated that the board wished to conduct a 'Teams Meeting' with Mr Love to 'see if issues arising from the summary report can be resolved'. However, there was no suggestion at this stage that the Services Agreement would be terminated or that Mr Love should resign as a director of the SMS respondents.

140    Mr Giorgi then sent an email to the respondents' external lawyers on 22 September 2025. In that correspondence, Mr Giorgi raised concerns about the fairness of expecting Mr Love to respond to only a summary of the workplace investigation report. Mr Giorgi also raised various issues about the way in which the workplace investigation had been conducted and about the reliability of conclusions that were reached by the investigator. He also made a further request to be provided with a full copy of the report as well as any other documents relating to the investigation.

141    It was then that the SMS respondents first indicated in a letter from their external lawyers, dated 30 September 2025, that they had determined to terminate the Services Agreement and further expressed a belief that Mr Love should resign as a director. In that letter, the SMS respondents went on to encourage Mr Love to enter into discussions about 'an appropriate transition period', the timing of Mr Love's resignation as a director, and 'reasonable accommodations that may assist Mr Love in exiting the company with dignity and professionalism'. The letter also advised that if a mutually acceptable arrangement could not be reached then the board would take 'unilateral steps to terminate Mr Love's relationship with the company'.

142    It is arguable that the various matters raised by Mr Giorgi in his email of 22 September 2025 amount to disclosures that were made on behalf of Mr Love to 'eligible recipients' in relation to the regulated entity, for the purposes of paras (a) or (d) of s 1317AAC(1). Further, having regard to the ordinary meaning of the word 'improper', which includes being not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong (Jackson v Heart Research Institute at [224]), the disclosure made by Mr Giorgi on behalf of Mr Love arguably concerned an 'improper state of affairs or circumstances' in relation to the SMS respondents.

143    On this basis, I am prepared to accept that it is at least arguable that the evidence relied on by Mr Love at an interlocutory stage is capable of supporting an inference that when the SMS respondents engaged in the conduct referred to at (e) to (g) of [53] of these reasons, they believed or suspected that Mr Love had made, or at least could make, a disclosure that qualified for protection under Pt 9.4AAA of the Corporations Act, for the purposes of s 1317AC(1)(c). Further, it is arguable that it also supports an inference that it was this belief or suspicion that was at least part of the reason for the SMS respondents engaging in that conduct, for the purposes of s 1317AC(1)(d).

144    However, I again note that the correspondence that was sent by the respondents' external lawyers to Mr Giorgi on 30 September 2025 does tend to suggest that contrary to the inference upon which Mr Love relies, the SMS respondents only took steps to terminate the Services Agreement and to seek Mr Love's resignation as a director because of the conclusions that were reached by the workplace investigator about Mr Love's conduct. Further reasons for taking those steps were expressed by the respondents' external legal advisors in a letter dated 6 October 2025, which included that AEM staff had made it clear they could not continue to work with Mr Love and that the board had decided that it could no longer maintain a working relationship with him. This evidence, which was adduced by the applicants, tends to weaken the inferences upon which they rely.

145    Having reached the conclusion that there is a prima facie case that one or both of the SMS respondents contravened s 1317AC(1) when engaging in the conduct referred to at (e) to (g) at [53] of these reasons, and bearing in mind that I am not to conduct a preliminary trial, it is unnecessary to give consideration to the question of whether there is a serious question to be tried about whether the SMS respondents also contravened s 1317AC(1) by engaging in any other conduct.

146    Because the elements of s 1317AC(1) are effectively the same as the elements of s 1317AD(1), it follows from my conclusion about Mr Love's victimisation claim that it is also unnecessary to go on to determine whether there is a prima facie case justifying an order being made under s 1317AE, on the basis of s 1317AD(1). In any event, I note that s 1317AD(2B)(a) provides that Mr Love only bears the onus of 'adducing or pointing to evidence that suggests a reasonable possibility' (emphasis added) that the SMS respondents engaged in conduct that caused him any detriment, for the purposes of s 1317AD(1)(a)(i). If Mr Love is able to discharge his onus at trial, then the respondents will bear the onus of proving that Mr Love's claim is not made out: s 1317AD(2B)(b).

147    However, before leaving this topic I will briefly return to the observations that I have already made, in the context of Mr Love's claim under the Fair Work Act, concerning the question of whether sufficient colour of right to the final injunctive relief, in aid of which the interlocutory injunction is sought, has been demonstrated. In my view, those same observations apply to the claims Mr Love makes under the Corporations Act. That is, even if Mr Love were to establish that all of the SMS respondents' conduct on which he relies amounts to victimisation, or to detrimental conduct that justifies an order being made under s 1317AE, it would not be open to make a final injunction in the terms he seeks in the exercise of this Court's equitable jurisdiction. This is because the terms of the final injunction sought go well beyond amounting to a remedy for Mr Love's claims.

148    The same conclusion must be reached in relation to Mr Love's application for an interim injunction under s 1324(4) of the Corporations Act. This is because an interim injunction may only be made under s 1324(4) 'pending determination of an application under [s 1324(1)]'. Further, an interim order in the terms sought by Mr Love would restrain the respondents, pending trial and under threat of contempt, from engaging in conduct that would not amount to a contravention of the Corporations Act.

149    Accordingly, and for similar reasons to those that I have already expressed in the context of Mr Loves claims under the Fair Work Act, these are sufficient reasons in and of themselves to refuse to make the interlocutory orders sought based on Mr Love's claims under the Corporations Act.

150    Having dealt with Mr Love's claims, it is now necessary to consider whether there is a serious question to be tried in relation to Turton's claims.

Turton's claims

151    Turton claims that the respondents proposed to:

(a)    terminate the Services Agreement;

(b)    remove Mr Love as director, 'Executive Director' and CEO of SMS UK; and

(c)    remove Mr Love as director, 'Executive Director' and CEO of SMS.

152    Turton claims that by engaging in that conduct, the SMS respondents contravened s 340(2) of the Fair Work Act by taking adverse action against it within the meaning of one or both of Items 3(b) and 3(c) in s 342(1) of the Fair Work Act, because of each, or any one or more, of the following reasons (or for reasons that included one or more of the following reasons):

(a)    Mr Love had exercised a right to make a disclosure that qualified for protection under Pt 9.4AAA of the Corporations Act; and

(b)    Mr Love proposed, or has proposed, to exercise that right,

for the benefit of Turton.

153    It may be seen, therefore, that like Mr Love's claim that the SMS respondents contravened s 340(1) by taking adverse action against him, Turton's sole claim depends on a contention that Pt 9.4AAA of the Corporations Act, and its provisions, is a 'workplace law' as defined in s 12 of the Fair Work Act. For the reasons I have already given in relation to Mr Love's claim that the SMS respondents contravened s 340(1) of the Fair Work Act, because Pt 9.4AAA of the Corporations Act and its provisions are not a 'workplace law', it follows that there is no serious question to be tried in the context of Turton's claim.

154    I will now deal with the question of the balance of convenience.

The balance of convenience

155    Given what I have said about Mr Love's failure to demonstrate the existence of a prima facie right to the final injunctive relief sought, in aid of which the applicants have sought the interlocutory orders, or to interim injunctive relief under s 545(2)(a) of the Fair Work Act and s 1324(4) of the Corporations Act, it is strictly unnecessary to consider where the balance of convenience lies. Nevertheless, I will explain why I am of the view that the balance of convenience does not favour the making of an interlocutory injunction in any event.

156    Mr Love submits that the balance of convenience strongly favours the making of the injunctive orders that are sought. He says that the SMS respondents' actions have impacted on him, causing him anxiety, distress and humiliation. He refers, in particular, to an ASX announcement that was made by SMS UK, which he says prompted inquiries from shareholders, family members and friends who had made assumptions about what of which he had been accused.

157    Mr Love says that the SMS respondents have not paid him what he alleges are some outstanding fees, and that this is causing him financial and emotional distress. He says that his current financial situation is such that his, and his wife's, total monthly income is barely sufficient to cover his monthly outgoings, and that he may have to sell a property in which one of his children and his family live.

158    Mr Love also argues that if the interlocutory relief he seeks is not granted then he will be denied the benefit of full-time and ongoing engagement as a director, Executive Chairman and CEO of the SMS respondents. He says that the SMS respondents should be restrained from refusing to permit him to perform the duties of a director, Executive Chairman and CEO. In that regard, he refers to what was said by Murphy J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525; (2013) 216 FCR 70 at [114]:

In my view the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests. To say otherwise would be to deny the benefit one gains from the successful pursuit of activity in a field of expertise. The observation that active employment is a source of more than simply financial benefit is neither new, nor should it be considered controversial.

159    The applicants also submit that there is limited prejudice to the SMS respondents having regard to the fact that an interim injunction has been in place since 9 October 2025, an undertaking as to damages has been given, and the applicants are amenable to an expedited timetable for final hearing. The applicants also suggest that 'the interlocutory relief sought will not have the effect of requiring Mr Love to have any interaction with employees of AEM…and in any event his interactions with the other directors will be limited'. In that respect, the following passages appear in Mr Love's second affidavit at paras 51 to 52:

I wish to continue fulfilling my obligations as Executive Chairman and Chief Executive Officer of the [SMS] Respondents.

I acknowledge that the Respondents' Materials includes assertions by certain employees of AEM and members of the SMS Board that they no longer wish to work with me. While I feel deeply saddened and disappointed that these employees and other directors have formed this view, I no longer need to have any interaction with employees of AEM and I believe that I can have a professional working relationship with members of the SMS Board. I feel very strongly about continuing to fulfil my obligations and doing what is best for AEM, SMS and its shareholders. I have formed this view based, amongst other things, on the email dated 28 September 2025 which is referred to and annexed in paragraphs 60 and 61 of the affidavit of Sam Wright dated 22 October 2025, in which Mr Wright, the other Australian-based director of SMS, said that 'From [his] perspective, we can still move forward in a balanced and constructive way.'

I am willing to continue my roles and obligations in a more flexible arrangement, in circumstances where there is a limited need for me to have dealings with AEM employees and the other SMS directors outside of Board meetings and the AGM because:

(a)    I do not intend to travel to Kelowna, or to visit AEM's physical offices, and can perform my role remotely from Australia;

(b)    a new CEO has been appointed for AEM, Rick Freeman, with whom I have a professional working relationship and who commenced as CEO of AEM following the conclusion of the investigation. My role as Chairman of SMS can be effectively fulfilled entirely through communication with Mr Freeman, meaning that I do not need to have any direct contact with [an AEM employee] or any other AEM employees; and

(c)    for instances in which I am required to participate, such as Board meetings and any AGM, I am prepared to attend these meetings remotely through an audio-visual link such that no direct, in-person contact is required if that is the preference of the other Board members.

160    On the other hand, the respondents submit that the applicants have a weak prima facie case (if any), which means that the balance of convenience must weigh considerably against making the orders sought. They also contend that damages is an adequate remedy. In that respect, the respondents refer to what was said by Foster J in Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 at [81] that the provisions of the Fair Work Act provide an adequate foundation for an 'ample and generous award of compensation to the applicant which will not be confined to paying out the balance of [his] contract and other statutory entitlements'. The respondents say that similar observations can be made about the remedies available under s 545 of the Fair Work Act and s 1317AE of the Corporations Act.

161    The respondents also submit that there is a general reluctance to make orders that required the specific performance of employment contracts and contracts for the provision of personal services. Further, they point out that pursuant to cl 14(a) of the Services Agreement, either party to that agreement may terminate on notice for any reason or, pursuant to cl 14(c), on the existence of conditions. On this basis, the respondents say that the balance of convenience favours giving respect to the parties' agreement and that the balance of convenience does not permit the suspension of those rights.

162    The respondents say that, for practical reasons, the balance of convenience cannot favour the continuation of a relationship between the SMS respondents and Mr Love. They submit that as a director, Executive Chairman and CEO, Mr Love owes fiduciary duties to the SMS respondents, and that as he has made serious allegations concerning the SMS respondents and their directors and has taken legal proceedings against them, it is not possible for Mr Love to act in a leadership position and in their best interests.

163    In his oral submissions, senior counsel for the applicants contended that this submission should be rejected because there was no evidence to suggest that Mr Love had ever acted other than in accordance with his obligations of loyalty to the SMS respondents. When he was asked about the practicality of making orders that, in effect, would require the respondents to allow Mr Love to continue to act as a director, Executive Chairman and CEO in circumstances where the respondents relied on evidence that people were not prepared to work with Mr Love, senior counsel for the applicants submitted that such evidence should be treated with a high degree of scepticism. Senior counsel suggested that the evidence in this respect was self-serving.

164    The respondents also point out that the interests of AEM employees are relevant to where the balance of convenience lies. They rely on the evidence of several people in various management positions at AEM who say, in effect, that they are not prepared to continue to work with Mr Love.

165    Finally, the respondents say that if the orders sought by the applicants were to be made, those orders are likely to remain in place for a lengthy period of time before a trial in this matter can take place. They say that this means that they will be forced to work with Mr Love for a long time before the final hearing as he continues to act in his very senior management positions. Given the claims that the applicants have made, and the evident lack of trust that exists, the respondents submit that this is not tolerable, productive or workable.

166    I have taken all of those submissions into account. However, in my view, and for the following reasons, the balance of convenience does not favour the granting of the interlocutory injunction that Mr Love seeks.

167    The terms of the interlocutory injunction sought by Mr Love largely reflect the final injunctive orders that he seeks. In fact, the proposed interlocutory orders go further, because they seek to restrain the SMS respondents from 'any further refusal to permit [Mr Love] to perform the duties of a director and Executive Director … and Chief Executive Officer'. Nevertheless, it is plain that, like the final orders that are sought, if an interlocutory injunction were made in the terms sought by Mr Love it would have the practical effect of restraining the respondents, under threat of contempt, from engaging in conduct, until further order, that might have nothing whatsoever to do with Mr Love's claims under the Fair Work Act or under the Corporations Act. In other words, the interlocutory orders, if made, would have the practical effect of restraining the respondents from doing things that Mr Love has no right to prevent.

168    This may be illustrated by the terms of the Services Agreement. Clause 14(a)(iv) of that agreement provides that the parties may 'immediately terminate this Agreement upon giving written notice to the other party to this Agreement' if 'the board resolves to remove the Consultant as an executive director', where the 'Consultant' is defined as Mr Love. Accordingly, the practical effect of the interlocutory injunction sought by Mr Love would be to restrain the SMS respondents from exercising a right to terminate the Services Agreement for reasons that may have nothing to do with the claims Mr Love makes in these proceedings.

169    Similarly, Mr Love seeks to restrain the SMS respondents, on an interlocutory basis, from 'further' refusing to permit him to perform his duties. Once again, there may be reasons the SMS respondents may wish to prevent Mr Love performing his duties as a director, Executive Chairman and CEO that arise before trial, but which are completely unrelated to the claims Mr Love has made in these proceedings. Further, insofar as Mr Love seeks to restrain the SMS respondents on an interlocutory basis from publishing or disseminating the workplace investigator's report and its findings, there may be good reasons why the SMS respondents may wish, or even be required, to do just that, and in circumstances where Mr Love would have no right to stop that from happening on the basis of the claims he makes in these proceedings.

170    In these circumstances, the significant risk of injustice to the SMS respondents if the interlocutory injunction that has been sought is granted is obvious. In my view, this risk of injustice points inevitably to a conclusion that damages are an adequate remedy if Mr Love and Turton are eventually successful in their claims against the SMS respondents.

171    There is also a significant air of unreality about Mr Love's application for interlocutory orders as they seek to effectively restrain the SMS respondents from terminating their relationship with Mr Love, and to require them to allow him to continue acting as a director, Executive Chairman and CEO.

172    The respondents rely on several affidavits signed by the other members of the SMS respondents' respective boards of directors. Each director says, in various ways, that in light of the findings that were made by the workplace investigator and having regard to Mr Love's behaviour towards other members of the board of directors at a meeting that took place in Kelowna in late September 2025, they are not willing to continue to work with Mr Love.

173    As I have already noted, senior counsel for the applicants submitted that I should treat this evidence with a high degree of scepticism, suggesting that it was self-serving and that it had been embellished. Of course, it would not be appropriate for me to attempt to make factual findings based on contested evidence. However, the mere fact that such evidence has been put before the Court is of itself a strong indication that the relationship between the other members of the boards of directors and Mr Love has broken down. Further, even if senior counsel for the applicants is correct, and there has been a degree of self-serving embellishment, that of itself would tend to confirm rather than dispel any concerns about the ability of the SMS respondents' boards of directors to continue to work with Mr Love.

174    Further, it must not be forgotten that it was Mr Love who commenced these proceedings. Not only did he seek injunctive relief on an ex parte basis, but he joined his fellow directors as respondents, alleging that each of them are personally liable as parties to the SMS respondents' various alleged contraventions. Many of the allegations that Mr Love has made are serious. Victimisation attracts both criminal and civil penalty consequences.

175    I infer that Mr Love's relationship with the boards of the SMS respondents has broken down, and that the trust the members of the boards had previously reposed in Mr Love has now evaporated.

176    Mr Love says that he is willing to continue his roles and obligations 'in a more flexible arrangement'. He suggests that there is a limited need for him to have dealings with AEM employees and the other directors outside of board meetings and the annual general meeting. In that regard he says that he can perform his role remotely from Australia and points out that a new CEO has been appointed for AEM. He says that his role as chairman can be effectively fulfilled entirely through communication with the new CEO of AEM. He also says that where he is required to participate in meetings, he can do so remotely through an audio-visual link such that no direct, in-person contact is required.

177    It is important to appreciate that Mr Love is no mere employee. He is a director and the Executive Chairman and CEO of both of the SMS respondents, one of which is a publicly listed company. It is unnecessary to examine in detail the ordinary duties of a person in those types of positions as it is obvious that in those positions Mr Love has an important leadership and management role. To the extent that confirmation of that proposition is required, under the Services Agreement, Turton effectively agreed to provide Mr Love's services:

(a)    In his capacity as a Director, act as the Chairman of the Board of Directors of the Company and in that role perform all duties ordinarily required of a Chairman of an ASX listed company and oversee compliance.

(b)    In his capacity as an Executive, perform all duties ordinarily required of a Chief Executive Officer of an ASX Company and take responsibility and leadership of the corporate and operational functions of the Company to maximise returns to shareholders. These duties will include but not be limited to overseeing the development and commercialisation [of] the Company's CVM Technology, overseeing the performance and growth [of] the Company's subsidiaries (in particular, AEM) as well as considering suitable merger and acquisition opportunities.

178    In my view, it is nonsensical to suggest that the balance of convenience favours the making of interlocutory orders that have the practical effect of forcing the SMS respondents to continue to engage Mr Love as a director and Executive Chairman of their boards of directors and as one of their most senior executive managers as CEO, irrespective of the circumstances and regardless of whether any steps the SMS respondents might wish to take in relation to Mr Love would justify the grant of an injunctive remedy based on the claims that are currently before the Court. Mr Love's willingness to continue acting in his current roles, and to do so in a flexible way, does not address this issue.

Conclusion

179    For these reasons, I dismiss the applicants' claims for interlocutory relief.

Associate:

Dated:    22 December 2025

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