Federal Court of Australia

Oxford Insurance Brokers Pty Ltd v NTI Limited (No 2) [2026] FCA 787

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to file a further proposed amended statement of claim is refused with the applicant having leave to replead.

2.    The matter is listed for a further case management hearing.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 13 March 2026, the Court delivered its decision in this matter in which it discharged an urgent interlocutory injunction: Oxford Insurance Brokers Pty Ltd v NTI Limited [2025] FCA 268. These reasons should be read in conjunction with that decision.

2    Since that time, the applicants have filed a statement of claim and now apply for leave to file a proposed further amended statement of claim and second amended originating application.

3    There are a number of amendments proposed. The respondents did not object to the majority of the amendments, however the proposed amendments to which they object are those concerning Part 9.4AAA of the Corporations Act 2001 (Cth).

4    It is for the reasons which follow that leave to amend [58N] and [58O] of the proposed further amended statement of claim is refused. However, the applicant will be given a further opportunity to re-plead those paragraphs.

Part 9.4AAA

5    Part 9.4AAA of the Corporations Act concerns whistleblower complaints and orders for compensation in the event the person making the complaint suffers detriment as a consequence of the complaint.

6    The sections in question are ss 1317AD and 1317AE which provide:

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.

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

(a)    the first person is or was an officer or employee of a body corporate; and

(b)    paragraphs (1)(a), (b) and (c) of this section apply to the body corporate because of detrimental conduct engaged in by the body corporate; and

(c)    the first person:

(i)    aided, abetted, counselled or procured the detrimental conduct; or

(ii)    induced, whether by threats or promises or otherwise, the detrimental conduct; or

(iii)    was in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the detrimental conduct; or

(iv)    conspired with others to effect the detrimental conduct.

(2A)    A court may make an order under section 1317AE in relation to a person (the first person) that is a body corporate if:

(a)    another person (the third person) engages in conduct (detrimental conduct) that:

(i)    causes any detriment to a person (the second person) other than the first person or the third person; or

(ii)    constitutes the making of a threat to cause any such detriment to a person (the second person) other than the first person or the third person; and

(b)    when the third person engages in the detrimental conduct, the third 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; and

(d)    the first person is under a duty to prevent the third person engaging in the detrimental conduct, or a duty to take reasonable steps to ensure that the third person does not engage in the detrimental conduct; and

(e)    the first person fails in part or whole to fulfil that duty.

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;

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

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

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

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

…

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

(g)    any other order the court thinks appropriate.

…

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

The objections to the proposed further amended statement of claim

7    The respondents object to proposed [58L], [58M], [58N] and [58O]:

58L.    Subsequent to the Complaint, NTI engaged in conduct (Detrimental Conduct).

Particulars

The Applicants refer to and repeat the events referred to in paragraphs:

1.    20 to 38 above, from 29 September 2024 onwards; and

2.    46 to 53A above.

58M.    The Detrimental Conduct:

a.    caused detriment to Oxford, CARACTIB and/or GBI, within the meaning of s 1317ADA of the Corporations Act; and

b.    was detrimental conduct within the meaning of s 1317AD(1)(a) of the Corporations Act.

Particulars

The Applicants have suffered damage to their reputation, business and/or financial position. The Applicants refer to:

1.    the affidavit of Mr White dated 8 December 2025, in particular paragraphs 67 to 107, and 123;

2.    the affidavit of Ms White dated 5 December 2025, in particular paragraphs 48 to 56, and 57.

58N.    When NTI engaged in the Detrimental Conduct, it believed or suspected that Oxford, CARACTIB, GBI, Mr White had made, may have made or could make, a disclosure that qualified for protection under Part 9.4AAA of the Corporations Act.

Particulars

Further to paragraphs 58L and 58M above, and the particulars therein, at trial the Applicants will adduce or point to evidence that suggests a reasonable possibility that NTI has engaged in detrimental conduct, and in those circumstances they rely on the reverse onus under s 1317AD(2B) to put NTI to proof that the claim of a contravention of s 1317AD(1) is not made out.

NTI had actual knowledge of the Complaint: the Applicants refer to:

1.    the email from Mr Clark to Mr White dated 30 September 2024, acknowledging the Complaint, referred to in paragraph 117 of the affidavit of Mr White dated 8 December 2025; and

2.    the email from Mr Clark to Mr White dated 6 November 2024 referred to at paragraph 43 and the particulars therein.

58O.    The belief or suspicion referred to in paragraph 58N above was the reason, or part of the reason, for the Detrimental Conduct.

Particulars

The Applicants refer to and repeat the particulars subjoined to paragraph 58N above.

Principles

8    The principles relating to the allowing of an amendment are well settled: Lynch v Cash Converters Personal Finance Pty Ltd [2016] FCA 1536 at [54]-[55] (Gleeson J).

9    The Court will not permit an amendment if the matter the amendment seeks to raise is unlikely to succeed in that the proposed amendment would not disclose a reasonable cause of action and would, therefore, likely be struck out: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26; Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 176 FCR 66 at [21]-[22] (Kenny J).

10    The decision whether to allow an amendment is discretionary and takes into account a range of factors, including the stage in the proceedings at which the pleadings are sought to be amended and the prejudice said to be sustained by the opposing party: r 16.53 of Federal Court Rules 2011 (Cth).

11    The real crux of the dispute between the parties comes down to the pleading as to the belief or suspicion of NTI.

Parties’ submissions and consideration

12    The applicants refer to and rely on the decision of the New South Wales Supreme Court in Saridas v Papuan Oil Search Ltd (No 3) [2022] NSWSC 1515.

13    The plaintiff in Saridas was employed as a Chief Financial Officer designate with the defendant. She wrote to the Chairman raising certain concerns following which her employment came to an end.

14    The plaintiff in Saridas sought to plead the reverse onus in s 1317AD(2B) of the Corporations Act. In granting leave to proceed on the amended pleading, Schmidt AJ considered a submission by the defendant that the pleadings in question were inadequate and that pleading the reverse onus that is imposed on the defendant pursuant to s 1317AD(2B) has no work to do in the pleading then under consideration.

15    After identifying matters which Schmidt AJ considered were not matters which the plaintiff had the onus of establishing under the statutory scheme, her Honour held that the plaintiff’s pleading disclosed properly to the defendant the facts upon which the plaintiff would rely to meet her onus.

16    Schmidt AJ continued: at [80], that subsection 1317AD(2) had the result that if the plaintiff met her onus of establishing the matters in s 1317AD(1)(a) in relation to the pleaded detrimental conduct and the consequent harm to her, then the defendant had the onus in relation to the matters pleaded in s 1317AD(1)(b) and (c).

17    In that context: at [80], Schmidt AJ considered that the plaintiff had adequately pleaded her claim and disclosed that s 1317AD(2B) imposed an onus on the defendant. Ultimately her Honour considered that the case the defendant had to meet had been disclosed and the pleading of the reverse onus in s 1317AD(2B) was appropriate in that it identified the case the defendant would have to meet.

18    In contrast, the respondents refer to Balal v Ampol Limited [2025] FCA 1189 (Shariff J).

19    In Ampol the applicant alleged contraventions of the whistleblower protections.

20    Shariff J considered both ss 1317AC(1) and 1317AD(1), noting that the burden of proving the elements of s 1317AD(1) first fall on the applicant who must adduce or point to evidence that suggests a reasonable possibility that the respondent engaged in conduct that caused detriment and that once that is shown, the onus shifts to the respondent to disprove the applicant’s claim: s 1317AD(2B)(a).

21    His Honour referred to a number of decisions which had considered the protection afforded to whistleblowers under the Corporations Act, including Reiche v Neometals Ltd (No 2) [2025] FCA 125; 338 IR 312 (Feutrill J). Referring to [68] of that decision, Shariff J noted with apparent approval Feutrill J’s observation that the effect of s 1317AD(2B)(a) was that each of the elements in s 1317AD(1) are taken to be satisfied unless the respondents can adduce evidence which disproves the elements.

22    With respect, I agree with Feutrill J’s analysis of the interaction between s 1317AD(1) and (2B).

23    I note in passing that on 4 May 2026, the Full Court dismissed an appeal from the primary judge’s decision in Reiche: Reiche v Neometals Ltd [2026] FCAFC 53.

24    The matters which engage the reverse onus in s 1317AD(2B) are identified in s 1317AD(2B)(a) with the reverse onus engaged if the applicant adduces or points to evidence that suggests a reasonable possibility of the matters in the identified subsections.

25    To put that in context, if the applicants can establish, in accordance with s 1317AD(1), that:

(1)    … a person (the first person) …

…

(a)    … engages in conduct (detrimental conduct) that:

(i)    causes 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)    …

(c)    ….

the effect of s 1317AD(2B)(a) is that the onus of establishing that the claim is not made out shifts to the respondent. It is in that context that, if the respondent does not meet its reverse onus, all of the elements in s 1317AD(1) are met.

26    This matter has not been listed for trial and the respondents have not filed their evidence such that there would be little, if any, prejudice to them should an amendment be made at this stage.

27    Notwithstanding the respondents complaint about [58L] and [58M], the pleading is unobjectionable. However, [58N] of the proposed pleading is unacceptable in a number of respects.

28    First, there is a plea that when NTI engaged in the alleged detrimental conduct, it believed or suspected that (the applicant or other identified entities) had made, may have made, or could make, a disclosure that qualified for protection under Part 9.4AAA.

29    The plea is directed at NTI but there is no identification who within NTI had the relevant belief or suspicion.

30    Second, notwithstanding the operation of s 1317AD(2B)(a), the applicant has chosen to plead that NTI believed or suspected the matters identified in that paragraph. That proposed pleading engages directly with the state of mind of NTI, or at least those who comprise the “mind” of NTI.

31    In Australian Parking and Revenue Control Pty Ltd and Reino International Pty Ltd [2016] FCA 744 at [19], Perry J said:

…

(5)    A party who pleads a condition of mind, including knowledge, must state in the pleading particulars of the facts on which the party relies: FCR r 16.43(1) and (3). Equally, if a party pleads that another party ought to have known something, particulars of the facts and circumstances on the basis of which it is said that that other party ought to have acquired the knowledge must be pleaded: FCR r 16.43(2). For example, it might be pleaded that a party knew or ought to have known a given fact because it received a particular communication: Young Investment Group at 540 [10].

32    Having embarked upon that pleading path, it is incumbent upon the applicant to comply with the requirements of FCR 16.43(1) and (3).

33    Contrary to FCR 16.43(1), the applicants plead belief or suspicion, but there is nothing provided by way of material facts which are said to give rise to that belief or suspicion.

34    Third, [58N] refers to three companies (the applicants) and to Mr White, who is the Account Manager for each of those companies. Sections 1317AA and 1317AAA provide that an eligible whistleblower is an individual, not a company.

35    Fourth, the particulars to [58N] are directed to allegations in [58L] and [58M] which are directed at detrimental conduct and it is in that context that the applicant pleads the reverse onus in s 1317AD(2B)(b).

36    With respect to Schmidt AJ in Saridas, such a plea should not be made. It is not the role of pleadings to plead an evidential rule as the applicant seeks to do by invoking s 1317AD(2B)(b).

37    It is for these reasons that I would not allow the applicant to plead [58N] in its current form.

38    As to [58O], that paragraph alleges the belief or suspicion referred to in [58N] was the reason, or part of the reason, for the detrimental conduct.

39    The particulars to that paragraph repeat the particulars in [58N] and to that extent appear to be directed to both the belief or suspicion pleaded in [58N] as well as the detrimental conduct particulars in [58N].

40    The defect in the pleading in [58N] are such as to make the pleading in [58O] unsustainable in its current form.

41    It is for these reasons that I would not grant leave to the applicants to file and serve the proposed further amended statement of claim.

42    Nonetheless, the applicant should be given a chance to replead the allegations in [58N] and [58O] and will be given an opportunity to do so.

Conclusion

43    The application by the applicant to file and serve a further amended statement of claim is refused.

44    The applicants will be given a further opportunity to replead.

45    I will hear the parties on the question of the time within which the applicants are to file and serve a further amended statement of claim that addresses these issues and the question of costs.

Associate:

Dated:    19 June 2026