FEDERAL COURT OF AUSTRALIA

Vize v Whistle Funds Management Company Pty Ltd [2026] FCA 831

ORDERS

THE COURT DECLARES THAT:

1.    The applicant (Mr Vize) was, between 1 July 2017 and 5 March 2025 (the Termination Date):

(a)    a “national system employee” within the meaning of s 13 of the Fair Work Act 2009 (Cth) (FW Act); and

(b)    an “employee” within the ordinary meaning of the FW Act.

2.    The first respondent (Whistle Funds) contravened s 44 of the FW Act by failing to pay to Mr Vize his annual leave entitlements as accrued by him from 1 July 2017, as required by s 90(2) of the FW Act.

3.    Whistle Funds contravened s 44 of the FW Act by failing, from 1 January 2024, to make contributions to a superannuation fund for the benefit of Mr Vize, as required by s 116B of the FW Act.

4.    Whistle Funds contravened s 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) by failing to pay to Mr Vize his long service leave entitlements as accrued by him from 1 July 2017.

5.    Whistle Funds contravened s 340(1)(a)(ii) of the FW Act by dismissing Mr Vize because he exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act.

THE COURT ORDERS THAT:

6.    The proceedings against the second respondent be dismissed.

7.    The respondents’ Amended Statement of Cross-Claim dated 26 May 2026 be dismissed.

8.    The proceedings be listed for case management at 10:00 am on 16 July 2026 for:

(a)    programming of a hearing to determine the remaining questions of remedy, relief, imposition of any penalties claimed by the applicant, and the assessment of any damages; and

(b)    consideration as to whether the matter should be referred to a mediation.

9.    By 4:00 pm on 15 July 2026, the parties are to provide consent or competing short minutes of order addressing a timetable for the purpose of Order 8.

10.    The costs of and incidental to the proceedings to date be reserved.

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

REASONS FOR JUDGMENT

SHARIFF J

1.    INTRODUCTION

1    The applicant (Mr Vize) was engaged by the first respondent (Whistle Funds) in the period from about 28 March 2012 until that engagement was terminated on 5 March 2025 (Termination Date). One of the central issues in these proceedings is whether Mr Vize was engaged as an employee or an independent contractor from in or about 1 July 2017 until the Termination Date. The resolution of that question determines most, but not all, of the other issues in these proceedings.

2    The issues that arise for determination are as follows:

(a)    whether Mr Vize was engaged by Whistle Funds as an employee at common law:

(i)    from in or about 1 July 2017 when he says he was appointed to the role of “Fund Manager” until the Termination Date; or

(ii)    alternatively, from in or about 7 April 2021 when he says he was appointed to the role of “Managing Director” until the Termination Date;

(b)    further and/or alternatively, whether, for the purposes of the Fair Work Act 2009 (Cth) (FW Act), Mr Vize was an employee from in or about 26 August 2024 because he fell within the meaning of “employee” as contained in s 15AA of that Act, as introduced by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth);

(c)    irrespective of whether Mr Vize was engaged as an employee or independent contractor, whether he was entitled to the provision of reasonable notice of the termination of his engagement on the basis of an implied term to that effect and, if so, the period of such reasonable notice;

(d)    if Mr Vize was an employee by reason of either (a) and/or (b) above, whether:

(i)    Whistle Funds contravened s 340(1)(a)(ii) of the FW Act by subjecting Mr Vize to unlawful adverse action in relation to his dismissal from employment because (or for reasons including because) he had exercised a workplace right;

(ii)    Whistle Funds contravened s 44 of the FW Act by failing to pay Mr Vize accrued annual leave entitlements on the termination of his alleged employment and, if so, from when such annual leave entitlements accrued;

(iii)    Whistle Funds contravened s 44 of the FW Act by failing to make contributions to a superannuation fund for the benefit of Mr Vize;

(iv)    the second respondent (Mr Silverman) was “involved in” Whistle Fund’s contravention in (i), (ii), or (iii) above within the meaning of s 550 of the FW Act; and

(v)    Whistle Funds failed to pay Mr Vize long service leave as required by s 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) (LSL Act);

(e)    whether Mr Vize was an “employee” for the purpose of s 12 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SG Act) and, if so, for what periods of time; and

(f)    if I find that Mr Vize was an employee at common law or under s 15AA of the FW Act, whether he is estopped from asserting that he was an employee or suing the respondents for contraventions of the FW Act on the basis of a conventional or promissory estoppel, as claimed by the respondents in their Amended Statement of Cross-Claim dated 26 May 2026 (Cross-Claim).

3    By consent, I made orders to determine these issues as questions of “liability” prior to hearing and determining any questions of remedy and relief.

4    I have structured my reasons so that they address the issues arising between the parties as follows:

(a)    Part 1: which is this “Introduction”;

(b)    Part 2: which addresses “Background and preliminary matters”;

(c)    Part 3: which addresses the question, “Was Mr Vize an independent contractor or employee at common law from in or about July 2017?”;

(d)    Part 4: which addresses “Mr Vize’s claims for Reasonable notice”;

(e)    Part 5: which addresses the question, “Was Mr Vize an employee under the FW Act?”;

(f)    Part 6: which addresses “Mr Vize’s Annual leave claim”;

(g)    Part 7: which addresses “Mr Vize’s Long service leave claim”;

(h)    Part 8: which addresses “Mr Vize’s Superannuation claims”

(i)    Part 9: which addresses “Mr Vize’s Adverse Action claims”;

(j)    Part 10: which addresses “Mr Vize’s claims as to Mr Silverman’s accessorial liability”;

(k)    Part 11: which addresses “The Respondents’ Cross-Claim”; and

(l)    Part 12: which addresses the “Disposition” of this phase of the proceedings.

5    For the reasons that follow, I have concluded that:

(a)    Mr Vize was an employee at common law from in or about July 2017 and continued to be an employee upon his appointment as Whistle Funds’ Managing Director in or about April 2021;

(b)    Mr Vize was entitled to be provided with six months’ reasonable notice of the termination of his employment;

(c)    by reason of (a), Mr Vize was an employee under the FW Act and, in any event, fell within the definition of employee as provided for in s 15AA of the FW Act from 26 August 2024;

(d)    by reason of (a) and (c), Mr Vize was entitled on the Termination Date to be paid any annual leave that had accrued to him from in or about July 2017 and, accordingly, Whistle Funds contravened s 44 of the FW Act by failing to pay him those entitlements on the termination of his employment pursuant to s 90(2) of the FW Act;

(e)    by reason of (a) and (c), Mr Vize was entitled on the Termination Date to be paid any long service leave that had accrued to him from in or about July 2017 and, accordingly, Whistle Funds contravened s 4(2)(a)(iii) of the LSL Act by failing to pay him those entitlements on the termination of his entitlements;

(f)    by reason of (a), Whistle Funds was required from 1 January 2024 to make superannuation contributions for the benefit of Mr Vize into a nominated superannuation fund as required by s 116B of the FW Act and accordingly, Whistle Funds contravened s 44 of the FW Act by failing to do so;

(g)    Whistle Funds contravened s 340(1)(a)(ii) of the FW Act by dismissing Mr Vize because he had exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act;

(h)    Mr Vize has not established his claim that Mr Silverman was involved in Whistle Funds’ contraventions within the meaning of s 550 of the FW Act; and

(i)    the respondents’ Cross-Claim should be dismissed.

2.    BACKGROUND AND PRELIMINARY MATTERS

2.1    General overview of the parties

6    Mr Silverman is the Founder and Managing Director of Whistle Funds. In or about 2007, Mr Silverman caused Whistle Funds to become registered with the Australian Securities and Investments Commission (ASIC) to establish a funds management business. Whistle Funds is a fund manager that focuses on investments in commercial real estate. It is common ground that its primary functions include:

(a)    procuring the equity and senior debt required to fund the acquisition of commercial, real estate assets for the fund;

(b)    managing the assets and liabilities of various trusts,

(c)    managing properties, and improving a property's financial performance and value over time;

(d)    making recommendations to the relevant trustee with respect to how to distribute income to the unit holders in the trusts being managed by Whistle Funds;

(e)    reporting to the trusts’ unit holders twice each year;

(f)    preparing and providing tax distribution statements to unit holders;

(g)    managing refurbishments and renovations of the real estate assets;

(h)    appointing external agents to provide services such as leasing, valuations and property management;

(i)    making payments to unit holders;

(j)    preparing the accounts of the trusts;

(k)    establishing and maintaining the “Unit Holder Register”;

(l)    convening meetings of unit holders; and

(m)    handling complaints.

7    Prior to being engaged by Whistle Funds, Mr Vize worked as a Manager at Macquarie Group until his position was made redundant in late-2011.

8    At some point after his position was made redundant, Mr Vize registered the business name Advize Property Consulting (Advize) and also obtained an Australian Business Number (93 688 922 539) (ABN). By taking these steps, I am satisfied that it was Mr Vize’s intention at the time to perform consultancy services as an independent contractor who would consult for potentially more than one client or organisation. At the time, Mr Vize was also a keen runner who entered running competitions around the world. To this end, on or about 15 March 2012, Mr Vize had entered into a sponsorship agreement with Amer Sports Australia Pty Ltd, trading as “Salomon”.

2.2    Overview of Mr Vize’s claims as to the contractual arrangements between the parties

9    Following discussions between Mr Silverman and Mr Vize, the latter’s engagement with Whistle Funds commenced on 28 March 2012 when the parties entered into a “Consultancy Agreement” (First Consultancy Agreement).

10    After the expiry of the First Consultancy Agreement on 30 April 2012, Mr Vize continued to perform work for Whistle Funds.

11    On 1 August 2013, Mr Vize signed a new consultancy agreement with Whistle Funds (Second Consultancy Agreement).

12    Mr Vize claims that on 1 July 2017, he was appointed to the role of Fund Manager. Mr Vize claims that at the time that he was appointed to the position of Fund Manager, the Second Consultancy Agreement was “superseded” and that he thereafter became an employee: Amended Statement of Claim dated 7 April 2026 (ASOC) at [7], [9].

13    Mr Vize further claims that on 7 April 2021, he was appointed to the roles of Managing Director and Chief Executive (CEO). He says that from the time that he was “promoted” to the position of Managing Director and CEO, he continued to be an employee or, alternatively, became an employee from that point in time: ASOC at [10], [14].

14    It is common ground that between 19 January 2021 and the Termination Date, Mr Vize was appointed as a Director of Whistle Funds and up to 13 different trustee companies within the broader Whistle Funds group, alongside Mr Silverman: Affidavit of Mr Vize dated 20 February 2026 (Vize 1) at [56].

15    Mr Vize pleads that as at the Termination Date, he was employed under a contract of employment which contained terms that were in part express and in part implied as a matter of fact or law (the Alleged Employment Contract): ASOC [16]-[19].

16    Whistle Funds denies that Mr Vize was engaged as an employee at any point in time: Amended Defence to ASOC dated 16 April 2026 (Defence) at [9], [14], [15]. It denies that Mr Vize was appointed to the position of Fund Manager and, accordingly, denies that any new contract was entered into in mid-2017: Defence at [7]. Whistle Funds admits that Mr Vize was appointed to the position of Managing Director in April 2021, but denies that the parties entered into a new contract at that point in time or that Mr Vize was thereafter engaged as an employee: Defence at [10], [14]-[15]. Accordingly, Whistle Funds denies that it employed Mr Vize under the Alleged Employment Contract.

17    Whistle Funds’ position is that the Second Consultancy Agreement continued to apply to Mr Vize’s engagement until the Termination Date: Defence at [7(b)]. It contends that the various duties and roles performed by Mr Vize over the course of his approximately 13-year engagement with Whistle Funds fell within the meaning of “Services” as provided for in the Second Consultancy Agreement and by which it could require Mr Vize to perform any duties requested by it and to which he agreed. It says that the Second Consultancy Agreement was never varied or terminated in accordance with its terms. It further says that even if there was a variation to the terms of the Second Consultancy Agreement, or it was replaced by a new contract, the variations were limited to Mr Vize’s changes in remuneration and otherwise all of the terms of the Second Consultancy Agreement continued to apply as part of a varied contract or as part of a new contract that was entered into.

18    The parties belatedly agreed to a Statement of Agreed Facts and Issues dated 24 June 2026 (SAFI). It is an agreed fact that:

In the period of the whole of the engagement from 28 March 2012 to 5 March 2025, the Applicant provided services as required by Whistle Funds and agreed between Mr Vize and Whistle and which included but was not limited to financial modelling, cash flow management, and preparation of investor reports.

19    Whilst the parties agreed to this fact, they were in dispute about what followed from that fact, as set out in the agreed issues in dispute, as follows:

Among the issues in dispute:

a.    The Respondent says, and the Applicant denies, that all such services fell within the scope of “Services” in Schedule 2 of the Second Consultancy Agreement.

b.    The Applicant says, and the Respondent denies, that from 1 July 2017 that the duties agreed to be performed were agreed pursuant to an employment contract entered into by the parties at that time.

c.    Alternatively, the Applicant says, and the Respondent denies, that from 7 April 2021, that the duties agreed to be performed from that time were agreed pursuant to an employment contract entered into by the parties at that time.

d.    In the alternative, the Respondent says, and the Applicant denies, that if there was a contract from 1 July 2017 and/or 7 April 2021, such contract was in the terms of the Second Consultancy Agreement, save for the amounts to be paid as provided in Schedule 3.

20    I return to the agreed fact and matters in issue later in these reasons.

2.3    The witnesses and their credit

21    There were two witnesses who gave evidence: Mr Vize and Mr Silverman.

22    Both parties submitted that I should make adverse credit findings against each other’s witness, respectively. The respondents contended that wherever there was a contest in the evidence as between Mr Vize and Mr Silverman, I should prefer the latter’s evidence. Mr Vize advanced the inverse contention. Both these contentions were pitched at too high a level of generality to be accepted. In what follows, I have identified (where relevant) the areas of difference in the evidence of the two witnesses and made specific findings as to whose evidence I prefer and, in some cases, I have preferred to rely upon the objective contemporaneous records as being a more reliable source from which to make findings relevant to the issues I am required to determine. As I explain below, I am not prepared to make general adverse credit findings in respect of each witness and prefer instead to make specific findings in relation to credit in respect of particular aspects of the evidence, as will be apparent from the balance of my reasons.

23    Mr Vize deposed an affidavit dated 20 February 2026 (defined above as Vize 1) and a further affidavit dated 30 April 2026 (Vize 2). Mr Vize was cross-examined. My observation of Mr Vize was that he was a witness who, at times, took considerable time to think about a question or took long pauses before answering some questions. My assessment is that, at times, Mr Vize did so because he struck me as wanting to be careful and considered in his responses and, at other times, Mr Vize’s approach to answering questions reflected a defensiveness on his part. My assessment was that, at times, Mr Vize disclosed a reluctance to accept elementary propositions such as why he had registered a consultancy business or the differences between employees and contractors. However, it must be pointed out that some of the questions that were put to him on these matters were pitched at a level of generality that warranted some thought. Generally, my view was that Mr Vize was seeking to downplay the significance of the fact that he had taken steps to establish a consultancy business as a sole trader in 2012 with a view to (at least at that time) seeking out work from different sources and maintaining the flexibility that was offered by such an arrangement. However, these aspects of Mr Vize’s evidence, and his approach to answering questions, does not detract from my assessment of the veracity of the evidence that Mr Vize gave in most respects. I regarded Mr Vize’s evidence as honestly given. It was not squarely put to him (other than in minor respects) that he was confecting his evidence or that he should be disbelieved. I reject the general attack on Mr Vize’s credit.

24    Mr Silverman deposed an affidavit dated 16 April 2026 (Silverman 1) and a further affidavit dated 19 May 2026 (Silverman 2). My assessment is that, at times, Mr Silverman was an impressive witness. He is clearly a commercially experienced and savvy man who has had considerable success in the commercial world by the application of his skill, acumen, shrewdness and evident charm. However, at other times, and in several critical respects, especially in relation to the assessments he made of Mr Vize’s (alleged) conduct in late-2024 and early-2025, and the decision he made to terminate Mr Vize’s engagement, I regarded Mr Silverman’s evidence as being unimpressive, unsatisfactory, unreliable, combative and inconsistent.

25    As I explain further below in Part 9.4, my assessment is that Mr Silverman was tempestuous and reacted emotively to Mr Vize’s complaints made to him about Mr Silverman’s conduct, which Mr Silverman perceived to be (using his own words) “disloyal”, “hysterical” and “litigious”, or “undermining” the business. In the end, as I also explain below, Mr Silverman made concessions as to critical matters such as: (a) that he decided to terminate Mr Vize’s engagement because he was annoyed that Mr Vize had made a complaint, and (b) that he had in fact made the decision to terminate that engagement earlier than was consistent with the respondents’ pleaded case. These were obvious concessions to make. What they mean is that I do not accept other aspects of Mr Silverman’s evidence where he denied certain allegations that were put to him and his attempt to provide more benign explanations for his reasons to terminate Mr Vize’s engagement.

26    Whilst these assessments do not lead me to reject the entirety of Mr Silverman’s evidence, I have rejected parts of his evidence on critical issues relating to the termination of Mr Vize’s engagement. Reflecting the usual nuances and complexity of human behaviour and matters of credit, I have, however, accepted the parts of Mr Silverman’s evidence as to his knowledge of the facts, matters and circumstances of Mr Vize’s engagement as an independent contractor (even though I have found that in the relevant periods, Mr Vize was relevantly an employee).

27    Where relevant, I address in what follows the areas where I have accepted either Mr Vize’s or Mr Silverman’s evidence, and those where I have rejected it.

3.    WAS MR VIZE AN INDEPENDENT CONTRACTOR OR EMPLOYEE AT COMMON LAW?

28    A critical question that arises in the proceedings is whether Mr Vize was an employee or independent contractor at common law in the period from mid-2017 to the Termination Date. That question falls to be resolved by the application of principles set out below. This question arises because the definition of “national system employee” under the FW Act requires determination of whether Mr Vize was “an employee within its ordinary meaning”. Further, the definition of worker under s 3 of the LSL Act includes a person who is “employed”. It was common ground between the parties that these definitions required determination as to whether Mr Vize was (at the relevant times) an employee by the application of the prevailing common law test (as addressed further below). This question is related to but distinct from the question of whether Mr Vize was an employee under s 15AA of the FW Act from 26 August 2024, which I address in Part 5 below.

29    In order to answer this question, it is first necessary to detail my factual findings in relation to Mr Vize’s engagement with Whistle Funds.

3.1    Facts relating to Mr Vize’s engagement with Whistle Funds

3.1.1    The lead up and entry into the First Consultancy Agreement

30    On 27 March 2012, after being put in contact by a mutual acquaintance, Mr Silverman and Mr Vize met in person to discuss the prospect of Mr Vize working with Whistle Funds.

31    There was some dispute between the parties regarding what was said during the initial discussion between Mr Silverman and Mr Vize. I am satisfied that in general terms, what was discussed was that Mr Silverman expressed a willingness to engage Mr Vize to work for Whistle Funds, and that Mr Vize agreed to do so. I am also satisfied that the men discussed that Mr Vize would be engaged as a “consultant” and that he would do so using his business name of Advize, which he had recently established. I am also satisfied that the two men discussed that the consultancy arrangement would involve Mr Vize issuing invoices for work performed at an agreed rate and in respect of which Mr Vize would be responsible for collecting and remitting GST to the Australian Taxation Office (ATO), and that Mr Vize would otherwise be responsible for the payment of his own taxation liabilities.

32    I am satisfied that it was Mr Vize who proposed a consultancy arrangement as it suited his desire at the time for flexibility and to potentially work for other clients. I am satisfied that Mr Silverman was content to adopt that proposal. I am satisfied that these matters were discussed because, in large measure, they are reflected in the First Consultancy Agreement (as set out below). I am also satisfied that there was a general discussion about Mr Vize’s interest in running, but nothing much turns on this issue. As adverted to above, I am satisfied that in his evidence before me, Mr Vize sought to downplay the fact that he had established and registered a business name, wished to be engaged as a consultant, was open to the flexibility that such an arrangement would give him at that time, and how such an engagement was distinct to his previous engagement as an employee at Macquarie Bank.

33    On 28 March 2012, the parties entered into the First Consultancy Agreement commencing that same day and expiring on 30 April 2012 unless terminated earlier pursuant to that Agreement: cl 2. Despite being entered into by Mr Vize in his personal capacity, that Consultancy Agreement listed an ABN (93 688 922 539) held by Mr Vize and which used the business name Advize. That business name had been registered by Mr Vize on 8 February 2012.

34    Under the First Consultancy Agreement, Mr Vize was to provide services at a “Daily Rate” of $833 “per working day plus GST”: Vize 1 at ARV 3, cl 1.1(d). Clause 4(b) provided for the method of payment, which was made conditional upon the receipt of a valid tax invoice at the end of each “Payment Period”. The entirety of cl 4 was as follows:

4.    WHISTLE FUNDS MANAGEMENT DUTIES

(a)    Whistle Funds Management will give the Consultant access to all relevant information, and to all facilities as the Consultant may reasonably require to carry out the Services.

(b)    Subject to receipt of a valid tax invoice at the end of each Payment Period, Whistle Funds Management will within fifteen (15) calendar days of receipt of that invoice pay the Consultant for the time during which the Consultant provided the Services during the Payment Period. Payment will be calculated at the Daily Rate for the number of days on which the Services were provided during a particular Payment Period.

35    The word “Services” was defined in cl 1.1(h) as having the meaning given in cl 3.1. Clause 3 itself set out the specific and general duties of Mr Vize under the First Consultancy Agreement, as follows:

3.    PROVISION OF SERVICES

3.1    Specific duties

During this Agreement the Consultant will provide consultancy services as required by Whistle Funds Management and agreed between the parties from time to time (the "Services”) to include but not limited to financial modeling, cash flow management, and preparation of investor reports.

3.2    General duties

(a)    When performing the Services the Consultant will:

(i)    act with professional skill and diligence with a view to promoting, advancing and improving the business conducted by Whistle Funds Management;

(ii)    act reasonably and exercise all powers to perform the Services;

(b)    Whistle Funds Management will inform the Consultant as to changes to the Services to be provided from time to time.

(c)    The Consultant will determine how the Services are performed.

36    As I will return to below, Whistle Funds relied upon cl 3 to support its argument that Mr Vize could be directed to perform any duties as agreed between the parties. These arguments were relevant to its contentions as to the nature of the services to be provided by Mr Vize. Whistle Funds also relied upon cl 3.2(c) in support of its answer to Mr Vize’s claims for unpaid superannuation entitlements to which I will return in Part 8.2.1 below.

37    Clause 5 of the First Consultancy Agreement contained the following warranty and indemnity:

5.    WARRANTY AND INDEMNITY

(a)    The Consultant warrants that:

(i)    the Consultant is suitably qualified to provide the Services;

(ii)    the Services will be provided with due care and skill;

(iii)     the Consultant is entitled to enter into this Agreement and provide the Services without breaching any legal obligation owed to any third party

38    Mr Vize also had various duties with respect to confidentiality and privacy as follows (cll 6-7):

6.    CONFIDENTIALITY

(a)    The Consultant and Whistle Funds must keep Confidential Information confidential.

(b)    Each party may disclose Confidential Information that:

(i)    is required to be disclosed in connection with the Services;

(ii)    was public knowledge when this Agreement was signed or became so at a later date (other than as a result of a breach by either party): or

(iii)     is required by a court, tribunal or law to disclose (in which event, the relevant party must inform the other prior to disclosure).

(c)    The Consultant must take whatever measures are reasonably necessary to preserve the Confidential Information, including:

(i)    complying with all security measures established by Whistle Funds Management to safeguard Confidential Information from access or unauthorised use;

(ii)    keeping Confidential Information under the Consultant's control: and

(iii)     not removing Confidential Information from, or accessing Confidential Information from outside, Whistle Funds Management's premises without Whistle Funds Management's prior approval.

(d)    The parties agree that the covenants, obligations and restrictions including the provisions set out under the heading “Confidentiality” (collectively, “the Covenants”) contained in this Agreement are in all respects fair and reasonable and necessary to protect the legitimate business interests of both parties.

7.    PRIVACY PROTECTION

The Consultant agrees that, in addition to other standards of confidentiality and privacy they will:

(a)     only use the personal information Whistle Funds Management provides or which is handled for Whistle Funds Management for the purpose of fulfilling the Consultant's obligations under this Agreement pursuant to which the Consultant received access to the personal information:

(b)     take reasonable steps to ensure that the personal information used/held pursuant to this Agreement is protected against misuse and loss, and from unauthorised access, modification or disclosure:

(c)     not disclose any personal information without Whistle Funds Management written authority (except to the individual to whom the personal information relates) and notify Whistle Funds Management immediately if the Consultant becomes aware that a disclosure of personal information may be required by law;

(d)    handle personal information in a manner as directed by Whistle Funds Management from time to time, provided that the direction will not cause the Consultant to breach any legislation, principles, industry codes or policies by which they are bound:

(e)     notify Whistle Funds Management immediately if the Consultant becomes aware that they have or will breach any of these terms; and

(f)    not do anything with the personal information that will cause Whistle Funds Management to breach their obligations under the Privacy Act 1988.

39    Clause 10 of the First Consultancy Agreement purported to label the relationship between the parties as follows:

10.    STATUS OF PARTIES

(a)    The relationship between Whistle Funds Management and the Consultant is that of principal and contractor. Nothing in this Agreement will be taken as constituting an agency, partnership or employment relationship between the Consultant and Whistle Funds Management.

(b)    The Consultant has no authority to bind Whistle Funds Management by contracts or otherwise and are not partners agents or employees of Whistle Funds Management.

40    The evidence which I accept is that during the term of the First Consultancy Agreement, Mr Vize provided services to Whistle Funds, then issued invoices for those services on the letterhead of Advize, which specified an amount for GST: Silverman 1 at [30]-[31]. Mr Vize was not paid for time not worked, for example, when he travelled or undertook other activities: Silverman 1 at [36].

41    During this time, Mr Vize filed tax returns listing as the “[d]escription of main business or professional activity” “property consultancy & consultant”: Silverman 1 at WS-7.

42    The First Consultancy Agreement expired on 30 April 2012. The parties continued to conduct themselves as if that Agreement was still on foot until the Second Consultancy Agreement was entered into. Nothing presently turns on identification of the arrangement that was in place between 1 May 2012 to 1 August 2013.

3.1.2    The Second Consultancy Agreement

43    On 1 August 2013, Mr Vize signed the Second Consultancy Agreement.

44    There was a dispute between the parties as to the conversations that preceded entry into the Second Consultancy Agreement. Mr Silverman said that he did not recall the specific details or discussions, but that there was one or more conversations he had with Mr Vize around that time to the effect that Mr Vize had been providing helpful services to Whistle Funds, that Mr Vize was enjoying the benefits of being an independent contractor including from a tax perspective and having regard to the flexibility the arrangement afforded him, that Mr Vize did not wish to be an employee, and that Mr Silverman agreed that the arrangement should continue on this basis: Silverman 1 at [37]. Mr Vize denies that he said any of the things relating to the benefits of being engaged as an independent contractor and to his desire to continue with such an arrangement (Vize 2 at [20]), but did not provide any details as to what was in fact discussed between the parties at the time prior to entry into the Second Consultancy Agreement.

45    Mr Silverman initially said that he had asked Mr Vize to engage solicitors to prepare the Second Consultancy Agreement but retracted this evidence in his second affidavit. After reviewing further documents, Mr Silverman says he was the person who engaged solicitors to prepare a template consultancy agreement to form the base of the Second Consultancy Agreement and that Mr Vize thereafter made some amendments, including to add the definition of “Services” in Schedule 2 of the Second Consultancy Agreement: Silverman 2 at [13].

46    Given that both Mr Vize and Mr Silverman had little direct recall of the specific discussions, I do consider their evidence on these matters to have probative weight. I prefer to rely upon the objective documentary evidence from the time, which is reflected in the terms of the Second Consultancy Agreement. That Agreement demonstrates that both parties were, at that time, content to continue their engagement on the basis that Mr Vize would be engaged as a contractor.

47    The Second Consultancy Agreement is styled as being one between Whistle Funds and Advize. However, the name of Advize and its address bears a handwritten strike-through with the words “ANDREW” written to the side of it. The parties agreed that the Second Consultancy Agreement was one between Mr Vize and Whistle Funds. As already mentioned, I am satisfied that, at the time, both parties wished to continue the arrangement whereby Mr Vize would continue to be engaged as a consultant and would bear his own tax liabilities, including an obligation to collect and remit GST to the ATO. However, one fundamental change that was agreed between the parties at the time was that Mr Vize was to be paid a “Service Fee” of $20,000 per calendar month exclusive of GST.

48    Clause 1.1 of the Second Consultancy Agreement provides as follows:

1.1    The Company appoints the Consultant, and the Consultant accepts the appointment, to provide the services described in Schedule 2 (Services) to the Company from 1 August 2013 (Commencement Date) until this Agreement is terminated by either party in accordance with clause 8 of this Agreement].

…

49    Schedule 2 outlines the services to be provided by Advize as follows:

SCHEDULE 2 – SERVICES

Consultant’s Services:

The Consultant shall provide the Key Person to perform the role of Consultant.

The Key Person will:

During this Agreement the Consultant will provide consultancy services as required by Whistle Funds Management and agreed between the parties from time to time (the “Services”) to include but not limited to financial modelling, cash flow management, and preparation of investor reports.

At all times the Consultant will only receive payment after the services have been provided. In addition to this the Consultant is responsible for providing the necessary skills, equipment or tools to carry out the services. If there are any variations to the work they are to be carried out at the expense of the consultant.

50    Both parties relied upon Schedule 2 in support of their contentions as to the services that were contemplated to be performed under the terms of the Second Consultancy Agreement as I address below.

51    At cl 1.2, the “Key Person” is defined as Mr Vize “or such other person as agreed by the Parties (which agreement may be withheld by the Company at its absolute discretion) from time to time”. Both parties relied upon this clause. Mr Vize did so to support his contention that given the absolute discretion exercised by Whistle Funds, the Second Consultancy Agreement was one which was principally “for” the supply of his personal labour. Whistle Funds contended that this clause made it clear that the Agreement contemplated that others could supply the services and, therefore, it was not one principally “for” the supply of labour.

52    Clause 1.3 specifies that the “Key Person will perform work at such times as are reasonably necessary to provide the Services, as agreed between the parties from time to time”. Then, cl 1.7 requires that Advize “procure that the Key Person comply with all lawful and reasonable directions given concerning the performance of the Services”. Both parties again relied upon these clauses to support their respective contentions. Mr Vize did so in support of his contention that the Second Consultancy Agreement was one whereby Whistle Funds not only controlled the provision of his services but had the right to exercise such control. Whistle Funds claimed that these clauses in fact conveyed flexibility and autonomy to Mr Vize.

53    Clause 1.4 of the Second Consultancy Agreement specifies that Advize is an independent contractor as follows:

1.4    You are an independent contractor and nothing in this Agreement shall be deemed to make the Consultant or the Key Person (or any of them) an employee of the Company. Nothing in this Agreement constitutes a relationship of partnership or joint venture between the parties. Further, nothing in the dealings between you and the Company in which the Key Person is involved give rise to any direct relationship between the Company and the Key Person.

54    Clause 1.6 permits Advize to provide services to third parties on the following basis.

1.6    This Agreement does not prevent the Consultant or the Key Person from providing services to third parties subject to this clause, however the Consultant must ensure that it is able to provide the Services required during the term of the Agreement, through the Key Person, at the times mutually agreed in accordance with this Agreement.

55    Clause 2.1 deals with “[i]nvoicing and payment” as follows:

2    Invoicing and payment

2.1    Subject to clause 2.2, the Company will pay the Consultant a fee for work performed as set out in Schedule 3 (Service Fee).

2.2    Payment of the Service Fee is subject to:

(a)    the receipt by the Company of a valid tax invoice from the Consultant (Invoice); and

(b)    the Consultant providing the Company with evidence of the times at which the Services were performed, where reasonably requested by the Company.

2.3    In addition to the Service Fee, you may be eligible to receive performance fees from time to time at the sole discretion of the Company (Performance Fee).

2.4    The Company will pay, or reimburse, the Consultant for reasonable out of pocket expenses incurred by the Consultant from time to time in connection with the performance of the Services, where such expenses are properly substantiated by tax invoices, and are incurred with prior Company approval and in accordance with the Company's expenses policy.]

2.5    The payments stipulated in this clause 2 shall be the only payments the Consultant will receive for all expenses and disbursements incurred in providing the Services.

56    Schedule 3 specifies that Whistle Funds will pay Advize the “Service Fee” of $20,000 per calendar month exclusive of GST. With respect to tax, cl 6 provides as follows:

6    Liability, taxation and insurance

6.1    Nothing expressed or implied in this Agreement confers any liability on either party in respect of any loss, damage, cost or expense suffered or incurred by the other party, to the extent to which this results from any act or omission by that party.

6.2    If the Company or a Relevant Entity suffers any loss or damage (including consequential loss or damage) as a result of the Consultant (or any of them) failing to execute its obligations under this Agreement in a reasonable and lawful manner then, to the extent permitted by law, the Consultant must indemnify the Company and the Relevant Entity in respect of that loss or damage.

6.3    As between the parties, the Consultant is responsible and liable for paying all applicable taxes and other levies, including (without limitation) any income tax, pay-roll tax and workers' compensation payments in respect of the Consultant and its personnel (including the Key Person).

6.4    If the Company is required by law to deduct or withhold any Tax from any amount payable by the Company:

(a)     such Tax will be deducted from the Service Fee;

(b)     the Company will pay directly to the relevant authorities within the period for payment permitted by law the full amount of the deduction or withholding; and

(c)     the Company will, if available, promptly forward to the Consultant an official receipt or other documentation evidencing such payment to such authority.

6.5    The Consultant must effect and maintain all insurance required to be effected and maintained by the Consultant by law and must provide suitable evidence to satisfy the Company in this respect upon request. Without limit to the generality of this Agreement, the Consultant must ensure that it has all necessary insurance with respect to its personnel or agents under the provisions of any applicable legislation, including (without limitation) any workers' compensation or like insurance, or other such insurance required under legislation applicable in any jurisdiction in which the Service will be delivered.

6.6    Where required by the Company, the Consultant must effect and maintain professional indemnity insurance.

57    Clause 10 further deals with GST and other taxes as follows:

10    GST and other taxes

10.1    All amounts payable in this Agreement have been calculated without reference to GST (as defined in the A New Tax System (Goods and Service Tax) Act 1999 (Cth)) as amended, varied or replaced from time to time (GST Act) and any subsequent or replacement tax (GST).

10.2    If the Consultant is or will be required to pay GST in respect of any supply (as defined in the GST Act) to the Company under this Agreement:

(a)     then the prices in respect of those supplies will be increased by an amount equal to the amount of GST the Consultant is or will be required to pay (ignoring any input tax credits) on demand; and

(b)    the Consultant will provide a tax invoice to the Company as required by law and details of its Australian Business Number (If any).

The parties acknowledge that the Company may be required by law to withhold amounts from the Service Fee, for taxation purposes.

58    The Second Consultancy Agreement could be terminated on the following basis:

8    Termination

8.1    This Agreement may be terminated at any time, for any reason, either:

(a)    by the Consultant or the Company giving 1 months written notice or, if the Company elects, by making a payment in lieu equal to 1 months fee as outlined in Schedule 3; or

(b)    by agreement.

8.2    This Agreement may be terminated immediately by the Company (and without notice) during the term of the Agreement if:

(a)    the Consultant or the Key Person (or either of them) engage in any conduct in relation to the Services that the Company considers to be unlawful, dishonest, grossly negligent, harmful to the Company's interests or reputation, or fundamentally inconsistent with the obligations arising under this Agreement; or

(b)    the Consultant fails to remedy a breach in accordance with clause 7.

8.3    Upon the termination of this Agreement for whatever reason:

(a)    the termination will be without prejudice to the rights and remedies of any party in respect of any breach of this Agreement by another party, where that breach occurred before the termination of this Agreement;

(b)    the provisions of clauses 1.51.51.6, 4, 5 and 6, together with those other provisions of this Agreement which are incidental to, or required in order to give effect to, those clauses, will remain in full force and effect;

(c)    subject to the Consultant issuing the Company an Invoice for the relevant amount, the Company will pay the Consultant the amount of the Service Fee which reasonably reflects the extent of the Services performed by the Consultant prior to termination and not already invoiced by the Consultant to the Company;

(d)    the Consultant will procure that the Key Person, if required by the Company, will cease any directorships or duties that the Key Person holds in relation to the Company and/or any Relevant Entity, and to authorise the Company Secretary of the Company to take any steps required to give effect to this on hisbehalf;

(e)    to the extent permitted by law, the Consultant agrees that the Company may withhold any Service Fees that are due:

(i)    where any property of the Company is not returned; or

(ii)    where the Company or Relevant Entity suffer any loss or damage (including consequential loss or damage) as a result of the Consultant failing to provide the Services under this Agreement in a reasonable and lawful manner, up to an amount equivalent to the loss or damage suffered;

(f)    the Consultant agrees that the Company may set off any amounts it owes the Consultant against any amounts that the Consultant owes the Company at the date of termination, to the extent permitted by law;

(g)    the Consultant must, and must procure that the Key Person must, return all of the Company's and/or Relevant Entity's property (including property leased by the Company) to the Company on termination, including all written or machine readable material, Confidential Information, software, computers, security passes, keys and vehicles;

(h)    the Consultant must not record any Confidential Information in any form;

(i)    the Consultant must certify to the Company that it has complied with its obligations under this clause; and

(j)    the Consultant must do all things and execute all documents necessary to give effect to the above obligations.

After this Agreement ends, the Company may require the Consultant's reasonable assistance in any threatened or actual legal or other proceedings in which the Company or a Relevant Entity is involved for which the Consultant will be reimbursed all reasonable costs approved by the Company in advance.

59    Whistle Funds relied upon cl 8 to contend that the Second Consultancy Agreement was never validly terminated in accordance with its terms until the Termination Date and, as a result, none of the changes that occurred prior to the Termination Date were ones that had any contractual effect.

60    Clause 11, which deals with various “[g]eneral” matters provides as follows:

11.1    This Agreement records the entire arrangement between the parties relating to all matters dealt with in this Agreement and supersedes all previous arrangements, whether written, oral or both, relating to such matters.

11.2    No waiver of any breach, or failure to enforce any provision, of this Agreement by any party will limit or waive its right to subsequently enforce this Agreement.

11.3    This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia, in respect of all matters relating to this Agreement.

11.4    No amendment to this Agreement will be valid unless in writing and signed by an authorised representative of each party.

11.5    Any clause in this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable.

61    As will be evident, cl 11.4 provides that no amendments to the Second Consultancy Agreement will be valid “unless in writing and signed by an authorised representative of each party”. Whistle Funds relied upon this clause to contended that none of the subsequent changes had any contractual effect as they did not constitute variations made in accordance with cl 11.4.

62    Mr Silverman gave evidence that he did not observe any “material difference” in the manner in which Mr Vize performed services for Whistle Funds between 2012 and 2021, and that the main services that Mr Vize provided included (Silverman 1 at [47]):

(a)    financial modelling;

(b)    cash flow management;

(c)    preparation of investor reports; and

(d)    manage investor relations.

63    Whistle Fund submitted that these services fell within the “consultancy services” under Schedule 2 outlined above (see [49]). Mr Silverman gave evidence that from the commencement of the Second Consultancy Agreement, Mr Vize continued to provide services in the same manner described at [40] above, that is, Mr Vize provided services to Whistle Funds, then issued invoices for those services, which specified an amount for GST, via Advize: Silverman 1 at [42]. Mr Vize also continued to list his taxable income in lodgements made with the ATO as coming from his “main business or professional activity” of “property consultancy & consultant”: Silverman 1 at WS-7.

64    Mr Silverman gave further evidence that prior to 2020, Mr Vize would prepare payment invoice distribution reports, which included paying Mr Vize’s invoices, for Mr Silverman’s approval: Silverman 1 at [39]. However, from in or about 2020, he says that Mr Vize “processed and submitted invoices as payments and had authorisation to transact out of [Whistle Funds’] Westpac business account to pay his own invoices”.

65    Mr Vize disagreed with Mr Silverman’s evidence as to the payment arrangements. Mr Vize says that from around 1 July 2017, the payments he received from Whistle Funds were made by way of automatic monthly direct debits and that he was not required to submit invoices in order to receive payments: Vize 1 at [36]-[38]. The only approval that he sought from Mr Silverman was initially setting up the recurring direct debit: Vize 2 at [22]. Mr Silverman did not dispute that this was the case.

66    In relation to matters concerning invoicing and the method of payment, I prefer Mr Vize’s evidence. I am satisfied that from sometime in or about 1 July 2017, Mr Vize commenced being paid by way of a monthly direct debit irrespective of the provision of invoices.

3.1.3    Alleged Appointment to Fund Manager

67    Mr Vize claims that he was promoted and appointed to the position of Fund Manager effective from about 1 July 2017, but that no written agreement was entered into at this time.

68    There was a dispute between the parties as to the conversations that occurred in or about mid-2017.

69    Mr Vize says that prior to 1 July 2017, he had a number of discussions with Mr Silverman and Mr Graham Levy, Whistle Funds’ then Chief Financial Officer, regarding the invoices he was submitting, which, at that point, varied depending on how many days he worked. Mr Vize says that at that time, he was not invoicing Whistle Funds for sick days, public holidays or personal holidays: Vize 1 at [30]. Mr Vize says that during these discussions, Mr Silverman and Mr Levy proposed that Mr Vize would be paid a fixed annual amount, which would be paid monthly regardless of the days he worked in the month: Vize 1 at [31]. Mr Vize further says that Mr Levy confirmed that he would be entitled to sick leave and annual leave the same as everyone else in the Whistle Funds’ office: Vize 1 at [32]. Mr Vize says that the agreement at that time was that he would be paid an annual income of $250,000, which would be paid in equal monthly instalments. Mr Vize further says that from this time onwards, he was not required to issue invoices in order to receive payments other than when specifically requested to do so or where he was making a claim for reimbursements for work related expenses: Vize 2 at [42].

70    It was put to Mr Vize by Senior Counsel for the respondents that he provided invoices to Whistle Funds as a matter of course. Mr Vize denied this and maintained that prior to 1 July 2017, he provided invoices as a matter of course, but that from 1 July 2017, he supplied invoices on request and was not required to supply invoices in order to be paid: T81.27-T82.32. It was also put to Mr Vize that he provided invoices to Whistle Funds on request in 2024 because Whistle Funds required him to do so for payment to be made to him and that invoices were the basis upon which his fee was paid: T137.29-T138.8. Again, Mr Vize rejected these propositions and maintained that he provided the invoices for an audit of Whistle Funds: T138.20-.28.

71    Mr Silverman denied that there was ever any formal appointment of Mr Vize to the position of Fund Manager but acknowledged that the substance of the services Mr Vize provided at that time were those of a Fund Manager and that there had been an informal transition whereby Mr Vize began to focus more on funds management and reporting as the Whistle Funds business grew and evolved: Silverman 1 at [56]. This fact is corroborated by an email that Mr Vize sent on 8 November 2017 which set out the duties he was performing at the time: Silverman 1 at [56], WS-13. Mr Silverman did not disagree with the fact that Mr Vize was providing these services. Nor did he disagree with the paragraphs of Mr Vize’s affidavit which set out the services that the latter was performing in the role of Fund Manager: Vize 1 at [35]; Silverman 1 at [60].

72    Mr Silverman says that he recalled having discussions with Mr Vize in around July 2017 about Mr Vize being paid a fixed monthly amount so as to ensure a smoothed cash flow position for Mr Vize, rather than the variable amounts he was being paid from month to month: Silverman 1 at [57]. Mr Silverman says that what was agreed at this time was that Mr Vize would be paid a “fixed retainer” for his services and this also suited Whistle Funds’ cash flow management: Silverman 1 at [58]. Mr Silverman says that he was not aware of any discussion between Mr Vize and Mr Levy whereby it was agreed that Mr Vize would be paid annual leave and sick leave: Silverman 1 at [59].

73    The objective documentary evidence confirms that in the lead up to mid-2017, Mr Vize had been issuing invoices to Whistle Funds for payment of amounts which varied from month to month: Exhibit 1. The documentary evidence also confirms that after this time, Mr Vize did not issue invoices on a regular basis or as a condition of receiving payment. Whistle Funds made payments to Mr Vize on monthly basis irrespective of whether he had issued an invoice, whether he had performed work, or was on sick leave or annual leave, and whether there were any public holidays within the relevant month. The documentary evidence also corroborates that Mr Vize occasionally issued invoices for reimbursement of expenses, or when he was specifically asked to do so which usually occurred after the fact and in respect of which the invoices were backdated.

74    In respect of these matters, I prefer Mr Vize’s evidence and I accept it.

75    Consistent with Mr Vize’s evidence (and also, in fact, with Mr Silverman’s account) by 1 July 2017, Mr Vize’s role had evolved into one which involved him performing a funds management and reporting role. As noted above, Mr Silverman did not disagree with Mr Vize’s account that his day-to-day duties in the period from 1 July 2017 until 7 April 2021 were as follows:

(a)    I acted as the first point of contact between Whistle Funds and its clients (who we referred to as unit holders), accountants, bankers, valuers, lawyers, real estate agents, tenants and insurers.

(b)    I represented Whistle Funds externally and internally in all of its dealings.

(c)    I presented at formal Unitholder meetings on behalf of Whistle Funds.

(d)    I signed office leases and licences on behalf of Whistle Funds.

(e)    I managed all queries from Whistle Funds' investor clients.

(f)    I led the Whistle Funds acquisitions pipeline, and prepared the debt underwriting proposals and investment memorandums for raising equity from unit holders.

(g)    I managed transactions from their commencement to settlement.

(h)    I created the financial modelling capability that Whistle Funds used when advising its clients.

(i)    I developed sensitivity analysis switches in the model where Whistle Funds could advise its clients on how interest rates, anchor tenant turnover, inflation, vacancy assumptions and cap rates would impact investment returns.

(j)    I worked with Whistle Funds’ finance capacity to create models which allowed Whistle Funds to provide granular modelling data for its clients with live links to the online accounting data.

76    Nor did Mr Silverman dispute that Mr Vize’s duties were reflected in an email that Mr Vize sent on 8 November 2017, which summarised his duties as follows (see Silverman 1 at [56], WS-13):

Acquisitions

- Preparation of the feasibility model;

- Preparation of the Investor Report;

- Carry out various sensitivity Analysis scenarios in relation to the proposed transaction;

- Source Debt Funding

- Liaise with Lenders to secure Debt Funding package for project; and

- Co-ordinate discussions with Lawyers in relation to the negotiations.

- Carry out Investor Administration as required;

- Carry out interest rate sensitivity Analysis;

- Carry out various scenarios in relation to the Anchor Turnover;

- Co-ordinate discussions with Lawyers in relation to the negotiations;

- Attend to Conditions precedent in relation to the debt funding;

- Engage valuer;

- Track and Co-ordinate Equity payments;

- Set up Trust Management Agreement and Trust Constitution

- Manage Settlement Process

Investor Reporting / Investor Relations

- Prepare all documents for Investor meetings

- Every 6 months report to all Unitholders via Asset Distribution Reports

- Maintain Investor Database

- Prepare distribution Statements

- Co-ordinate payments

- Issue tax statements annually

- Update Investor Holding Statements

- Day to day investor queries

- Manage any transfers of Units

- Update Unitholder Register

- Issue Unit Certificates

Investment Management

- Ensure any decisions relating to the assets are in line with reforecasts

- Plan and manage all Asset refinancing events

- Ensure lending rates for each project are appropriate and where analysis identifies enter into long term instruments to protect investor returns

- Liaise with Lenders day to day and attend to queries

- Attend to Annual Review requirements with each lender across all assets

-

Capital Expenditure

- Approve Capital Expenditure is in line with budget

77    Although the agreed fact between the parties was that, throughout the whole of his engagement from 28 March 2012 to 5 March 2025, Mr Vize performed services including financial modelling, cash flow management and preparation of investor reports, it is evident from the above that from at least in or about 1 July 2017, he was performing a considerably greater range of services. I will return to the issue of whether such duties fell within the definition of “Services” in Schedule 2 of the Second Consultancy Agreement (see [49] above) below.

78    I also accept Mr Vize’s evidence that from in or about July 2017, he began to be paid a fixed annual income in equal monthly instalments and that he was not required to issue invoices as a condition of receiving payment from Whistle Funds. I also accept Mr Vize’s evidence that he was paid the fixed monthly instalments by way of direct debits from Whistle Funds’ accounts and such payments were made irrespective of whether he performed work during that month or not, or whether he was absent on account of sick leave, annual leave or public holidays.

79    The evidence, which I accept, is that Mr Vize’s annual income was $250,000 until September 2019, when it was increased to $300,000, and was paid by way of scheduled direct debit deposits into his bank account on the first day of each month: Vize 1 at [36(a)]-[36(c)].

80    As already mentioned, Mr Vize’s evidence as to the method and frequency of payments is corroborated by the objective documentary records. The invoices issued by Mr Vize in the period from 2 April 2012 to approximately mid-2017 disclose that they typically referred to the provision of consultancy services or variants of that formulation of words. These invoices varied in amounts invoiced from month to month. Some invoices contained bare details, and others contained more itemised breakdowns of the work performed by Mr Vize. Some invoices contained a claim for reimbursements and other such claims were made under separate invoices. Some invoices made a claim for payment of commission or bonuses.

81    However, after mid-2017, there are fewer invoices that are available, which is consistent with Mr Vize’s evidence that he only issued invoices when he was specifically requested to do so by the Chief Financial Officer or another person within Whistle Funds, “usually post year end when a few invoices were selected randomly for audit”: Vize 1 at [37]. He says this only occurred on occasion and when it did, he would create sample invoices for those months and backdate them: Vize 1 at [37]. An example of this occurred when in or about October 2024, Mr Vize was requested by an internal accountant to provide a sample of invoices for the purposes of an audit, which he provided (see Silverman 2 at WS-52). I prefer and accept Mr Vize’s evidence on these matters.

82    Based on the evidence before me, I am satisfied that from in or about mid-2017, Mr Vize did not need to provide invoices to Whistle Funds in order to be paid.

83    I accept Mr Vize’s unchallenged evidence that Mr Levy had confirmed to him that he would be paid for sick leave and annual leave. Mr Silverman may not have had knowledge of this discussion, but there is nothing to suggest that Mr Vize invented his evidence in this regard. Nor was it put to Mr Vize that he had invented this evidence or that it was untrue. Mr Vize’s evidence is consistent with the objective documentary record that Mr Vize was in fact paid monthly irrespective of any absence due to illness or annual leave.

84    Separately, it is not disputed that Mr Vize was paid the following amounts in addition to his monthly payments:

(a)    $92,551 in May 2018;

(b)    $188,000 in December 2018 as a "performance fee in relation to the Bourke Road transaction”; and

(c)    $57,648 in December 2020 as a "performance fee in relation to work performed during FYJun20".

85    In relation to taxation arrangements during these periods, it was common ground that Mr Vize collected and remitted GST to the ATO, Whistle Funds did not deduct any amounts for Pay as you Go (PAYG) taxation from the amounts paid to Mr Vize, Mr Vize was responsible for payment of his own income taxation liabilities, and Mr Vize submitted business activity statements (BASs) every quarter and continued to identify himself as conducting a business in property consulting.

86    Based on these findings, I address the parties’ submissions as to the effects on the contractual arrangements between them at Part 3.5 below.

3.1.4    Alleged appointment to the role of Managing Director and Chief Executive Officer

87    On 7 April 2021, Mr Silverman issued Mr Vize with a letter on behalf of Whistle Funds, offering him the position of Managing Director (Offer Letter). That letter provides:

Dear Andrew

We established WFMC and grew it together these past ten years, from a start-up to a sustainable high performing Funds Manager with an enviable performance record.

I can honestly say ours is a truly remarkable relationship. Together we navigated and found pathways in a seamless often stormy landscape to build WFMC. Thank you for your loyalty and endurance, Andrew. You have my respect beyond friendship.

You have also earned the confidence and trust of our Investors, Bankers and the Whistle Team over the past ten years and it is now with enthusiasm and pride that I relinquish the role and invite you to the office of Managing Director at WFMC should you so choose.

I will continue to work beside you as Chairman as we implement the asset sale strategy.

I hope you will accept the role of Managing Director and enjoy growing WFMC. It would be helpful if you would kindly prepare a note for discussion covering all items you wish to address including 10% equity and an announcement.

With kind regards

Yours sincerely,

William Silverman

88    Mr Vize alleges that he was also offered the role of CEO of Whistle Funds and accepted both positions by signing and returning the Offer Letter: Vize 1 at [54]-[55].

89    Mr Vize’s alleged appointment to the roles of CEO and Managing Director was announced to at least one of Whistle Funds’ investors on 1 May 2021 via a letter which relevantly stated (Vize 1 at [58], ARV18):

It is with great pleasure that I announce our appointment of Andrew Vize as Chief Executive and Managing Director of Whistle Funds Management Company Pty Limited from 1st May 2021.

I relinquish those roles with enthusiasm and pride to work beside Andrew on strategic issues going forward as Chairman of WFMC. Andrew's diligence and professionalism has earned the confidence and trust of our Investors, our Bankers and the wider Whistle Team. I am grateful to Andrew for his loyalty and endurance and look forward to seeing WFMC flourish under his leadership.

90    Mr Silverman accepted that Mr Vize had been appointed to the role of Managing Director but denied that he was appointed to the role of CEO: T223.44-T.224.2. Mr Silverman maintained that Mr Vize provided “additional services” to those relating to funds management: Silverman 1 at [82].

91    I reject Mr Silverman’s evidence that the duties that Mr Vize performed in the role of Managing Director were merely “additional services”. Mr Silverman gave evidence that the “additional services” which Mr Vize was to provide included the following (Silverman 1 at [82]):

(a)    attend to conditions precedent in relation to the debt funding;

(b)    source debt funding / pay out debt funding;

(c)    liaise with lenders day to day and attend to queries;

(d)    prepare tax statements;

(e)    maintain and update cash flow, models, turnover tracker, etc;

(f)    prepare the feasibility model;

(g)    prepare investor reports;

(h)    attend unitholder meetings;

(i)    prepare all documents for investor meetings;

(j)    maintain the investor database;

(k)    update investor holding statements;

(I)    manage any transfers of units;

(m)    update unitholder register;

(n)    issue unit certificates;

(o)    ensure any decisions relating to the assets are in line with reforecasts; and

(p)    plan and manage all asset refinancing events.

92    Mr Vize’s evidence (which was mostly unchallenged in relevant respects) was that he was to, and did, perform the following duties:

(a)    I managed, alongside Ms Jennifer de Jong (the then-Chief Operating Officer of Whistle Funds), aspects of Whistle Funds human resources obligations. Specifically:

i.    I approved leave requests of Whistle Funds' staff (excluding myself) via Whistle Funds’ Xero leave management system. I also kept Mr Silverman informed of the leave balances of Whistle Funds’ employees.

ii.    I conducted meetings where employees of Whistle Funds were required to be dismissed or made redundant. For example, on 2 June 2023, I travelled from Sydney to lluka to inform Ms Veronica O'Dwyer, a member of Whistle Funds' property management team, that her role had been made redundant. A copy of the letter I provided to Ms O'Dwyer on behalf of Whistle Funds is annexed to this affidavit and marked “ARV15”.

iii.    I liaised with Mr Silverman regarding team motivation and the management of workload. A screenshot of text messages between myself and Mr Silverman sent on 7 May 2024 is annexed to this affidavit and marked “ARV16”.

iv.    In May 2024, Mr Silverman confirmed in an email to me that his newly hired Executive Assistant (previously his cleaner), Ms Alina Heupel, who was based in Byron Bay, would be employed by Whistle Funds and report directly to me.

(b)    I set and executed the asset sale strategy across all of Whistle Funds’ retail portfolio.

(c)    I integrated financial and accounting modelling within Whistle Funds to deliver real-time management and financial reporting for Whistle Funds’ clients.

(d)    I coordinated the advice that Whistle Funds received from its financial, legal and tax advisers.

(e)    I managed all aspects involving the preparation of investor reports.

(f)    I managed Whistle Funds’ governance obligations, including the payment of distributions to unit holders in the Trusts managed by Whistle Funds and Whistle Funds’ tax statements and signing the annual financial accounts.

93    Mr Silverman accepted that prior to Mr Vize’s appointment to the role of Managing Director, it was Mr Silverman who held that role and was performing the duties associated with it: T225.1-.11. Thereafter, Mr Silverman ceased to perform those duties. In my view, the services that Mr Vize thereafter was to perform, and did perform, were not merely additional to his existing duties but reflected that he had been appointed or promoted to a new position.

94    Again, although the agreed fact between the parties was that, throughout the whole of his engagement from 28 March 2012 to 5 March 2025, Mr Vize performed services including financial modelling, cash flow management and preparation of investor reports, it is plain that from at least early April 2021, Mr Vize was performing the role of Managing Director of Whistle Funds, which involved a considerably greater range of services.

95    The respondents contended that irrespective of whether Mr Vize was appointed to a new position, the duties he performed fell within the scope of the “Services” outlined in Schedule 2 of the Second Consultancy Agreement: Respondents’ Opening Submissions dated 16 April 2026 (ROS) at [13(b)]. I address this issue at Part 3.6 below.

96    I accept that the Offer Letter did not refer to Mr Vize being appointed to the position of CEO, even though that fact was represented to at least one investor. I am not satisfied that Mr Vize was appointed to that role, but nothing much turns on this fact.

97    I also accept that the arrangement between the parties continued on the basis that Mr Vize only supplied invoices when requested to do so, the payment of his fees was not conditional upon receipt by Whistle Funds of invoices issued by Mr Vize, Whistle Funds did not deduct any amounts on account of PAYG tax, Mr Vize continued to collect and remit GST to the ATO, he continued to be responsible for his own taxation liabilities, and he continued to be paid irrespective of absences due to sick leave, annual leave or public holidays.

3.1.5    Taking of leave by Mr Vize during the engagement

98    It will be apparent from the above that the parties were agreed that between 2012 and 1 July 2017, Mr Vize took several periods of leave, but did not invoice Whistle Funds in respect of those periods: Vize 1 at [28]; Silverman 1 at [54]. Mr Silverman gave evidence that Mr Vize was not required to ask for “permission” or insert any leave into the Whistle Funds Xero system (operated by Whistle Funds to manage matters relating to its staff), but did notify Mr Silverman when he intended to take leave, which Mr Silverman regarded as a “courtesy”: Silverman 1 at [54].

99    However, the parties were in dispute as to what occurred after 1 July 2017. As addressed above, I accept that at or about this time, Mr Levy confirmed to Mr Vize that he would be entitled to sick leave and annual leave. This is consistent with what happened thereafter in that Mr Vize was in fact paid for absences on account of illness and holidays. In this respect, it is not in dispute that from 1 July 2017 until the Termination Date, Mr Vize took several periods of leave and continued to be paid during these periods: Vize 1 at [41]-[45], [65]. Mr Vize gave evidence that he followed the following process when taking leave (Vize 1 at [41]):

(a)    Mr Vize would first inform Ms Jennifer de Jong, the former Chief Operating Officer of Whistle Funds, or Mr Silverman prior to Ms de Jong’s appointment;

(b)    Ms de Jong would approve the leave;

(c)    the leave would be recorded in a central leave tracker used to manage workflow, staffing schedules and Mr Silverman’s travel;

(d)    Mr Vize would book his holiday; and

(e)    closer to his travel dates, Mr Vize would follow up with Ms de Jong to ensure Mr Silverman had been informed and the leave dates were in the tracker referred to above.

100    Mr Vize also deposed that he would communicate with Ms de Jong when taking “sick days” or time away from his desk for medical appointments: Vize 1 at [44].

101    I accept Mr Vize’s evidence as to these matters.

102    Mr Silverman’s evidence was that Mr Vize informed persons at Whistle Funds when he would be away, which Mr Silverman regarded as a courtesy only: Silverman 1 at [70]. Mr Silverman gave evidence that the leave taken by Mr Vize differed from the leave taken by employees of Whistle Funds in several key respects (Silverman 1 at [68(b)]-[68(f)]):

(a)    Whistle Funds tracked the leave balances of its employees but did not do so in relation to Mr Vize (see Silverman 1 at WS-21);

(b)    Ms Jennifer de Jong, the former Chief Operating Officer of Whistle Funds, who Mr Vize deposes approved his leave, did not have authority to approve leave of employees at Whistle Funds (see Silverman 1 at WS-22);

(c)    the formal process for employees of Whistle Funds to take annual leave involves entering a leave request in Xero which, from in or about 2020, Mr Vize was responsible for approving; and

(d)    Mr Silverman says that Mr Vize never entered a leave request in Xero and, accordingly, his leave history in Xero shows as empty: Silverman 1 at WS-23 and WS-24.

103    It may be accepted that Mr Vize’s leave was not recorded or tracked in the same way as persons who were expressly engaged as employees of Whistle Funds. However, nothing about that fact alone causes me to reject the evidence given by Mr Vize about the steps he took to take sick and annual leave or the fact that he was paid for those absences. As noted above, I accept Mr Vize’s evidence in this respect.

3.2    Principles to be applied in determining whether an employment relationship exists

104    The majority judgments in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 275 CLR 254 have laid down the principles to be applied in the determination of the existence of an employment relationship where the rights and duties of the parties are “comprehensively committed to a written contract” and that contract is not said to be a sham: Personnel Contracting at [43]-[44] (Kiefel CJ, Keane and Edelman JJ); see also Cropper v Energy Action (Australia) Pty Ltd (No 2) [2025] FCA 663 at [94]-[95] (Snaden J).

105    Where the relevant contract between the parties is in written form, it is the legal rights and obligations established by the terms of that contract that must be assessed in the determination of the question of whether a person has been engaged as an employee or independent contractor: Personnel Contracting at [43]-[44]. In such a case, the relevant determination is not to be examined by reference to the conduct or the “subsequent conduct” of the parties or the performance of the contract by the parties in practice: Personnel Contracting at [54]-[55] (Kiefel CJ, Keane and Edelman JJ).

106    Where there is no written contract, the identification of the parties’ contractual rights and duties must proceed somewhat differently but the fundamental task remains the same as where a written contract exists: the parties’ contractual rights and obligations are to be ascertained and characterised: EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 at [7] (Katzmann and Bromwich JJ; Lee J concurring in separate reasons), citing Personnel Contracting at [177] (Gordon J, with Steward J agreeing) and Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9] (Kennett J); see also EFEX Group at [52]-[56] (Lee J). The terms of such a contract must be determined on the application of orthodox principles. Such terms may be inferred from all the circumstances, including by reference to the parties’ words and conduct at the time of the formation of the contract or a course of dealing, or such terms may be implied as a matter of law or fact. In certain circumstances, it may be permissible, within limits, to have regard to post-contractual conduct where it is admissible in seeking to resolve what was said in the formation of the contract, to infer the existence of the contract from the acts and conduct of the parties, or to identify its necessary terms: EFEX Group at [56]-[59] (Lee J); see also Cropper at [97], [129] (Snaden J).

107    It follows that, whether the contract between the parties is written or not, the characterisation of the relationship between the parties depends on an assessment of the rights and obligations of the parties determined by reference to the terms of the contract between the parties: EFEX Group at [8] (Katzmann and Bromwich JJ), citing Chiodo at [8]-[9] (Kennett J), and [52] (Lee J).

108    Application of the so-called “multifactorial” test has been eschewed. The judgment of Kiefel CJ and Keane and Edelman JJ in Personnel Contracting makes it clear at [47] and [55] that the “multifactorial” test or approach has no role to play where the relevant contract is comprehensively in written form. That is because that “test” approached the terms of the relevant contract as but only one factor that had to be balanced against all the dealings between the parties: see Personnel Contracting at [55] (Keifel CJ and Keane and Edelman JJ). Gordon J (with whom Steward J agreed) considered the “multifactorial” approach at [186]ff and concluded at [189] that it must be “put to one side”.

109    The central question remains whether the relevant person is an employee. In addressing that question, the Court is to assess various indicia which may point in one direction or another as to the character of the relationship, but the indicia so considered are those found in the contract between the parties and do not entail a wide-ranging enquiry that rakes over the history of the dealings between the parties. Where there is no written contract or it is only partly written, there may be “greater challenges” in undertaking this exercise as it will first be necessary to identify the contract and its terms: EFEX Group at [56] (Lee J). However, the task remains to determine the character of the relationship by reference to that contract and its terms. For example, in EFEX Group, it was by reference to the terms of the contract that the Full Court determined that particular indicia weighed in favour of the conclusion that the worker there was an independent contractor and not an employee: per Katzmann and Bromwich JJ at [38]-[49] and per Lee J at [53].

110    In addressing the central question, it may be useful to consider whether the person is working in their own business or in the business of another. Kiefel CJ and Keane and Edelman JJ in Personnel Contracting stated at [39]:

While the “central question” is always whether or not a person is an employee, and while the “own business/employer’s business” dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee’s work was so subordinate to the employer’s business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist.

(Footnotes omitted).

111    As to these matters, Gordon J (with whom Steward J agreed) stated at [181]-[183]:

Asking whether a person is working in their own business may not always be a suitable inquiry for modern working relationships. It may not take very much for a person, be they low-skilled or otherwise, to be carrying on their own business. The reality of modern working arrangements, the gig economy, and the possibility that workers might work in their own business as well as one or more other businesses in the same week, suggest that focusing the analysis on “own business” considerations distracts attention from the relevant analysis — whether the totality of the relationship created by contract between the person and a purported employer is one of employee and employer. The parties to, and the terms of, the contract may show that the purported employee entered into the contract as part of their own business.

Another reason for not asking whether a person is carrying on a business of their own is that that inquiry will ordinarily direct attention to matters which are not recorded in the contract, such as what “the parties said or did after it was made”. For instance, in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd, North and Bromberg JJ said that some of the “hallmarks of a business” are conducting a commercial enterprise “as a going concern”, the “acquisition and use of both tangible and intangible assets in the pursuit of profit”, the “notion of system, repetition and continuity”, and “operat[ing] in a business-like way”. But, unless those matters are provided for in the contract, they are not relevant and should be put to one side.

The better question to ask is whether, by construction of the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer. That question is focused on the contract, the nature of the relationship disclosed by the contract and, in this context, whether the contract discloses that the person is working in the business of the purported employer. It invites no inquiry into subsequent conduct. A consequence of a negative answer to that alternative question may be that the person is not an employee. Another consequence may be, but does not have to be, that they have their own business. As five judges of this Court said in Hollis v Vabu Pty Ltd, both employees and contractors can work “for the benefit of” their employers and principals respectively, and so that, “by itself”, cannot be a sufficient indication that a person is an employee (emphasis added). That does not detract from the fact that where the contract is oral, or partly oral and partly in writing, subsequent conduct may be admissible in specific circumstances for specific purposes — to objectively determine the point at which the contract was formed, the contractual terms that were agreed or whether the contract has been varied or discharged.

(Original emphasis.)

112    In EFEX Group, Katzmann and Bromwich JJ considered the abovementioned principles and stated at [12]-[14]:

The central question that remains, under an unwritten contract as in a written contract, is whether or not a person is an employee. As was observed in Personnel Contracting at [39] per Kiefel CJ, Keane and Edelman JJ (see also [113] per Gageler and Gleeson JJ), while the dichotomy between a person’s own business and the putative employer’s business may not be perfect so as to be of universal application, because not all independent contractors are entrepreneurs, that approach is still useful. That is because it focuses attention on whether the putative employee’s work as contracted to be performed was so subordinate to the putative employer’s business as not to be part of an independent enterprise. It also avoids the danger of an impressionistic and subjective judgement, or ticking off a checklist, running counter to objective contractual analysis.

Once the contours of the legal relationship are identified, its characterisation as one of employment or not often hinges on two considerations identified in Personnel Contracting, in particular by Kiefel CJ, Keane and Edelman JJ at [36]–[39], each of which may involve questions of degree, namely:

(a)    the extent to which the putative employer has the right to control how, when and where the putative employee performs the work; and

(b)    the extent to which the putative employee can be seen to be working in their own business as distinct from the putative employer’s business.

However, as a cautionary note, in some circumstances the proper analysis may be more nuanced than that. As Gordon J pointed out in Personnel Contracting at [181]–[183] (Steward J agreeing), asking whether a person is working for their own business may not always be a “suitable inquiry for modern working relationships”, given that it may not take much for even a low skilled person to be carrying on their own business. Analysis based on this dichotomy may distract from the relevant underlying analysis of the totality of the relationship created by the contract. It may also direct attention to non-contractual considerations, which are not relevant unless forming part of the contract itself. The better question may be to ask whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the purported employer, so as to maintain the correct focus. That is, if the contract does not lead to the conclusion that the person was working in the business of the asserted employer, then the person will not be an employee. This approach has some traction in this case.

113    The assessment of the relevant indicia by reference to the rights and obligations of the parties as established by the contract is not affected by the labels the parties have applied to the relationship in that contract. In Personnel Contracting, the Court made the following statements at [63]-[64], [66] and [79] (Kiefel CJ, Keane and Edelman JJ) with respect to the relevance of labels imposed by the parties:

63.    To say that the legal character of a relationship between persons is to be determined by the rights and obligations which are established by the parties’ written contract is distinctly not to say that the “label” which the parties may have chosen to describe their relationship is determinative of, or even relevant to, that characterisation.

64.    Subject to statute, under the common law the parties are free to agree upon the rights and obligations by which they are to be bound. But the determination of the character of the relationship constituted by those rights and obligations is a matter for the court.

…

66.    As a matter of principle, however, it is difficult to see how the expression by the parties of their opinion as to the character of their relationship can assist the court, whose task it is to characterise their relationship by reference to their rights and duties. Generally speaking, the opinion of the parties on a matter of law is irrelevant. Even if it be accepted that there may be cases where descriptive language chosen by the parties can shed light on the objective understanding of the operative provisions of their contract, the cases where the parties’ description of their status or relationship will be helpful to the court in ascertaining their rights and duties will be rare.

…

79.    The ASA described Mr McCourt as “the Contractor”. But the effect of the rights and duties created by the ASA was that Mr McCourt was engaged by Construct to serve Construct in its business. The rights and duties agreed between Construct and Mr McCourt leave no room for ambiguity as to the character of that relationship. For the reasons stated above, that the parties have described their relationship a certain way cannot change the character of the relationship established by their rights and obligations. Lee J was right to suggest that it was erroneous in point of principle to use the parties’ description of their relationship to resolve uncertainty produced by application of the multifactorial test. There was no occasion to have recourse to the label chosen by the parties, whether as a “tie-breaker” or otherwise.

See also Gordon J at [184].

3.3    Mr Vize’s pleaded case and the respondents’ pleading point

114    Mr Vize’s pleaded case is that the Second Consultancy Agreement was superseded upon his appointment to the position of Fund Manager, such that he became an employee from 1 July 2017. His pleaded case in this respect is as follows (ASOC at [8]-[9]):

8.    As Fund Manager, Mr Vize:

a.    received a fixed annual sum of $250,000 for the performance of work, which increased to $300,000 in September 2019;

b.    was paid the fixed annual sum in equal monthly amounts;

c.    performed work exclusively for Whistle Funds;

d.    was under the control and supervision of Mr Silverman in discharging his duties;

e.    was held out to be an emanation of Whistle Funds, including in external fundraising documents.

9.    By reason of the matters pleaded in paragraph 8 above:

a.     the Second Consultancy Agreement was superseded by a contract of employment between Mr Vize and Whistle Funds; and

b.     Mr Vize was an employee of Whistle Funds from 1 July 2017.

(Emphasis added.)

115    Mr Vize next pleads that he was promoted to the position of Managing Director and Chief Executive on 7 April 2021 (the Promotion Date): ASOC at [10]. His pleaded case in this respect is that he continued to be an employee at this time or, alternatively, he became an employee from this point in time. His pleaded case in this respect is as follows:

13.     Between the Promotion Date and the Termination Date, among other matters, Mr Vize:

a.     exclusively performed work for Whistle Funds;

b.     received fixed annual remuneration of $300,000 between April 2021 and September 2023 for the performance of work, and $350,000 between October 2023 until the Termination Date;

c.     was paid the fixed annual remuneration in equal monthly amounts;

d.     received bonuses for the performance of work;

e.     was paid during periods of annual leave and sick leave;

f.     was required to use a Whistle Funds email account;

g.     was provided with tools of trade and/or reimbursed for work-related equipment and expenses by Whistle Funds;

h.     was subject to the control and supervision of Mr Silverman in the discharge of his duties;

i.     was given the authority to supervise and manage staff of Whistle Funds;

j.     was given authority to sign legal documents such as office leases on behalf of Whistle Funds;

k.     was allocated a permanent workstation in Whistle Funds’ offices;

l.     attended Christmas events and social gatherings held by Whistle Funds for its employees; and

m.    was in a senior role and held out to be an emanation of Whistle Funds, including in external fundraising documents.

14.     By reason of the matters pleaded in paragraph 13 above, Mr Vize:

a.     continued to be an employee of Whistle Funds from the Promotion Date to the Termination Date; or in the alternative,

b.     became an employee of Whistle Funds on and from the Promotion Date until the Termination Date.

15.     Mr Vize and Whistle Funds did not enter into a written contract of employment regarding Mr Vize’s position as Managing Director and Chief Executive.

116    It will be apparent from the foregoing pleadings that, whilst they refer to a contract of employment having been entered into in or about July 2017, they do not clearly assert the terms of that contract. Nor does the ASOC articulate the alternative contract of employment that was said to arise from the Promotion Date.

117    What is, however, pleaded is the contract that was said to be applicable as at the Termination Date, as follows (ASOC at [16]-[19]):

16.    As at the Termination Date, the terms of Mr Vize’s employment contract (the Employment Contract) were partly express and partly implied by fact or by law.

17.     It was an express term of the Employment Contract or, alternatively, it was a term implied by fact based on the conduct of the parties, that Mr Vize’s title would be Chief Executive and Managing Director.

Particulars

Correspondence from Mr Silverman to Mr Vize dated 7 April 2021.

Announcement letter from Mr Silverman to Whistle Funds investors dated 1 May 2021.

18.     It was an express term of the Employment Contract or, alternatively, it was a term implied by fact based on the conduct of the parties, that Mr Vize would, between April 2021 and September 2023, receive annual remuneration of $300,000 (excluding superannuation), which then increased to $350,000 (excluding superannuation) in October 2023.

Particulars

Email from Mr Silverman to Mr Vize dated on or around 31 August 2019.

Further particulars to be provided following discovery.

19.     It was an implied term of the Employment Contract that Whistle Funds could only terminate Mr Vize’s employment on providing Mr Vize with reasonable notice (the Reasonable Notice Term).

Particulars

The Reasonable Notice Term was implied by law.

118    In his written outline of opening submissions filed on 25 February 2026 (AOS) (three months before the commencement of the hearing before me), Mr Vize submitted that it was the parties’ objective intention that the Second Consultancy Agreement “ceased governing the relationship” between them on the basis that (AOS at [13]):

(a)    the basis of payment “fundamentally changed” from being contractually entitled to be paid for time worked to be contractually entitled to regular monthly pay and leave;

(b)    Mr Vize’s salary changed; and

(c)    Mr Vize’s contractual duties “fundamentally changed” from “consultancy services” under the Second Consultancy Agreement to “Fund Manager” with recognised duties.

119    Mr Vize contended that from the time of his appointment to the position of Fund Manager, the “terms of the [employment] contract”, which could be inferred or implied, included (AOS at [14]-[15]) that Mr Vize was:

(a)    to perform the duties of Fund Manager;

(b)    to be paid a regular salary;

(c)    required to comply with Whistle Funds’ directions; and

(d)    entitled to be paid annual leave and personal/carer’s leave.

120    Mr Vize further submitted as follows at AOS at [16]:

a.    Mr Vize was operating as part of Whistle Funds’ business, and not operating his own separate business – the role of Fund Manager involved him, inter alia, acting “as the first point of contact between Whistle Funds and its clients … accountants, bankers, valuers, lawyers, real estate agents, tenants and insurers”, and “representing Whistle Funds externally and internally in all of its dealings”;

b.    Mr Vize was required to follow directions as to when, where and how he worked. This is evidenced by Mr Silverman’s conduct in issuing directions, including requiring Mr Vize to attend the office and giving strict direction as to the manner in which he performed his work.

c.    Mr Vize’s regular monthly pay, and leave entitlements, were also matters that strongly supported the view that he was an employee.

(Original emphasis retained.)

121    In relation to his subsequent appointment to Managing Director, Mr Vize submitted that this was such a fundamental change to his role and salary that there was “a new or at least an amended employment agreement”: ASOC at [19]. Mr Vize accepted that there was no written employment contract but contended that the terms of his employment contract were partly express and partly implied by fact or by law, and that those terms as a whole manifestly indicated that he was a part of Whistle Funds’ business, and subject to the control by Mr Silverman as to when, where and how he worked, such that he was an employee: ASOC at [19].

122    The respondents complained that Mr Vize’s pleaded case was deficient and did not disclose the key integers upon which his claim depended. Specifically, the respondents submitted at [7] of their Closing Submissions (RCS) that the ASOC did not disclose:

(a)    how it is alleged that the Second Consultancy Agreement was “superseded” in the contractual sense;

(b)    the existence of a contract as at 1 July 2017, the terms of such a contract, or how it is that they are to be discerned;

(c)    if the parties did not enter into the new employment contract as at 1 July 2017, how it is alleged that the Second Consultancy Agreement was varied and/or rescinded as at 7 April 2021;

(d)    the existence of a contract as at 7 April 2021, the terms of such a contract, or how it is that they are to be discerned; and/or

(e)    how it was that the contract, said to be in place as at 5 March 2025, came into existence.

123    The respondents submitted that these deficiencies fundamentally compromised the entirety of Mr Vize’s case and disentitled Mr Vize to the entirety of the relief sought: RCS at [8].

124    The respondents’ complaints have some force. In light of the decisions in Personnel Contracting, Jamsek and EFEX Group, it is incumbent on a person asserting that he or she is an employee to identify the relevant contract and, more importantly, the terms of the contract by reference to which it is claimed that the person is an employee. Mr Vize did not attend to this with precision in the ASOC. However, I do not consider that this is fatal in the way that the respondents contended. Mr Vize’s made his case clear in the AOS, which, as I have already noted, was filed well in advance of the hearing. Moreover, in the ROS, the respondents did not take any issue with the way Mr Vize had advanced his case in the AOS. This is also reflected in the issues that the parties agreed were in dispute between them in the SAFI which I have set out above. As there recorded, the parties agreed that Mr Vize contended that a new employment contract had been entered into from 1 July 2017 or 7 April 2021.

125    In Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15, the Full Court (Greenwood, McKerracher and Reeves JJ) stated at [13];

It is well-established that the main purposes of pleadings are to give notice to the other party of the case it has to meet, to avoid surprise to that party, to define the issues at trial, to thereby allow only relevant evidence to be admitted at trial and for the trial to be conducted efficiently within permissible bounds: see, eg Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 (at 664–665). However, it is also well-established that pleadings are not an end in themselves, instead they are a means to the ultimate attainment of justice between the parties to litigation: see Banque Commerciale S.A. (in liq) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (at 293) per Dawson J who cites Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 (at 517). For these reasons, the courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach: see the observations of Martin CJ in Barclay Mowlem Construction Limited v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 (at [4]–[8]). Even before the widespread use of case management, the High Court reflected this approach in decisions such as Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 (at 668–669) per Stephen, Mason and Jacobs JJ and Water Board v Maustakas [1988] HCA 12; (1988) 180 CLR 491 (at 497) per Mason CJ and Wilson, Brennan and Dawson JJ.

(Emphasis added.)

126    In light of these statements of principle and the matters to which I have referred above, I am satisfied that the respondents well knew the case they had to meet at trial. I reject the respondents’ pleading point.

3.4    The identification of the applicable contract(s)

127    The parties were in dispute as to the relevant contract under which Mr Vize was engaged from in or about mid-2017 to the Termination Date. Mr Vize’s case is that the Second Consultancy Agreement was “superseded” on 1 July 2017 and thereafter he became an employee or, alternatively, this occurred upon his appointment to the position of Managing Director.

128    Mr Vize submitted that, whilst changes to the terms of a contract will always result in a new contract, whether there was a discharge of the old contract or variation is a matter of intention: citing Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 at [19] (Gleeson CJ, Gaudron and Gummow JJ); Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10; 98 CLR 93 at 143‑144 (Taylor J). Mr Vize submitted that the Second Consultancy Agreement was “superseded” as at 1 July 2017 because his appointment to the position of Fund Manager was a material departure from what was contemplated under the Second Consultancy Agreement. This was said to be the case because of the material alterations to the work he was to perform from 1 July 2017, the fact that he was to work permanently, his entitlement to a fixed annual fee and his entitlement to be paid for sick and annual leave: Applicant’s Closing Submissions dated 29 May 2026 (ACS) at [7]. Mr Vize submitted that it could be readily inferred in these circumstances that the parties no longer intended to be bound by the Second Consultancy Agreement and that they had entered into a new agreement from that time onwards: ACS at [9].

129    Further, Mr Vize contended that even if the Second Consultancy Agreement had not been discharged upon his appointment to the position of Fund Manager, this occurred when he was appointed to the position of Managing Director and CEO as this was a radical departure from the terms of Second Consultancy Agreement: ACS at [1(c)].

130    Whistle Funds maintained that the Second Consultancy Agreement continued to apply through to the Termination Date: RCS at [9]. Relying upon the statements made by French J (as his Honour then was) in Martech International Pty Ltd v Energy World Corporation Ltd [2006] FCA 1004; 234 ALR 265 at [161]-[162], Whistle Funds submitted that to establish that the Second Consultancy Agreement had been “discharged” or “superseded”, Mr Vize had to establish that: (a) there had been a “significant change” (or a “profound” one) to the nature of the services to be provided, (b) the changes “were not able to be accommodated by the terms of the original contract”, and (c) the changes were not contemplated by the parties when the original contract was made. Whistle Funds submitted (see RCS at [13], [20]-[22]) that as at 1 July 2017 and/or 7 April 2021:

(a)    there was no significant or profound change to the nature of the services provided by Mr Vize to it;

(b)    the services provided by Mr Vize were capable of being accommodated by the terms of the Second Consultancy Agreement as provided for in Schedule 2 and, as a result, such changes were contemplated by the parties under the terms of that Agreement;

(c)    the parties continued to operate consistently with the terms of the Second Consultancy Agreement in that Mr Vize continued to provide the services described in Schedule 2, continued to receive a fee and provided invoices when requested to do so, continued to collect and remit GST to the ATO and continued to be responsible for his own taxation liabilities without Whistle Funds deducting amounts for taxation on a PAYG basis; and

(d)    the Second Consultancy Agreement was not varied or terminated in accordance with its terms.

131    Whistle Funds accepted that the fees payable to Mr Vize had changed over time including in or about mid-2017. It further accepted that these changes were not documented in writing as variations to the Second Consultancy Agreement in accordance with cl 11.4. Whistle Fund’s primary contention was that such changes were non-contractual such that they did not alter the parties’ rights and obligations as they were not documented variations made in accordance with cl 11.4 of the Second Consultancy Agreement. Alternatively, Whistle Funds maintained that even if these changes amounted to variations of the Second Consultancy Agreement, the parties did not intend to discharge that Agreement and that the terms of that Agreement (other than as varied in relation to the fee payable to Mr Vize) continued to apply: RCS at [25]-[26]. The respondents also emphasised that neither party had sought to terminate the Second Consultancy Agreement pursuant to cl 8.

132    In considering the parties’ respective submissions, it is necessary to address basal contractual principles.

133    Whilst changes to the terms of a contract will always result in a new contract, whether there is a discharge of the old contract is a matter of intention: Concut at [19]; Tallerman at 143‑144. Whether such changes are sufficient to indicate a discharge of the old contract is a “matter of degree”: Tallerman at 113. In Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; 201 CLR 520 at [22] (extracted in Concut at [19]), Gleeson CJ, Gaudron, McHugh and Hayne JJ said:

When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.

134    In Martech International at [154]-[162], French J considered the applicable authorities, including their application to contracts of employment where the parties have agreed to vary the role or position occupied by the relevant employee. His Honour reasoned as follows at [160]-[163]:

… In Chitty on Contracts (Vol 2, Sweet & Maxwell, 28th ed, 1999) 39-152, it is said:

‘A termination of a contract of employment by agreement occurs also where there is an agreed change in the terms and conditions of employment, for instance by way of promotion, which is sufficiently fundamental to constitute the rescission of the original contract and its replacement by a new contract in differing terms.’

In Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567, Ashley J reviewed a number of authorities relating to changes to the terms of employment and when such changes would amount to discharge of a subsisting employment agreement. He accepted, at 576, the proposition in Federated Mutual Insurance Co of Australia Ltd v Sabine [1920] SALR 284 that:

‘…where employer and employee agree to an alteration in the employee’s duties and responsibilities which is profound, a court should be more ready to hold (unless the original contract of employment provided for the contingency) that a new contract has replaced the old; or at least that the old contract as varied, contained terms objectively appropriate to the new relationship created.’

A contract under which a person is employed, whether directly or through a corporate entity controlled by that person, may be discharged by sufficiently significant changes to the duties and/or the remuneration of the person so employed. A discharge will occur when the changes are significant, not able to be accommodated by the terms of the original contract and not contemplated by the parties when the original contract was made. Whether there has been a discharge or a variation of the original agreement depends upon the intention of the parties discerned by reference to the terms of their second agreement. It is, as Dixon CJ and Fullagar J said in Tallerman, ‘a matter of degree’.

In my opinion, Mr Elliott’s appointment as managing director and chief executive officer of Energy on 29 September 2000 and Mr Brand’s relinquishment of that office was of itself sufficient to constitute a discharge of the agreement of May 1999. There was a very substantial difference between the office of managing director and executive director, which supports the contention that objectively judged it was the intention of both parties to discharge the Agreement. The complete terms upon which Mr Brand provided his services as an executive director thereafter were never expressly agreed between Martech and Energy. Those terms and conditions would have to be considered in the context of the evolving commercial relationship between Mr Brand and Energy and their respective conduct. Mr Brand played a significant part in defining them himself, not least by unilaterally varying downwards his annual fee.

135    The last proposition stated by French J at [163] as to the evolving commercial relationship between the parties accords with what was said by McHugh JA (with Hope and Mahoney JJA concurring) in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117–11,118:

It is often difficult to fit a commercial arrangement into the common lawyers’ analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of “offer”, “acceptance”, “consideration” and “intention to create a legal relationship” which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship …

Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties’ subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.

(Emphasis added.)

136    See also Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 at [74]ff (Heydon JA).

137    Where the question is one as to the formation of a contract and its variation (as opposed to the interpretation of the relevant contract) and the parties have not documented their bargain in written terms, reliance may be placed on the conduct of the parties, including their subsequent conduct, to infer whether a binding agreement has been reached, its subject matter and the identification of the terms of that agreement: see Fazio v Fazio [2012] WASCA 72 at [193] (Murphy JA, Pullin and Newnes JJA agreeing); The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239; 39 WAR 1; The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 10) [2009] WASC 107; 39 WAR 1 at [2665]–[2672] (Owen J); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7]–[27], [45] (Spigelman CJ).

138    In the present case, it is first necessary to consider the contractual position in relation to the events that occurred in the lead up to July 2017 and then the events of April 2021. In doing so, it is necessary to: (a) identify the relevant contract(s) that governed the parties’ relationship; (b) identify the terms of those contracts; and (c) assess the central question by reference to the rights and obligations of the parties as contained in those terms.

3.5    Appointment to the Fund Manager Position – Determination of the central question by reference to the contractual terms

139    The first issue that requires determination is the identification of the relevant contract that governed the parties’ relationship from on or about 1 July 2017 and the terms of that contract. These questions need to be determined before examining the relevant terms to address the central question as to whether Mr Vize was an independent contractor or employee in the period following July 2017.

3.5.1    Identification of the applicable contract and its terms and whether the Second Consultancy Agreement was superseded

140    Mr Vize claims that prior to 1 July 2017, there were three substantial and material changes to the terms of his engagement such that the Second Consultancy Agreement was superseded and replaced by an employment contract. First, he says he was appointed to the position of Fund Manager which was a fundamental and profound change to the duties he had been performing up to that point in time such that these changes were not contemplated by the Second Consultancy Agreement and that this Agreement ceased to apply to him. Second, he claims that his fees were altered so that he was, from that time onwards, paid a fixed annual amount in 12 equal monthly instalments irrespective of the work performed and no longer required to provide invoices as a condition of payment other than when requested to do so. Third, he claims he was thereafter entitled to be paid for annual leave and personal/carer’s leave.

141    In respect of these three matters, there was no substantial challenge to Mr Vize’s evidence, though Whistle Funds denied the characterisation of the events in question. In relation to each of the three matters claimed by Mr Vize, for the reasons set out at 3.1.3 above, I am satisfied that in or about July 2017, the parties agreed that:

(a)    Mr Vize would perform the duties of the role of Fund Manager and that it involved the duties set out by Mr Vize (which were not the subject of any challenge), including in his email of 8 November 2017;

(b)    Mr Vize would be paid a fixed annual fee, which would be payable in equal monthly instalments;

(c)    Mr Vize was not required to submit invoices as a condition of receiving payment of his fees;

(d)    Mr Vize would need to provide invoices to Whistle Funds when requested to do so; and

(e)    Mr Vize would be entitled to be paid for sick leave and annual leave.

142    There is a preliminary question of fact as to whether Mr Vize was, in fact, “appointed” to the position of Fund Manager on or about 1 July 2017. Mr Vize claims that he was so appointed, whereas Mr Silverman says there was no formal appointment to such a position but in effect that the services being provided by Mr Vize evolved over time towards funds management services as Whistle Funds’ business grew. It is correct that there is no single document in evidence that confirms that Mr Vize was formally appointed to the position of Fund Manager. However, it is clear on the evidence before me (which I have accepted) that in the lead up to 1 July 2017, there were discussions between the parties about Mr Vize’s contractual arrangements, especially as to his remuneration, his entitlements to sick and annual leave, and the processes for invoicing and payment. It is also clear that at or by this time, Mr Vize was performing services which were broader than that which he previously provided and that he was by then performing the services of a Fund Manager. This is corroborated by Mr Vize’s evidence as to the duties he was performing at the time, and the email dated 8 November 2017. I am satisfied that by 1 July 2017, Mr Vize was in fact performing the services of a Fund Manager, though there was no documented or formal appointment to that position.

143    My conclusions above are not gainsaid by the parties’ agreement, as recorded in the SAFI, that throughout the entirety of his engagement, the services provided by Mr Vize included (but were not limited to) financial modelling, cash flow management and preparation of investor reports. As addressed above, I am satisfied that the additional services that Mr Vize was performing by at least 1 July 2017 were broader than those services. The real question that arises is whether these additional services which Whistle Funds required of Mr Vize, and to which he agreed, were ones which were accommodated by Schedule 2 of the Second Consultancy Agreement. Whether such services were contemplated by the Second Consultancy Agreement or amounted to a variation of that Agreement requires an assessment of the text of Schedule 2. It will be recalled that Schedule 2 provides as follows:

SCHEDULE 2 – SERVICES

Consultant’s Services:

The Consultant shall provide the Key Person to perform the role of Consultant.

The Key Person will:

During this Agreement the Consultant will provide consultancy services as required by Whistle Funds Management and agreed between the parties from time to time (the "Services") to include but not limited to financial modelling, cash flow management, and preparation of investor reports. [the Second Paragraph of Schedule 2]

At all times the Consultant will only receive payment after the services have been provided. In addition to this the Consultant is responsible for providing the necessary skills, equipment or tools to carry out the services. If there are any variations to the work they are to be carried out at the expense of the consultant. [the Third Paragraph of Schedule 2]

144    Mr Vize submitted that his performance of services as Fund Manager did not fall within the scope of this clause. It was submitted that the words “consultancy services” were to be read in the context of Schedule 2 as being those relating to “financial modelling, cash flow management, and preparation of investor reports” or services of that type: see T16.30ff. It was submitted that the role of Fund Manager extended well beyond these activities, as contemplated by Schedule 2.

145    I do not accept Mr Vize’s construction of the Second Paragraph of Schedule 2. The words “consultancy services” are not defined, but I do not consider them to be limited by the words “financial modelling, cash flow management, and preparation of investor reports” or services of that type. That would be inconsistent with the text of the clause which expressly states that these types of services (or duties) do not limit the types of services that Mr Vize could be required to perform if he agreed to them.

146    In my view, on its proper interpretation, the Second Paragraph of Schedule 2 has three components. The first is that Whistle Funds may require Mr Vize to perform consultancy services, the second is that Mr Vize may agree to perform those services, and the third is that those services may include but are not limited to financial modelling, cash flow management and preparation of investor reports. It is plain that, whilst Whistle Funds may request Mr Vize to perform different types of consultancy services, Mr Vize was not obliged to accede to such a request. It was up to him whether he agreed to do so or not.

147    I accept the respondents’ contentions that the words “include but not limited to” are words of inclusion and of substantially wide import, and they do not operate in a way so as to restrict the scope of the services that may be requested by Whistle Funds and thereafter agreed to by Mr Vize: RCS at [15]. In my view, cl 3 provides context to the scope of the services that Mr Vize could be requested to and agree to perform, being that they are services that are capable of permitting Mr Vize to conform to the warranty he had given in that clause that he had the knowledge, skills, experience, expertise, resources and capacity to perform his obligations under the Second Consultancy Agreement.

148    It was not suggested that the services that Mr Vize was requested to and agreed to perform as Fund Manager fell outside of his knowledge, skills, experience, expertise and capacity.

149    Accordingly, I do not consider that Mr Vize’s appointment to the role of Fund Manager itself gave rise to any variation to the Second Consultancy Agreement. In my view, the relevant change to Mr Vize’s position at this point led to the provision of services that were supported and contemplated by the Second Consultancy Agreement.

150    However, it would be incorrect to view the changes that occurred by 1 July 2017 to Mr Vize’s position or duties in isolation to the other matters that the parties agreed upon by that time, as set out at [141] above. As there noted, I am satisfied that there were also changes made to the fees payable to Mr Vize, the requirement to issue invoices as a condition of the payment of such fees, and his entitlement to annual leave and sick leave.

151    I do not accept the respondent’s primary contention that the changes to Mr Vize’s fees at that time had no contractual effect. The essence of this contention (as advanced by Senior Counsel for Whistle Funds) was that the changes to the fees payable to Mr Vize were non-contractual, reflected an exercise of discretion on the part of Whistle Funds to pay Mr Vize a fee that was higher than his contractual entitlement, and that such an exercise in discretion had no contractual effect: see eg T314.11ff. I reject that submission. I also reject Whistle Funds’ alternative submission that, to the extent that there was a variation of the terms of the Second Consultancy Agreement, it was limited to Schedule 3 of that Agreement (as reflected in the SAFI at paragraph 3(d)).

152    Schedule 3 of the Second Consultancy Agreement states that Mr Vize will be paid “the Service Fee of $20,000 per calendar month exclusive of GST”. Of itself, Schedule 3 is not illuminating as to the bargain between the parties. The essence of that bargain is found in cl 2 of the Second Consultancy Agreement and in the Third Paragraph of Schedule 2. Clause 2.1 of the Second Consultancy Agreement provides that Whistle Funds is to pay the “Service Fee” as a “fee for work performed”. This clause makes it plain that the fee is only payable for work performed by Mr Vize. That is also reinforced by the Third Paragraph of Schedule 2 which provides that the “Consultant will only receive payment after the services have been provided”.

153    Further, cl 2.2 clearly stipulates that the payment of the “Service Fee” is “subject to…receipt by the Company of a valid tax invoice” and Mr Vize “providing [Whistle Funds] with evidence of the times at which the Services were performed, where reasonably requested by the Company”. There are two separate obligations contained in cl 2.2. The first being that payment of the Service Fee is conditional upon a valid tax invoice being received by Whistle Funds. The second being that Whistle Funds may request Mr Vize to provide it with evidence of the work that Mr Vize had performed.

154    In my view, each of cll 2.1 and 2.2, the Third Paragraph of Schedule 2 and Schedule 3 are inconsistent with what was agreed between the parties by on or about 1 July 2017 such that it cannot be said that they continued with contractual force after this time. The inconsistency arises in three ways.

155    First, Mr Vize was to be paid a fixed annual fee in equal monthly instalments which was not conditional upon work being performed by Mr Vize. That is so because the annual fee was to be paid in equal monthly instalments irrespective of whether Mr Vize performed work or conditional upon that work being performed or after the relevant services had been performed, the level of work he performed or the quality of that work. The fact that the payment was not conditional on work being performed is inconsistent with cl 2.1 of the Second Consultancy Agreement. It is also inconsistent with the Third Paragraph of Schedule 2, which relevantly provides that Mr Vize “will only receive payment after the services have been provided” and that if any variations to Mr Vize’s work are required, they are to be carried out at his expense.

156    Second, Mr Vize was not required to submit a valid tax invoice as a condition of payment of the fee that was agreed. This agreement cannot be reconciled with cl 2.2(a) which provides that the payment of the Service Fee is subject to receipt by Whistle Funds of a valid tax invoice. Whilst I accept that the parties agreed that Mr Vize was required to provide tax invoices when requested to do so by Whistle Funds, such an obligation was not agreed to be a condition precedent to the payment of the fee that the parties agreed by on or about 1 July 2017.

157    Third, Mr Vize was not required to provide evidence of the times at which he had performed the Services. The parties only agreed that that he was to provide tax invoices when requested to do so, without specifying any obligation on the part of Mr Vize to provide evidence of the work he performed. This agreement between the parties is inconsistent with cl 2.2(b) of the Second Consultancy Agreement.

158    Each of these matters accords with the parties’ conduct after July 2017. Mr Vize did not submit invoices as a condition of payment other than when he was asked to supply them for particular purposes, such as an audit, and in that eventuality, he was only required to provide a sample which were post-dated. Further, Mr Vize was not required to provide evidence as to the work he had performed and Mr Vize was paid a fixed fee in equal monthly instalments irrespective of whether he performed work. This post-contractual conduct on the part of the parties may be relied upon to infer that the parties had in fact agreed to the terms that I have set out above: see eg EFEX Group at [56]-[59] and Personnel Contracting at [183].

159    There is another aspect of the Third Paragraph of Schedule 2 that I consider was no longer operative between the parties and the parties did not intend to continue to operate. The Third Paragraph of Schedule 2 contained the sentence, “[i]n addition to this the Consultant is responsible for providing the necessary skills, equipment or tools to carry out the services.” However, by on or about 1 July 2017, the uncontested position was that Mr Vize had not been providing his own equipment or tools to carry out the services, though of course he was applying his necessary skills. On the unchallenged evidence, Mr Vize was provided with a computer and other facilities. Mr Vize’s further evidence was that in the role of Fund Manager, he worked in the Whistle Funds office every working day (see Vize 1 at [40]), although Mr Silverman gave evidence that he did not require this (see Silverman 1 at [66]). What is relevant is that Mr Vize was not providing any of his own tools or resources, and Whistle Funds was not requiring that of him.

160    A further material change that occurred in or about July 2017 was that Mr Vize became entitled to be paid for sick leave and annual leave. Neither of these entitlements were provided for in the Second Consultancy Agreement. This too is a material inconsistency with the terms of the Second Consultancy Agreement.

161    There are other contextual facts that had occurred by on or about 1 July 2017 that are relevant. As noted above, I am satisfied that by this time, Mr Vize was being required to perform and was performing the duties of Fund Manager, and these duties were much broader than the services of financial modelling, cash flow management and preparation of investor reports. He was also performing such work in and from Whistle Funds’ offices, using its resources and not supplying any of his own resources. Whatever may have been in contemplation as to the services that Mr Vize was to perform at the commencement of the engagement in 2012 or upon entry in the Second Consultancy Agreement, the fact is that by 1 July 2017, Mr Vize was in substance engaged in full-time work for Whistle Funds. This is corroborated and reinforced by the fact that at that time, the parties agreed that Mr Vize would be paid an annual fee in 12 equal monthly instalments which was not made conditional upon whether he performed work or not. By this time, Mr Vize was not performing work for any other organisation and, in fact, he had only performed limited work for third parties and had not done so since March 2016: T55.18-.30. It may be that Mr Silverman was not aware of these matters. Nevertheless, I am satisfied that by in or about 1 July 2017, Mr Vize was performing and was to perform full-time work for Whistle Funds.

162    Whilst Mr Vize’s performance of the duties of Fund Manager was consistent with and accommodated by the Second Paragraph of Schedule 2 of the Second Consultancy Agreement, the other terms which I have addressed were not consistent with or accommodated by the terms of the Second Consultancy Agreement.

163    I reject Whistle Funds’ primary contention that the changes to Mr Vize’s fees and the provision of invoices, and his entitlement to sick and annual leave, did not amount to variations to that Agreement because the parties had not complied with the requirements of cl 11.4. It is correct that the parties had not complied with cl 11.4 to give effect to these changes (and no party suggested otherwise). However, I am satisfied that the parties’ objective intention was to not comply with cl 11.4. To conclude otherwise would be inconsistent with the parties agreeing to variations that were objectively intended to be binding between them. This can readily be inferred from the subject matter of the changes, which related to Mr Vize’s entitlement to payment and leave entitlements, terms which go to the core of the agreement between the parties. It would be a surprising conclusion that the parties intended to vary the amounts payable to Mr Vize but did not intend for them to have any legal effect. The submission advanced by Senior Counsel for the respondents was faintly put and I reject it. It does not accord with what is to be inferred about the objective intentions of commercially minded people in the position of the parties.

164    I also reject the respondents’ position that the parties did not intend the changes in Mr Vize’s leave entitlements to have any legal effect. Those changes were closely tied to the increase in the fees payable to Mr Vize. That is so because Mr Vize was entitled to payment of those fees without any deduction for absences on account of illness or annual leave.

165    Looking objectively at the facts and circumstances that occurred on or by mid-2017, I am satisfied that the parties intended to vary their contractual arrangements at least in the respects which I have addressed above. Consistently with Sara Lee at [22] and Concut at [19], I am satisfied that the parties had entered into a further contract by agreeing to these variations by in or about 1 July 2017. For the reasons stated above, I am satisfied that those variations were inconsistent with the terms of the Second Consultancy Agreement that I have specified above.

166    As posed in Sara Lee at [22], the question that then arises is whether the intention of the parties was to thereby rescind the Second Consultancy Agreement or whether they intended that it would continue in operation other than as varied. The answer to that question turns upon what the parties intended and what can be inferred from the objective facts as to what they intended.

167    Other than in the respects that I have identified above, on the evidence before me, the parties did not discuss any other changes to their contractual arrangements. For example, there was no discussion as to whether Mr Vize would continue to collect and remit GST, whether Whistle Funds would make deductions for PAYG obligations and whether, more generally, Mr Vize would continue to be responsible for compliance with applicable tax laws and obligations. The fact is that Mr Vize continued to provide services under the banner of Advize, he continued to collect and remit GST to the ATO, Whistle Funds did not make any deductions for income tax on a PAYG basis, and Mr Vize continued to remain responsible for attending to compliance with his tax obligations, including in relation to the remittance of GST and the payment of income taxation. Those objective facts strongly indicate that the parties did not intend to vary these parts of their contractual arrangement, which tends against the contention advanced by Mr Vize that the Second Consultancy Agreement was rescinded at this time.

168    I do not discern any intention on the part of the parties that, other than in the respects where they agreed to specific changes in their contractual arrangements, they wished to alter any other terms of the bargain that they had entered into, as reflected in the Second Consultancy Agreement. When pressed during opening submissions, Counsel for Mr Vize submitted that cll 1.1, 1.4, 1.5, 1.6, 2, 3, 6, 8 and 9 of the Second Consultancy Agreement did not “survive” the variations made in July 2017, but accepted that cl 1.3 survived (but Mr Vize was now in a full-time role), that cll 4 and 5 survived, and that cl 10 arguably survived. During closing submissions, Counsel for Mr Vize submitted that cll 1.2, 1.3, 1.6, 2 and part of Schedule 2 did not survive. In the ACS at [15], it was submitted on Mr Vize’s behalf that cll 1.1, 1.2, 1.3 and 2 of the Second Consultancy Agreement did not continue to apply, but that cl 1.7 continued to apply. Subsequently, in supplementary written submissions, it was submitted on Mr Vize’s behalf that his primary position was that the Second Consultancy Agreement was rescinded in its “entirety” and to the extent that any of its terms continued to apply, they could only do so if the Court “implied” those terms into the new contract that applied between the parties as and from July 2017: relying upon Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 at [84] (Edelman and Steward JJ) as to the distinction between the implication of terms and the application of inferential reasoning as a method by which to identify the existence of express and implied terms.

169    I do not accept the entirety of Mr Vize’s contentions. The question before the Court is whether the parties intended to rescind the Second Consultancy Agreement in its entirety or whether the parties intended that it would continue to apply other than as varied. The latter conclusion does not involve the implication of terms, it involves a process of inferential reasoning to divine the parties’ intentions which would result in some of the express terms of the Second Consultancy Agreement continuing to have operation such that the parties did not intend to rescind that Agreement in its entirety. As Dixon CJ and Fullagar J stated in Tallerman, these are questions of fact and degree.

170    In the present case, the parties did not discuss any matters or engage in other conduct that would indicate that, other than what they were agreeing to change, they intended to change any other aspect of their contractual arrangement.

171    Although it appeared to be Mr Vize’s case that the parties intended that cl 1.1 (dealing with Mr Vize’s appointment as a consultant), cl 1.2 (dealing with the provision of services by the Key Person), cl 1.4 (dealing with Mr Vize being engaged as an independent contractor) and cl 1.6 (dealing with Mr Vize’s right to provide services to third parties) would no longer have any operation, the parties do not appear to have discussed these matters at all. There was no discussion as to whether Mr Vize was at liberty to secure another person (ie another Key Person) to perform the services of a Fund Manager, whether he was at liberty to perform services for third parties or whether there would be any other change to the essential structure of the contractual relationship as to the taxation arrangements between the parties.

172    I accept (as addressed above) that the nature of the duties of Fund Manager (as set out above at [75]-[76]) were such that they required a full-time commitment from Mr Vize to the work he was to perform for Whistle Funds. From that fact, it may be inferred that these duties were of a type that could not be performed by another person as a replacement Key Person for Mr Vize. That inference might be more readily drawn given that the duties included preparation of feasibility models, investor reports, liaisons with lawyers and lenders, and generally managing the investments in the relevant funds. However, each of these matters is to be assessed against the fact that the parties did not seek to alter the basis upon which Mr Vize was to be engaged using his business name of Advize and being responsible for the payment of relevant taxes and the remittance of GST to the ATO. Accordingly, I am not prepared to infer that the parties intended that the terms of the Second Consultancy Agreement would cease to bind them, other than in the respects in which they had reached a specific agreement as set out above.

173    In light of the above, I am satisfied that by on or about 1 July 2017, the parties varied the Second Consultancy Agreement and in doing so, they entered into a new contract that had the effect of new terms coming into place in relation to fees, invoicing and leave entitlements, but that the parties did not intend to rescind the Second Consultancy Agreement in its entirety. For the reasons stated above, I am satisfied that the parties did not intend cll 2.1 and 2.2, the Third Paragraph of Schedule 2 and Schedule 3 to continue to apply as these clauses were inconsistent with what was agreed between the parties in or about July 2017. However, other than in these respects, I am satisfied the parties intended the other express terms of the Second Consultancy Agreement to continue to apply as between them.

3.5.2    Addressing the central question by reference to the terms of the parties’ contractual arrangements

174    Based on the foregoing, it is next necessary to examine the totality of the terms agreed between the parties, including the rights and obligations arising from them, in order to address the central question as to whether Mr Vize was an employee or independent contractor. Some of the terms agreed between the parties point in the direction of Mr Vize being an independent contractor, others are neutral and the balance indicate that Mr Vize was engaged as an employee. I now turn to address these terms in that order.

175    In so far as there were terms agreed between the parties that point in the direction of Mr Vize being an independent contractor, the ones which in my view are critical are the following:

(a)    Mr Vize was to continue to be engaged by Whistle Funds as a consultant (cll 1.1 and 1.4 of the Second Consultancy Agreement);

(b)    the point in (a) is reinforced by the fact that Mr Vize continued to be responsible for collecting and remitting GST to the ATO (cll 6.3 and 10 of the Second Consultancy Agreement);

(c)    the point in (a) is further reinforced by the fact that Mr Vize agreed to indemnify Whistle Funds in respect of his obligations under the Second Consultancy Agreement, including in relation to matters of taxation (cll 6.2 and 6.3 of the Second Consultancy Agreement); and

(d)    the point in (a) is also reinforced by the fact that Mr Vize continued to be responsible for effecting and maintaining relevant insurances (cll 6.5 and 6.6 of the Second Consultancy Agreement).

176    For the reasons stated in Personnel Contracting at [63]-[64], [66], [79] and [184], and contrary to the submission made by Senior Counsel for Whistle Funds, I give little weight to the label given by the parties to their relationship as one of a consultancy and that Mr Vize was engaged as an independent contractor: cf cll 1.1 and 1.4 of the Second Consultancy Agreement.

177    The most persuasive factors weighing in favour of characterising the relationship between the parties as that of principal and independent contractor are those in relation to what the parties had agreed between them as to taxation. Mr Vize was to be engaged, and continued to be engaged after July 2017, on the basis that he was responsible for the collection and remittance of GST, that he was responsible for payment of other taxation (including income tax), and, subject to what I say below, that Whistle Funds was not deducting any amounts on account of PAYG obligations. These facts tend to indicate that Mr Vize was conducting his own business of sorts, with responsibility for complying with tax obligations and with the opportunity to take advantage of whatever taxation or associated benefits that flowed to him by reason of that arrangement. It is also to be accepted that Mr Vize thereby made representations to the ATO as to his status as an operator of a business.

178    In Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46; 249 IR 440 at [70], Jessup J (with whom Allsop CJ and White J agreed) observed:

…in contemporary Australia, it is impossible to ignore, and difficult to deprecate, the taxation implications of the mode of operation which parties to a relationship have voluntarily adopted. In the past, the deduction of what are now called PAYG instalments was always treated, uncontroversially, as indicative of an intention that the relationship in question was one of employment. To any suggestion that the absence of such instalments tended to point to the relationship being one of principal and independent contractor, it was often rejoined that such an argument was circular, in the sense that a consequence of the relationship being one of employment was, under legislation, that such instalments had to be deducted. In contemporary times, however, there are legislative markers on both sides, as it were. It is no longer just the absence of PAYG deductions that may make it more difficult to characterise the relationship as one of employment, it is the presence of GST collections by the putative contractor, and his or her compliance with the regulatory requirements which apply to the provision of services by persons who are not employees, that point quite strongly against the relationship being characterised in this way…

(Original emphasis.)

179    In some cases that have been decided in the past, it has been reasoned that the taxation arrangements agreed between the parties are of little weight because they merely reflect the contractual structure that the parties have elected to adopt and their characterisation of the relationship as one between principal and independent contractor: see eg ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; 209 FCR 146 at [37] (Buchanan J with whom Lander and Robertson JJ agreed). However, the position in those cases is to be contrasted with those where one party (the independent contractor) has specifically sought out that arrangement from the outset and benefitted from it. That was the point made by Katzmann and Bromwich JJ in EFEX Group at [45]-[47]:

Finally, perhaps the most important source of error concerned the remuneration and taxation arrangements. Under the prior multifactorial analysis this often assumed little weight, or its significance was diminished when balanced against other considerations of a less inherently contractual nature, especially if only implemented as an afterthought to reduce tax rather than a reflection on the contractual relationship. Here, the reasoning in Tattsbet Ltd v Morrow at [70] is more to the point than the reasoning in Ace Insurance Ltd v Trifunovski at [37]. That is because, in the present case, the taxation arrangements were a consequence of the terms of the contract from the outset. They formed part of the earliest pre-contractual discussions. They went directly to contract formation, and can properly be seen to be a design feature of that contract as a core term or condition, albeit not reduced to writing. They were not just manifestations of opinion, nor set up later for incidental financial advantage, such as by some kind of artificial or at least questionable income splitting. At the very outset, before Mr Bennett commenced work for EFEX, he set up a trust for the very purpose of the impending commencement of work under the contract with EFEX, so that payment could be made in that way for the services he performed.

The inescapable conclusion is that Mr Bennett held the fruits of the contract with EFEX in his capacity as trustee of the Bennett Enterprises Trust, benefited from the tax arrangements attendant on that fact, and this was known and agreed to by EFEX. Indeed, the contract was offered on that express basis. Mr Bennett used the trust structure to hold income from EFEX, pay his business costs and take advantage of certain tax benefits in ways broadly analogous to the use of partnerships by independent contractors in Jamsek, where they were held to indicate that the impugned workers were conducting their own business: see Jamsek at [63].

Mr Bennett’s submission that regard to the trust structure and tax arrangements must follow characterisation of the relationship is misplaced in a context where these were foundational terms of the contract. For the reasons already discussed, the establishment of the trust was not just an expression of the parties’ opinion about Mr Bennett’s relationship with EFEX. It was not really an opinion at all. It was a manifestation of the very nature of the contract that was agreed upon and entered into. The post-contractual conduct of issuing invoices in the name of the trust, of receiving payment into the trust bank account, and of paying expenses out of that bank account was conduct that was consistent with the nature of the contract itself as one of principal and independent contractor.

(Emphasis added.)

180    The taxation arrangements agreed between the parties in the present case were a feature from the outset of their contractual dealings. As noted above, I am satisfied that they were brought about because Mr Vize wanted to be engaged as an independent contractor and wished to have the flexibility associated with such an arrangement. This is reflected in the terms of the First Consultancy Agreement. It is further reflected by cll 6 and 10 of the Second Consultancy Agreement. Clause 6 expressly provided that Mr Vize was responsible and liable for paying all applicable taxes and other levies, including, without limitation, income tax, pay-roll tax and workers’ compensation, and was also required to maintain applicable insurance policies. These are factors that point firmly in the direction of an independent contract relationship.

181    Despite the force of the above, there is need to take pause and closely consider the text of cll 6 and 10 of the Second Consultancy Agreement as to the rights and obligations between the parties. Although cl 6.3 imposed the obligation on Mr Vize to be responsible and liable for all applicable taxes and other levies, including any income tax, pay-roll tax and workers’ compensation, it bears recalling that cl 6.4 provides as follows:

6.4    If the Company is required by law to deduct or withhold any Tax from any amount payable by the Company:

(a)     such Tax will be deducted from the Service Fee;

(b)     the Company will pay directly to the relevant authorities within the period for payment permitted by law the full amount of the deduction or withholding; and

(c)     the Company will, if available, promptly forward to the Consultant an official receipt or other documentation evidencing such payment to such authority.

182    The word “Tax” is defined in cl 12.1 as follows:

"Tax" includes:

(a)     any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called and whether Australian, foreign, state, municipal, provincial, county or local (including, without limitation, fringe benefits tax, payroll tax, group or Pay as You Go tax, prescribed payments system tax and reportable payments system tax), excluding GST (as defined in clause 10); and

(b)     any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

(Emphasis added.)

183    Further, cll 10.1 and 10.2 stated that the amounts payable had been calculated excluding GST, but that if Mr Vize was required to pay GST in respect of any supply to Whistle Funds under the Second Consultancy Agreement, then, the parties had agreed that:

(a)    the prices in respect of those supplies would be increased by any amount equal to the amount of GST that Mr Vize would be required to pay (ignoring any input tax credits) on demand; and

(b)    Mr Vize would provide a tax invoice to Whistle Funds as required by law and the details of his ABN.

184    Importantly, the following text appears after cl 10.2:

The parties acknowledge that the Company may be required by law to withhold amounts from the Service Fee, for taxation purposes.

185    Standing back from it, what cll 6.3, 6.4, 10.1 and 10.2 in fact provided for is the following:

(a)    Mr Vize would be responsible for paying all taxes, including for the collection and remittance of GST to the ATO;

(b)    all payments made to Mr Vize would be paid exclusive of GST, but if he was required to pay GST, Whistle Funds would make up the differential so that he would be placed in the position where Whistle Funds was, in essence, paying him the amount of GST that would payable and he was not to be out of pocket; and

(c)    the parties agreed that Whistle Funds may be required to withhold amounts from the fees payable to Mr Vize on account of any applicable “Tax”, which was defined to include deductions for PAYG and, in such an instance, Whistle Funds would pay that tax to the relevant authority and provide evidence to Mr Vize.

186    A closer examination of these clauses reveals that Whistle Funds’ obligations to make deductions on a PAYG basis would depend on the position at law under its applicable tax obligations. Further, the arrangements in relation to GST were such that in substance Whistle Funds was paying for the additional component of GST and Mr Vize was receiving that additional sum for the purpose of remitting it to the ATO. Whilst it may be accepted that Mr Vize thereby had the opportunity to claim offsetting input tax credits and the like, the matters of finer detail that appear from the text of the applicable clauses disclose that the taxation arrangements as between the parties were more subtle than what Whistle Funds made them out to be in the submissions before me.

187    In supplementary written submissions, Whistle Funds contended that cl 6.3 firmly supported the conclusion that the relationship was one of principal and independent contractor, and that cll 6.4 and 10 did not suggest that Whistle Funds was required to deduct or withhold amounts for taxation purposes. Whistle Funds submitted that cl 6.3 confirmed that the Mr Vize was responsible for all tax liabilities, including income tax, payroll tax and workers’ compensation payments. It was submitted that cl 6.4 essentially operated as a protective mechanism in the event that Whistle Funds had any relevant obligations to pay “Tax”. It was submitted that cl 10.2 was not dissimilar to the clause considered in Tattsbet and that the final sentence of cl 10.2 was a “call back” to cl 6.4 in that it was an acknowledgement that in the event that Whistle Funds was required for some reason to withhold amounts from the “Service Fee” for taxation purposes, then, there was a mechanism for such withholding that was contemplated by the contract, without suggesting that such amounts were in fact required to be withheld.

188    In his supplementary written submissions, Mr Vize submitted that even if cll 6.3, 6.4 and 10.2 continued to operate (on the basis that the Second Consultancy Agreement was only partly rescinded), those clauses were “neutral” or of “very little import” as to whether Mr Vize was a contractor or employee. It was submitted that:

(a)    cl 6.3 only obliged Mr Vize to pay “applicable” taxes, which left the question open as to what the “applicable” taxes were and whether in fact they were required by to be paid;

(b)    in respect of income tax, Mr Vize was liable to pay such tax irrespective of whether he was an employee or contractor;

(c)    in respect of payroll tax and workers’ compensation payments, Mr Vize would only be responsible for such payments if the circumstances arose (such as him engaging another person to perform the service), but they would not and did not arise as he was a sole trader;

(d)    while cl 6.3 may reflect an assumption that Whistle Funds did not need to withhold PAYG, cll 6.4 and 10.2 qualified that it could if required to do so by law;

(e)    cl 6.4 expressly contemplated that Whistle Funds was able to withhold “Tax” from any amount payable to Mr Vize and again reinforced that Whistle Funds could deduct PAYG if it was required to do so by law;

(f)    cl 10.2 contemplated that Mr Vize would collect and remit GST if he was required to do so and, therefore, the Agreement did not require him to do so; and

(g)    further cl 10.2 provided that if Mr Vize was required to collect and remit GST, the fee payable to him would be increased to cover this amount.

189    In my view, Mr Vize’s contentions reflect the correct interpretation of cll 6.3, 6.4 and 10.2. Even though in practice Mr Vize collected and remitted GST, and Whistle Funds did not make deductions on account of PAYG, the clauses in essence required the parties to do what was required by law (ie Mr Vize would pay “applicable” taxes and levies and Whistle Funds would pay taxes, including make PAYG deductions, where it was required to do so). In one sense, the clauses sought to embrace whatever obligation would be applicable at law. That said, cl 6.3 did make Mr Vize responsible for the payment of applicable taxes.

190    On balance, I consider these relevant clauses to point more in the direction of the relationship being one of principal and independent contractor. Such clauses would not be necessary in an employment relationship.

191    As for the respondents’ reliance on comparisons with Tattsbet and EFEX Group, it is trite that no one case is the same as another, but the features of the taxation arrangements in the present case distinguish it from the situation in both of those cases. For example, in Tattsbet, the relevant worker was engaged under “agency agreements” to operate a “UNiTab Agency” in Brisbane and was, amongst other things, required to staff that agency with persons employed by her and took on the responsibilities of an employer, including attending to making deductions for PAYG obligations from the wages paid to her employees: at [10]-[11], [45] and [68]. Whilst it is correct that the relevant worker collected and remitted GST in respect of the amounts paid to her, no deductions were made by “UNiTab” from the fees paid to her on account of PAYG obligations and some of the clauses relating to the taxation arrangements are similar to those in this case, the overall contractual arrangements relating to the agency operated by the worker in question were markedly different to the facts in the present case. It was an entirely different arrangement. That is not to undermine the significance that the Full Court placed on the taxation arrangements, but to place them within the context of that case.

192    The position in EFEX Group was also distinct. There, the relevant worker had established a trust specifically to benefit from the associated tax arrangements, including for the purposes of income-splitting: at [45]-[46]. This was a powerful factor in the ultimate determination of the Full Court. Another critical factor discussed by the Full Court at [41] was the “almost complete freedom” that the worker exercised:

At the same time, we consider that the primary judge gave insufficient weight to the significance of the almost complete freedom that Mr Bennett had by reason of the contractual arrangements themselves. Mr Bennett was not required to devote all his time and activities during working hours to the performance of his duties for EFEX. Nor was he required to keep a record, or provide EFEX with a report, of the hours he worked. He was not given directions about how to carry out his tasks. He had the freedom to decide when and where he would meet clients or prospective clients. He was not required to attend the office except for meetings with Mr Brogan or South Australian branch meetings, which took place fortnightly. Nor was he required to seek approval from EFEX or Mr Brogan to attend private appointments. Thus, he could and did work out at a gym during business hours and attend university as he wished without seeking permission to do so. Like Mr Brogan, he had “free reign” about how he achieved sales. EFEX was only concerned with results, that is, that he met his sales targets.

193    What an examination of the decisions in Tattsbet and EFEX Group reveals is that they were decided within the particular context of the contractual arrangements applicable to the parties in those cases. This needs to be steadily borne in mind lest it be assumed that the reasoning and outcomes in those cases could be readily applied by parity to the present case without examination of the different circumstances at play.

194    Another term of the Second Consultancy Agreement that points in the direction of Mr Vize being an independent contractor is cl 1.2, which provides that Mr Vize could provide the services through such other person as agreed with Whistle Funds. That would ordinarily be consistent with an independent contractor conducting his or her own business and pursuant to which the relevant services could be provided by another person. However, the clause here was subject to Whistle Funds’ exercise of absolute discretion. Although that absolute discretion reserved to Whistle Funds an exercise of decisional freedom as to whether Mr Vize could engage another person to supply the relevant services, it is nevertheless a factor that points in the direction of an independent contractor relationship, though in my view it is not a particularly strong one.

195    Clause 1.6 of the Second Consultancy Agreement marginally points in the direction of an independent contractor relationship. It provides that Mr Vize is not prevented from providing services to third parties so long as he ensured that he was able to provide services to Whistle Funds. Ordinarily, a right to provide services to others would be indicative of an independent contractor pursuing his or her own business. However, in the context of the present case, I do not consider it to be an especially strong factor. Separately, it is to be borne in mind that many employees in the Australian economy work more than one job, subject to any fiduciary or other implied obligations they have to their respective employers.

196    Next, there are a series of clauses of the Second Consultancy Agreement that I consider to be neutral. These include cll 3, 4, 5, 7, 8 9 and 11:

(a)    by cl 3, Mr Vize warranted that he had the knowledge, skills, experience, expertise, resources and capacity to perform, and would perform, his obligations promptly, diligently and professionally. Other than in relation to the reference to “resources” (which I have addressed above), the warranty is one that would apply equally to both employees and independent contractors;

(b)    cll 4, 5 and 9 address confidentiality, intellectual property, and post-termination restrictions, which would also apply equally to both employees and independent contractors;

(c)    cll 7 and 8 deal with breaches of the Agreement and its termination, which are also neutral to the central question; and

(d)    clause 11 contains provisions of general application which are also neutral to the central question.

197    As I have found that the parties intended parts of Schedule 2 to continue to operate (ie other than the Third Paragraph), it also needs to be assessed. As has already been noted, it was agreed between the parties that Mr Vize would provide any services required of him and to which he agreed. In my view, such an obligation is neutral because the requirement to perform services as agreed with the other party can be applicable to both an independent contractor and an employee.

198    Next, there are a number of terms of the contractual arrangement between the parties that point in the direction of Mr Vize being an employee.

199    First, as I have already noted, although Mr Vize was to be paid a “fee”, it was one which was a fixed annual amount paid in equal monthly instalments and was not contingent on the performance of work, the delivery of outcomes, or the achievement of milestones. Whistle Funds indicated that it could be characterised as a “retainer”. However, in the context of the contractual arrangements between the parties as a whole, I think the correct way to characterise the fee is that it was akin to the payment of a fixed annual salary to a person engaged in full-time work for Whistle Funds. There was no component of that fixed amount that was put at risk subject to the provision of services or the quality of those services. This is a strong factor pointing in the direction of Mr Vize being an employee.

200    Second, the express contractual terms of the Second Consultancy Agreement demonstrate a significant right on the part of Whistle Funds to exercise control over the performance of the services Mr Vize was to provide and the corresponding obligation on his party to comply with those directions. Clause 1.3 provides that the “Key Person” would perform work at such times as were reasonably necessary to provide the Services as agreed between the parties, but clause 1.7 provides that Mr Vize is to procure the Key Person (which was himself) to comply with all lawful and reasonable directions given concerning the performance of those Services. That is indicative of not only the right to exercise control but also the exercise of such control in respect of the Services to be provided by Mr Vize. Although a right to control and the exercise of control may equally be exercised in relation to an independent contractor and may have less weight in the provision of professional services (where the putative employee will exercise skill and judgment in the performance of those services), in the present case, it nevertheless points in the direction of Mr Vize being an employee.

201    Third, Whistle Funds agreed to provide Mr Vize with paid sick and annual leave. This is a powerful factor pointing in the direction that Mr Vize was an employee.

202    Fourth, I do not consider that the terms of the Second Consultancy Agreement and the other terms that I have set out above at [141] as applicable between the parties establish that Mr Vize was conducting or was to conduct a business in his own right.

203    I accept that the fact that Mr Vize was responsible for the payment of any and all taxation as “applicable”, was required to maintain any applicable insurances, and could appoint another person to perform the Services and perform services for third parties point in the direction that Mr Vize was running his own business. These terms are to be seen in the context that Mr Vize had a registered business name and had obtained an ABN for the purpose of collecting and remitting GST, which are also indicative of Mr Vize running his own business (consistent with what he represented to the ATO).

204    However, whether in truth it could be said that Mr Vize was running his own business needs to be assessed in light of the services and the nature of the services he was to provide under the terms of the Second Consultancy Agreement viewed by reference to his provision of services in the role of Fund Manager. As already mentioned, under the Second Paragraph of Schedule 2 of Second Consultancy Agreement, it was contemplated that Mr Vize would provide consultancy services which were to include, but not limited to, financial modelling, cash flow management and preparation of investor reports. In the period leading up to the variations to the Agreement that occurred in July 2017 and Mr Vize’s appointment to the position of Fund Manager, the objective documentary evidence (in the nature of the invoices that had been issued by him up to that point in time) disclose that he was in essence performing full-time work for and on behalf of Whistle Funds. The unchallenged evidence was also that, whilst Mr Vize had performed some limited work for third parties at an earlier point in time (which ended in early 2016), he was not doing so by July 2017, though that may not have been known to Whistle Funds which means it may not have been an objective fact known to both parties at the time of the variations that occurred in July 2017. Against this, it may be readily inferred from the duties that Mr Vize was to perform in the position of Fund Manager that they were to be in the nature of full-time work and in respect of which he was to be paid a fixed annual fee in the nature of a salary.

205    The above matters also need to be viewed in the context of the objective surrounding circumstance that by 1 July 2017, Mr Vize was entrenched as part of Whistle Funds’ business and was performing services essential to that business. Whistle Funds was engaged in the business of managing investor funds across different trusts that held a portfolio of one or more investment assets in the nature of commercial real estate interests. The full-time role of Fund Manager (and the duties associated with that role, which were not in dispute) indicate that it was a position essential to the discharge of critical functions of Whistle Funds’ business.

206    In my view, the combination of these matters leads to the conclusion that the contractual arrangements in place between the parties are indicative of the fact that Mr Vize was to be engaged in Whistle Funds’ business, as opposed to carrying on his own business.

207    The central question as to whether Mr Vize was engaged as an employee or independent contractor requires an assessment of all the above indicia as arise from the rights and obligations of the parties as located in the contractual arrangements between them. As addressed above, there are some factors that weigh in favour of the characterisation of the relationship as one of principal and independent contractor, others that point in the direction of it being an employment relation and some which are neutral.

208    In my view, the most powerful factor which weighs in favour of the characterisation of the relationship as one of principal and independent contractor is the taxation arrangements between the parties. They loom large in the present case. However, when close attention is paid to the contractual terms, they are not as absolute as Whistle Funds contended them to be. Whilst Mr Vize was collecting and remitting GST to the ATO, the contractual arrangement was one whereby in essence Whistle Funds paid that amount to Mr Vize for collection and remittance. Further, whilst Whistle Funds did not in fact or in practice deduct any amounts on account of PAYG obligations, the contractual terms required it to make such deductions on account of “Tax” (including PAYG) as required by law. Nevertheless, I accept that Mr Vize had the opportunity to take advantage of whatever tax benefits flowed to him from the arrangements as specified in the contractual terms.

209    In my view, there are more powerful factors that weigh in favour of the conclusion that Mr Vize was an employee from July 2017 under the contractual terms agreed between the parties. These include that he was to be paid a regular and fixed fee in the nature of a salary, he was to be paid for sick and annual leave, he was to work in a full-time position that was essential to Whistle Funds’ business and he was subject to the exercise of control by Whistle Funds.

210    On balance, I am satisfied that Mr Vize was an employee of Whistle Funds from in or about July 2017 under the contractual terms as I have found them.

3.6    Appointment to the Managing Director Position – Determination of the central question by reference to the contractual terms

211    The next issue that requires determination is the identification of the relevant contract that governed the parties’ relationship from in or about 7 April 2021 and the terms of that contract. Again, these questions need to be determined before examining the relevant terms of that contract to address the central question as to (a) whether Mr Vize continued to be an employee following April 2021, or (b) alternatively, if, contrary to the conclusion I have reached above that Mr Vize was an employee in the period from July 2017, whether Mr Vize was an employee from April 2021.

3.6.1    Identification of the applicable contract and its terms

212    Mr Vize claims that in or about 7 April 2021, there was a material change to the contractual relationship between the parties by reason of his acceptance of the appointment to the positions of Managing Director and CEO of Whistle Funds. He claims that he was already an employee by this stage by reason of his appointment to the position of Fund Manager but contends that if he was not, then he became an employee from in or about 7 April 2021.

213    As I have made findings about the contractual terms that were applicable between the parties from in or about 1 July 2017 and concluded that Mr Vize was an employee from that time, the analysis below proceeds from that starting position, before addressing the position against the possibility that I am wrong in respect of the findings I have made.

214    Whistle Funds accepted that Mr Vize was offered and accepted the position of Managing Director in or about April 2021 but denied that Mr Vize was appointed to the position of CEO. It also accepted that Mr Vize’s fees at that time were $300,000 per annum, which increased to $350,000 in October 2023.

215    Whistle Funds contended that the role of Managing Director which was offered to Mr Vize, and which he accepted, fell within the scope of the Second Paragraph of Schedule 2 of the Second Consultancy Agreement as it involved the provision of services requested by Whistle Funds which Mr Vize agreed to provide. Whistle Funds further contended that the duties to be performed by Mr Vize in the position of Managing Director were not an expansion of his existing duties, but rather, involved many tasks that he was already performing and did not involve a substantial or profound change of the type addressed by French J in Martech International. This was also said to be consistent with the agreed fact recorded in the SAFI at [2] that throughout his engagement, Mr Vize performed services including but not limited to financial modelling, cash flow management and preparation of investor reports. As a result, Whistle Funds maintained that the Second Consultancy Agreement continued to apply as between the parties.

216    I reject Whistle Funds’ contentions. It is necessary to explain why.

217    For the reasons set out at [87]ff above, I accept that the offer that was made to Mr Vize, and which he accepted, was in respect of an appointment to the position of Managing Director. I am not satisfied that he was appointed to the position of CEO of Whistle Funds. The questions raised by these facts are (a) whether Mr Vize’s appointment to the position of Managing Director was accommodated by the Second Paragraph of Schedule 2 of the Second Consultancy Agreement (which I have found continued to apply as between the parties after July 2017), and (b) the contract and contractual terms that applied to the parties from in or about April 2017, including whether the Second Consultancy Agreement continued to apply to them.

218    I do not accept that what was agreed between the parties in relation to Mr Vize’s appointment to the position of Managing Director was accommodated by the terms of the Second Consultancy Agreement. In my view, it gave rise to “significant” or “profound” change (to use the language adopted in Martech International at [162] and Jack Chia at 576) to the services Mr Vize had been providing and the duties he was performing up until April 2021.

219    The fact that what was contemplated by Mr Vize’s appointment was a “significant” or “profound” change is reinforced by the text of the Offer Letter. The Offer Letter that Mr Silverman sent to Mr Vize on 7 April 2021 had several critical components to it. The first being that it contained an invitation or offer to Mr Vize to take up the “office” of Managing Director of Whistle Funds “should [he] so choose”. The second being that Mr Silverman communicated in unequivocal terms that he would be “relinquish[ing]” the office of Managing Director, which was consistent with the evidence that he gave and the objective fact that it was Mr Silverman who held that office and was discharging the duties of that office up to that point in time, rather than Mr Vize. The third being that Mr Silverman requested that Mr Vize “prepare a note” addressing “all items” that Mr Vize wished to address, including in relation to the “10% equity and an announcement”. This last aspect of the letter is important in making an assessment of the parties’ intentions, to be objectively ascertained, and to which I return below.

220    The fact that Mr Vize was being invited to accept the “office” of Managing Director is textually and contextually significant, as was the statement that Mr Silverman would be relinquishing that role which he had held up to that point in time. It is indicative of an objective intention of significant and profound change to the services being required of Mr Vize and to place him at or near the apex of Whistle Funds’ business. Contrary to the clear text of the Offer Letter, Mr Silverman gave evidence that Mr Vize’s appointment to the position of Managing Director was “in title only” and that it would involve performance of some “additional services”: Vize 1 at [76]-[77] and [82]. I do not accept Mr Silverman’s evidence, which I regarded as an attempt to contradict the clear terms of the Offer Letter and to minimise the significance of Mr Vize’s appointment to the office of Managing Director. The Offer Letter did not indicate that the appointment was to be “in title only” and expressly stated that Mr Vize would be appointed to that office and in essence take over the role that Mr Silverman was relinquishing, such that the latter would only be continuing as Chairman.

221    My conclusion above is not contradicted by the fact agreed between the parties that throughout his engagement, Mr Vize performed services including but not limited to financial modelling, cash flow management and preparation of investor reports. That is because, upon his appointment to the position of Managing Director, Mr Vize performed many more duties than these and took on the role that Mr Silverman was relinquishing.

222    Mr Vize’s evidence was that after April 2017, he continued to perform services in connection with being a Fund Manager, but performed many more duties as Managing Director which had previously been performed by Mr Silverman such as managing human resource obligations, setting and executing Whistle Funds’ asset sale strategy across its retail portfolio, coordinating its financial, legal and tax advice, as well as managing all aspects of the preparation of investor reports: Vize 1 at [57]. I accept Mr Vize’s evidence. Between 19 January 2021 and the Termination Date, Mr Vize was also appointed as a director of up to 13 different trustee companies within Whistle Fund’s group of companies. Although the discharge of Mr Vize’s duties as director in these various companies involved the performance of services in a different capacity, it is nevertheless indicative of the additional services he was to perform. Further, the Offer Letter was an express invitation to accept appointment to an “office”. These are all important matters of context as to the significant and profound changes that were occurring, which is corroborated by the evidence.

223    Importantly, Mr Vize’s evidence was consistent with the text of the Offer Letter in which Mr Silverman stated that he was relinquishing the role of Managing Director. That fact is also consistent with the announcements made to investors as borne out by the letter sent to an investor on 1 May 2021, as set out above at [89].

224    These objective facts and circumstances do not support the conclusion that what the parties were objectively contemplating and intending as at April 2017 was that Whistle Funds was requesting, and Mr Vize was agreeing to, the provision of services under the Second Paragraph of Schedule 2 of the Second Consultancy Agreement in a manner accommodated by that Agreement. That is a conclusion supported by the reasoning of French J in Martech International at [163], where his Honour found (albeit on facts that were different) that the relevant employee’s appointment to the position of Managing Director and Chief Executive Officer, and his predecessor’s relinquishment from those positions provided an evidentiary basis from which to infer the objective intention of the parties was to discharge the agreement that existed between the relevant parties up to that point in time. Of course, as I have already stated, no case is similar to another, but there are facts here that are supportive of that conclusion.

225    It is also significant that, in the Offer Letter, Mr Silverman requested that Mr Vize prepare a note for the matters that he wished to have covered, including an equity interest. It was common ground that such a note was not prepared in terms as requested by Mr Silverman, but there were several discussions about equity and an arrangement whereby Mr Vize was paid a proportion of declared dividends. Irrespective of whether the relevant note was prepared or further terms were agreed, it is to be inferred that both parties proceeded on the basis that the appointment to the office of Managing Director was a significant change that warranted new terms. It is indicative of an objective intention that the parties regarded the existing terms as not being applicable to the arrangement that would apply thereafter.

226    This conclusion is supported by the fact that various terms of the Second Consultancy Agreement (objectively viewed) did not sit conformably with the working arrangements between the parties as at April 2021 and with Mr Vize’s appointment to the office of Managing Director, and are in fact inconsistent with the nature of Mr Vize’s appointment to the office of Managing Director. In ascertaining the intentions of the parties and the terms to which they were agreeing, it is necessary to have regard to the objective facts and circumstances that existed on or by, or as at, April 2021. Irrespective of whether Mr Vize had become an employee from 1 July 2017, those objective facts and circumstances included that Mr Vize:

(a)    was being paid a fixed annual fee in equal monthly instalments;

(b)    was not presenting invoices other than (on the few occasions) when requested to do so and the payment of his fees was not conditional upon receipt of a valid tax invoice;

(c)    was being provided with paid sick and annual leave. Irrespective of whether the leave was recorded in the same manner as other employees or whether Mr Silverman was aware of that fact, it is the objective fact that existed by April 2021;

(d)    had been working in a full-time capacity for Whistle Funds and was being presented as an entrenched part of its business;

(e)    had been working from Whistle Funds’ office and using its resources, and was not supplying any of his resources or equipment;

(f)    was collecting and remitting GST to the ATO from the amounts paid to him; and

(g)    Whistle Funds was not deducting any amounts from the fees paid to Mr Vize on account of PAYG obligations.

227    In addition to the above, based on the unchallenged evidence before me in these respects, the further facts and circumstances that existed as at April 2021 were such that it may be inferred that the parties’ objective intentions were that:

(a)    Mr Vize would work as Managing Director in a full-time capacity and it could not be credibly suggested that he would not be required to work in such a capacity;

(b)    Mr Vize would work from Whistle Funds’ offices and would be provided with all necessary resources and equipment to do so, as had been the case up to that point in time;

(c)    Mr Vize would be promoted to investors and other third parties as a Managing Director in Whistle Funds’ business and not his own business, which in fact occurred; and

(d)    Mr Vize would work under the direction of Mr Silverman, which in fact occurred.

228    In view of these objective facts (and irrespective of the conclusions I have reached in relation to Mr Vize’s status as an employee from July 2017), it is plain that cl 2.1 and 2.2 of the Second Consultancy Agreement contained terms in respect of the payment of fees and invoicing that were no longer applicable to the method by which it was agreed that Mr Vize would be paid. Even if these clauses had survived past 1 July 2017 (contrary to the findings I have made at [154]), by April 2021, the objective circumstances were that Mr Vize was being paid a fixed annual fee in equal monthly instalments, the payment of that fee was not conditional upon Mr Vize performing work, and it was not conditional upon Whistle Funds receiving a valid tax invoice issued by Mr Vize. The objective circumstances are entirely consistent with these clauses no longer having any application to the contractual relationship between the parties, such that it can be inferred that the parties did not intend them to govern their contractual relationship at least from April 2021.

229    There are other clauses of the Second Consultancy Agreement that are inconsistent with or are not conformable with Mr Vize’s appointment to the position and office of Managing Director. As indicated above, cl 1.2 of the Second Consultancy Agreement specified that the Key Person had to be Mr Vize or “such other person as agreed by the Parties”, with Whistle Funds retaining an absolute discretion to not agree to another person. However, given that as at April 2021, Mr Vize was to be appointed to the office of Managing Director, I do not consider that reasonable commercially minded persons in the position of the parties would have contemplated that Mr Vize could supply and discharge the services of Managing Director in whole or in part through another person. Even if Whistle Funds retained an absolute discretion to withhold agreement to any such course that Mr Vize may have taken, that is indicative of the clause being otiose to the parties’ objective circumstances as at April 2021.

230    In my view, cl 1.6 of the Second Consultancy Agreement was also otiose to the parties’ circumstances as they existed in April 2021. As already addressed, that clause did not prevent Mr Vize providing services to third parties, so along as he ensured that he was able to provide the Services required during the term of that Agreement at the times mutually agreed between the parties. On its face, the clause permitted Mr Vize to provide any services to any third party, including a competing investment fund, during the term of the Second Consultancy Agreement. Critically, the clause does not require Mr Vize to obtain Whistle Funds’ consent to provide such services. Although cl 9 of the Second Consultancy Agreement contained post-termination restrictive covenants, these did not apply during the term of the Agreement. Again, I do not consider that commercially minded persons in the position of the parties would have contemplated that Mr Vize could, as the Managing Director of Whistle Funds, provide services to third parties (including competitors) without first obtaining the consent of Whistle Funds.

231    It is for these reasons that I do not accept that what was agreed between the parties in relation to Mr Vize’s appointment to the position and office of Managing Director could be accommodated by either Schedule 2 of the Second Consultancy Agreement or its other terms. There was such a significant and profound change that had occurred that (having regard to all of the above matters) I am not satisfied that the parties intended the Second Consultancy Agreement to continue to operate as between them.

232    Based on the foregoing and assessing the parties’ intentions objectively, I am satisfied that in April 2021, the parties entered into a new contract that included the following terms:

(a)    Mr Vize would be appointed to the position and office of Managing Director of Whistle Funds;

(b)    Mr Vize would work in that position in a full-time capacity;

(c)    Mr Vize would be provided with the equipment and resources to perform his duties, and was not required to provide his own;

(d)    Mr Vize would be paid a fixed annual fee of $300,000 (or as varied from time to time), which would be payable in equal monthly instalments;

(e)    Mr Vize would be entitled to be paid for sick leave and annual leave;

(f)    Mr Vize would use the name of Advize to issue invoices, but Mr Vize was not required to submit invoices as a condition of receiving payment of his fees;

(g)    Mr Vize would need to provide invoices to Whistle Funds when requested to do so;

(h)    Mr Vize would collect and remit GST to the ATO and Whistle Funds would pay Mr Vize an amount of money to enable him to pay such GST to the ATO; and

(i)    Mr Vize would be responsible for his own income taxation obligations, and Whistle Funds would make no deductions on a PAYG basis.

233    The question that this then raises is whether the parties intended to rescind the Second Consultancy Agreement at this time or whether they intended that it would continue in operation other than as varied. In my view, given the substantial nature of the appointment to the position and office of Managing Director, and the numerous clauses of the Second Consultancy Agreement that were no longer applicable to that relationship, I am satisfied that the parties intended to rescind the Second Consultancy Agreement in its entirety.

3.6.2    Addressing the central question by reference to the terms of the parties’ contractual arrangements

234    Based on the foregoing, it is next necessary to examine the terms of the contractual arrangements between the parties in order to answer the central question. The analysis in this respect is similar to that which I have addressed in Part 3.5.2 above. It is unnecessary to repeat that analysis.

235    In so far as there were terms agreed between the parties as at April 2021 that point in the direction of Mr Vize being an independent contractor, the ones which, in my view, are critical are the following:

(a)    Mr Vize was to continue to be engaged by Whistle Funds as a consultant;

(b)    Mr Vize continued to be responsible for collecting and remitting GST to the ATO; and

(c)    Whistle Funds would not be deducting amounts from the fees paid to Mr Vize on account of PAYG obligations.

236    Again, the most persuasive factor weighing in favour of characterising the relationship between the parties as that of principal and independent contractor are those in relation to the taxation arrangements. My conclusions in this respect are the same as those I have reached above at [208].

237    However, there were other terms agreed between the parties as at July 2021 that in my view favour the characterisation the contractual relationship between the parties as one of employment. These are the same terms and factors that I have addressed above at [198]ff.

238    A further factor that weighs in favour of the relationship being characterised as one of employment is that I do not consider that from April 2021, it could be said that Mr Vize was conducting his own business and is to be properly characterised as working in the business of Whistle Funds. In addition to the reasons set out at [205]-[206] above, from April 2021, Mr Vize was holding the position and office of Managing Director, which firmly entrenched him as working in and for the business of Whistle Funds. He was to be the face of the business to investors and the public at large, as is corroborated by the letter sent to an investor on 1 May 2021 (see [89] above).

239    Whilst the taxation arrangements again loom large in the overall assessment of the central question, I am satisfied that Mr Vize was engaged as an employee from the time he was appointed to the position of Managing Director. Thus, even if contrary to the findings I have made above in relation to Mr Vize being an employee from July 2017, I am satisfied that he was an employee from at least April 2021.

240    For completeness, even if I had concluded that the Second Consultancy Agreement continued to operate after 7 April 2021 (contrary to the findings I have made above), my view is that the only clauses of that Agreement that would have continued to have any operation were cll 1.3, 1.4, 1.5, 1.7, 1.8, 3, 4, 5, 6, 7, 9 and 10. I do not regard any of these clauses (which I have already assessed above) as changing my conclusion that Mr Vize was an employee on and from 7 April 2021 (to the extent that these clauses had any continuing operation). Further, I would not have regarded cl 8 (Termination) of the Second Consultancy Agreement as having any continuing operation for the reasons I address in the next section.

4.    REASONABLE NOTICE

241    It is convenient to next deal with Mr Vize’s claim that as at the Termination Date, it was an implied term of the alleged employment contract that he was entitled to a term of reasonable notice of 12 months (or, alternatively, 10 months) of the termination of his employment: AOS at [33]. Mr Vize also pressed an alternative claim that even if he remained an independent contractor, he was entitled to reasonable notice of the termination of his engagement: AOS at [34].

242    As I have concluded that as at April 2021, the parties rescinded the Second Consultancy Agreement, there was no longer any term agreed between the parties as to notice. It follows that, as a matter of law, it was an implied term of Mr Vize’s employment contract as at April 2021 that Whistle Funds could terminate that employment contract with reasonable notice only: Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 422-3 (Brennan CJ, Dawson and Toohey JJ); see, recently, Cropper at [100]-[107] (Snaden J).

243    For completeness, I note that even if, contrary to the findings I have made, the parties did not rescind the Second Consultancy Agreement in April 2021, I am not satisfied that commercially minded persons in the position of the parties objectively intended that cl 8.1 of the Second Consultancy Agreement would continue to operate. Clause 8.1 provided that either party could terminate that Agreement by giving one month’s written notice or, in the case of Whistle Funds, making a payment in lieu of one month’s written notice. I do not consider that reasonable commercially minded persons in the position of the parties would have agreed to appoint Mr Vize as Managing Director of a company that was managing a major portfolio of commercial real estate assets on the basis that his engagement could be terminated on one month’s written notice by either party. That position, on the one hand, would have left Whistle Funds with only a month to find a suitable replacement for Mr Vize and, on the other hand, the same period for Mr Vize to obtain alternative employment. In this respect, I further observe that it would have been open to Whistle Funds to, for example, provide evidence of the employment contract applicable to the position of Managing Director as previously held by Mr Silverman and what notice provision it contained. No such evidence was provided. It is unnecessary to say more about this topic as I have not accepted the premise that the Second Consultancy Agreement continued in operation after April 2021.

244    There was no dispute between the parties that the “primary purpose” of notice of termination in an employment contract “is to enable the employee to obtain new employment of a similar nature”: Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [220] (Gillard J); see also Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 458 (Gray J). The period of notice that is reasonable is to be assessed at the time that notice is given and by reference to a range of factors that have come to be well established. The relevant considerations in this respect were recently and succinctly stated by Snaden J in Cropper at [107] (whose analysis I adopt):

Where, in a given case, a requirement of reasonable notice does condition the right of an employer to terminate a contract of service, attention inevitably turns to what period of notice is reasonable in the circumstances there prevailing. That falls to be considered at the time that notice is to be given: Australian Blue Metal Ltd v Hughes [1963] AC 74, 99 (Lord Devlin, delivering the opinion of the Privy Council). What is reasonable will depend upon consideration of various circumstances, including the length of service that the employee has completed, the seniority of his or her position, the employee’s age and the ease with which he or she might be expected to find suitable alternative employment: Macauslane v Fisher & Paykel Finance Pty Ltd [2003] 1 Qd R 503, 517 [27] (Holmes J, with whom McMurdo P and White J agreed in the result). Again, that is not an exhaustive list of the circumstances that bear upon the assessment.

(Original emphasis retained in italics. Emphasis added in bold.)

245    Snaden J determined in that case that the period of reasonable notice should be three months, having regard to the fact that the applicant was “a tertiary-educated professional who was (or was approaching) 70 years of age”, was “retired”, had worked for the respondent for 14 years (in addition to a year as a contractor) and earned in the vicinity of $130,000 per annum (see [165]-[166]).

246    Mr Vize’s submission pointed to cases and commentaries where different periods of reasonable notice have determined by various courts: eg see Irving M, “Australian and Canadian approaches to the assessment of the length of reasonable notice” (2015) 29 Australian Journal of Labour Law 159. However, no one case can govern the result of another.

247    Mr Vize pleaded that the reasonable notice term was 12 months, or alternatively, 10 months, having regard to the seniority of Mr Vize’s role, his remuneration, his length of service as an employee (being over 7.5 years as at the Termination Date), his age (44 years), his experience, the expected period it would take him to obtain alternative employment and the period that he could have expected to remain employed at Whistle Funds but for the termination of his employment: ASOC at [58].

248    The unchallenged evidence as at 20 February 2026, when Mr Vize deposed his first affidavit, is that since the Termination Date, Mr Vize has not earned any income: Vize 1 at [131]. He gave evidence that since April 2025, he had been refining his CV and seeking job opportunities: Vize 1 at [133]. He met with several professional acquaintances to discuss potential job opportunities in the period from April to July 2025: Vize 1 at [134]. It was not until mid-September 2025 that Mr Vize was successful in securing a job. Sometime shortly after 18 September 2025, Mr Vize agreed in principle to be engaged by a company identified as “Rook Partners” to work in the position of Head of Funds Management, commencing on 1 March 2026, where he will initially be engaged as an independent contractor to establish a new funds management business and is to be paid $20,000 per month plus GST. He will also be awarded a 20% ownership stake in the funds management division of Rook Partners that he will be establishing, with the potential of earning a $60,000 bonus in the future, contingent on Rook Partners being appointed as the new manager of a trust formerly managed by Whistle Funds: Vize 1 at [135]. Thus, the evidence discloses that it took Mr Vize approximately six months or so to secure an alternative engagement. That engagement was not due to commence until some months later, but no explanation was given for that delay.

249    I am not satisfied that it has been established in all the circumstances that a period of 12 months or 10 months was reasonable. Having regard to the length of Mr Vize’s service, which, based on my finding that Mr Vize became an employee in or about 1 July 2017, was approximately 7 years and 10 months (along with a further approximately 5 years providing consultancy services), the seniority of Mr Vize’s role as Managing Director, his relatively high remuneration, and his potential to secure an alternative engagement, I am satisfied that reasonable notice as at the Termination Date was six months.

250    It is not in dispute that Whistle Funds provided Mr Vize with only one month’s pay in lieu of notice upon the termination of his employment. I will hear the parties about what orders as to damages should be made in light of the findings I have made.

251    In light of the findings I have made, it is unnecessary to address Mr Vize’s alternative claim that he was entitled to reasonable notice even if he had remained an independent contractor as at the Termination Date.

5.    WAS MR VIZE AN EMPLOYEE UNDER THE FW ACT?

252    The next issue that arises is whether Mr Vize was an employee under the FW Act. It follows from my conclusion that Mr Vize was an employee at common law that Mr Vize was a “national system employee” within the meaning of ss 13 and 15 of the FW Act.

253    A related but distinct issue arises which is whether Mr Vize was an employee under the FW Act from at least 26 August 2024. As I have concluded that Mr Vize was an employee at common law from July 2017 or, alternatively, from April 2021, it is strictly unnecessary to answer this question. Nevertheless, I have done so for completeness.

254    On 26 August 2024, s 15AA of the FW Act, which was inserted by Schedule 1, Part 15 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth), came into effect. Section 15AA of the FW Act provides as follows:

15AA    Determining the ordinary meanings of employee and employer

(1)    For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person.

(2)    For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:

(a)    the totality of the relationship between the individual and the person must be considered; and

(b)    in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in practice.

Note:    This section was enacted as a response to the decisions of the High Court of Australia in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

(3)    Subsections (1) and (2) do not apply to the following provisions of this Act:

(a)    Divisions 2A and 2B of Part 1‑3;

(b)    Part 3‑1, to the extent that Part 3‑1 applies only because of the operation of section 30G or 30R.

(Original emphasis.)

255    It is plain from the text of s 15AA that it was response to the decisions of the High Court in Personnel Contracting and Jamsek. By its express terms, it seeks to reintroduce the application of the “multifactorial” approach to an assessment of the substance and reality of the relation by an examination of the “totality of the relationship” between the parties in addressing the central question as to whether a person is an employee or independent contractor for the purposes of the FW Act. That necessarily includes an examination of how the contract was or is performed in practice and does not limit the analysis to the rights and obligations as between the parties by reference to the terms of their contractual arrangements.

256    On the application of the approach required by s 15AA of the FW Act, I am satisfied that Mr Vize was an employee of Whistle Funds from 26 August 2024. With the exception of the taxation arrangements outlined above (see eg at [208]) above, no other feature of the relationship between Mr Vize and Whistle Funds, whether by reference to the contract governing the relationship or how it was performed, indicates that Mr Vize was an independent contractor. The evidence in relation to these matters was largely not in dispute or was unchallenged. In particular, as of 26 August 2024, Mr Vize:

(a)    performed the role of Managing Director under the direction and control of Mr Silverman, who was, by then, the Executive Chairman, and who set the direction and strategy for the business;

(b)    did not in fact assign or delegate the performance of his duties to any other person;

(c)    did not in fact perform work for or provide consulting services to any third parties and had not done so since March 2016: T55.18-.30;

(d)    was paid a fixed annual amount in equal monthly instalments in the nature of an annual salary regardless of whether or not he issued an invoice (although Mr Vize did still issue invoices on occasion on request); and

(e)    was entitled to and did in fact receive, annual and sick leave.

257    The respondents’ written and oral submissions said little to gainsay these conclusions, other than to emphasise the taxation arrangements between the parties. I reject those submissions and I am satisfied that Mr Vize was an employee for the purposes of the FW Act from at least 26 August 2024.

6.     ANNUAL LEAVE CLAIM

258    This aspect of Mr Vize’s claim may be dealt with briefly. It was common ground between the parties that if I concluded that Mr Vize was an employee at common law either from July 2017 or April 2021, Mr Vize would succeed in relation to his claim that Whistle Funds contravened s 90(2) of the FW Act by failing to pay his accrued annual leave entitlements upon the termination of his employment. It was further common ground between the parties that the determination of the quantum of Mr Vize’s entitlements would depend on whether Mr Vize was an employee from July 2017 or April 2021. It was also common ground between the parties that if I did not accept that Mr Vize was an employee at common law, but concluded that he was an employee under s 15AA of the FW Act, he would succeed in relation to his claim as to a contravention of s 90(2) of the FW Act, with the quantum of his accrued entitlements to be determined from 26 August 2024.

259    In the result, I have concluded that Mr Vize was an employee at common law from July 2017. It follows that Mr Vize has established that Whistle Funds contravened s 44 of the FW Act by failing to comply with s 90(2) by failing to pay his accrued annual leave entitlements upon the termination of his employment, with the quantum of those accrued entitlements to be calculated from that date.

7.    LONG SERVICE LEAVE CLAIM

260    This aspect of Mr Vize’s claim may also be dealt with briefly. It was common ground between the parties that Mr Vize would be successful in his claim for long service leave pursuant to s 4(2)(a)(iii) of the LSL Act if I concluded that he was an employee at common law from July 2017. This was because (subject to what I point out below) it was not in dispute that if Mr Vize was an employee at common law from July 2017, he fell within the definition of “worker” within the meaning of the LSL Act.

261    In the RCS at [68]-[71], the respondents submitted that the ASOC did not plead why Mr Vize was said to be a person to whom the LSL Act applied and that there is no positive pleading as to how s 4 of the LSL Act is engaged or how it is engaged having regard to the definition of “worker” as contained in s 3 of that Act. This pleading point is an arid and tedious one. The ASOC at [53] expressly pleads that “[b]y reason of the facts pleaded at paragraph 14.a above, as at the Termination Date, Mr Vize had…accrued but untaken long service leave, which he accrued pursuant to the [LSL Act]”. The ASOC at [14(a)] pleads that Mr Vize continued to be an employee from the Promotion Date to the Termination Date. The essence of that pleading is that Mr Vize had been an employee from in or about July 2017 and continued to an employee up until the Termination Date. It is plain that Mr Vize’s pleaded case is that he is entitled to long service leave because it is claimed that he was an employee from July 2017. A person who is employed falls within the meaning of “worker” in s 3 of the LSL Act. I do not accept that there is any ambiguity in the pleaded case, though it could have perhaps been pleaded with greater precision.

262    As I have concluded that Mr Vize was an employee at common law from July 2017, he has established an entitlement to be paid long service leave, with the quantum of those accrued entitlements to be calculated from that date.

8.    SUPERANNUATION CLAIMS

8.1    FW Act claim for superannuation

263    It is common ground that between 28 March 2012, when Mr Vize was first engaged by Whistle Funds, and the Termination Date, Whistle Funds did not make any contributions to a superannuation fund for the benefit of Mr Vize. It was also common ground that if I determined that Mr Vize was an employee at common law from either July 2017 or April 2021, it would follow that Whistle Funds was required to have made superannuation contributions to a superannuation fund on behalf of Mr Vize from one of those dates as applicable in order to avoid being liable to pay the superannuation guarantee charge imposed on the relevant superannuation guarantee shortfall in accordance with the mechanics as to how the SG Act operates upon employers.

264    However, in respect of this aspect of his claim, Mr Vize does not plead any contravention of the SG Act. Rather, he pleads that Whistle Funds contravened s 116B of the FW Act between 1 January 2024, when that section entered into force, and the Termination Date.

265    Section 116B of the FW Act provides that “[a]n employer must make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee”. Section 44 of the FW Act is a civil remedy provision which provides that an employer must not contravene a provision of the “National Employment Standards”, which includes s 116 of the FW Act.

266    Given that I have concluded that Mr Vize was an employee from July 2017, it follows that Whistle Funds contravened s 116B of the FW Act from the commencement of that section on 1 January 2024 to the Termination Date.

8.2    SG Act claim for superannuation

267    What remains to be determined is whether, despite not being an employee for the purposes of the FW Act prior to 1 July 2017, Whistle Funds was nevertheless required to make superannuation contributions on Mr Vize’s behalf into a superannuation fund pursuant to the SG Act before the commencement of s 116B of the FW Act.

268    Mr Vize pleads that he was an employee of Whistle Funds for the purposes of the SG Act from 28 March 2012 (when he was first engaged by Whistle Funds): ASOC at [45]-[46]. The dispute between the parties focussed on the application of s 12 of the SG Act, which relevantly provides:

12    Interpretation: employee, employer

(1)    Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

(a)    expand the meaning of those terms; and

(b)    make particular provision to avoid doubt as to the status of certain persons.

…

(3)    If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

…

269    Mr Vize submitted that both the First and Second Consultancy Agreements were ones whereby he worked under contracts that were “wholly or principally” for his labour such that he was an “employee” within the meaning of s 12(3) of the SG Act: AOS at [21].

270    It was not in dispute between the parties that s 12(3) of the SG Act has three elements: Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118; 278 FCR 502 at [82] (Perram and Anderson JJ, with whom Wigney J agreed, including at [111] and [117]); and Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48; 296 FCR 336 at [29] (Perram and Anderson JJ). These are:

(a)    that there should be a “contract”;

(b)    which is wholly or principally “for” the labour of a person; and

(c)    that the person must “work” under that contract”.

271    It was also not in dispute between the parties that whether a contract is “wholly or principally for the labour of the person” for the purposes of s 12(3) of the SG Act is to be assessed from the perspective of the putative employer, which is to be determined by reference to the terms of the contract: Moffet at [84]–[86] and ZG Operations at [49]-[50]. The word “for” directs that such an enquiry examines the purpose of the relevant contract from the perspective of that putative employer. As the Full Court in Moffet reasoned at [84]-[85]:

Since s 12(3) poses the question of whether the contract is ‘for’ the labour of a person, this shows that Parliament was mandating an inquiry into the purpose of the contract from the perspective of the person obtaining the benefit of the labour (ie the quasi-employer). On no view could the question posed by s 12(3) be answered by asking whether the contract was wholly or principally ‘for’ wages.

What did Dental Corporation receive for entering into the Services Agreement? In particular, did it receive ‘wholly or principally’ the labour of Dr Moffet? In answering that question it is irrelevant to ask what Dr Moffet might have received from Dental Corporation.…

272    It is thus necessary to examine the terms of the First and Second Consultancy Agreements to ascertain whether, from the perspective of Whistle Funds, they were wholly or principally for the labour of Mr Vize.

8.2.1    The First Consultancy Agreement

273    In relation to the First Consultancy Agreement, Mr Vize submitted that cl 3.1, which provides that “[d]uring this Agreement the Consultant [Mr Vize] will provide consultancy services as required by Whistle Funds Management and agreed between the parties from time to time” (emphasis added), and cl 3.2(c), which provides that “[t]he Consultant will determine how the Services are performed”, provides “no ability to subdelegate at all”: Applicant’s Opening Submissions in Reply dated 30 April 2026 (AOSR) at [9(a)].

274    Whistle Funds contended that a contract that “leaves the contractor free to do the work himself or to employ other persons to carry it out” is not “wholly or at all for the labour of the person”: Neale v Atlas Products (Vic) Pty Ltd [1955] HCA 18; 94 CLR 419 at 425 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ), as cited by the majority of the Full Court in ZG Operations at [51] (Perram and Anderson JJ). It was submitted at ROS [20] and RCS [59] that it did not matter that “the contractor has himself performed the bulk of the work under the contract or that it was the expectation of the parties that he would do so if, in truth, the contract did not create the relationship of master and servant”: Neale at 425.

275    Whistle Funds relied exclusively upon cl 3.2(c) of the First Consultancy Agreement to contend that it provided Mr Vize with complete discretion as to the manner in which the Services were to be performed under that Agreement, which included who was to provide the Services on behalf of Mr Vize, having regard to:

(a)    the use of the words “will determine” and “how”;

(b)    the fact that “Consultant” is defined to be Mr Vize; and

(c)    the fact that “Services” are defined in cl 3.1 as “consultancy services as required by Whistle Funds Management and agreed between the parties from time to time … to include but not limited to financial modelling, cash flow management, and preparation of investor reports”: RCS at [61]-[63].

276    Although Whistle Funds acknowledged that the discretion in cl 3.2(c) was subject to cl 13(b), it maintained that these clauses did not operate to characterise the First Consultancy Agreement (from its perspective) as a contract “wholly or principally for the labour of” Mr Vize: RCS at [64]. Whistle Funds contended that the recitals, and cll 3.1, 3.2(c) and 4(a) of the First Consultancy Agreement (extracted in full at [34]-[35] above) made apparent that the focus of that Agreement, and what that Agreement was “wholly or principally for”, was the provision of services.

277    I reject Whistle Funds’ contentions. Reading the First Consultancy Agreement as a whole, it is clear that from the perspective of Whistle Funds, the contract was one wholly or principally for the supply of Mr Vize’s labour. There are several parts of the First Consultancy Agreement that overwhelmingly support that conclusion, as follows:

(a)    the Recitals make plain that “William Silverman” has “requested the Consultant to provide services to” Whistle Funds, which makes it plain that the purpose of the Agreement was for Mr Vize (who was defined as the “Consultant”) to provide services to Whistle Funds;

(b)    the defined term of “Consultant” referring to Mr Vize is significant as almost all of the operative clauses of the First Consultancy Agreement create rights and obligations in respect of the “Consultant”;

(c)    cl 3.1 required Mr Vize to provide the consultancy services as required by Whistle Funds which were to be those agreed between the parties, and were to include but not be limited to financial modelling, cash flow management and preparation of investor reports;

(d)    cl 3.2(a) required Mr Vize to exercise professional skill and diligence, and to act reasonably;

(e)    cl 3.2(b) required Whistle Funds to inform Mr Vize of any changes to the services to be provided from time to time;

(f)    cl 3.2(c) provided that Mr Vize was to determine how the services were to be performed;

(g)    cl 4(b) required Whistle Funds, upon receipt of a valid tax invoice, to pay Mr Vize at the “Daily Rate” for the days on which he performed services;

(h)    by cl 5, Mr Vize warranted that he was suitably qualified to provide the services and that the services would be provided with due skill and care;

(i)    the obligations in cl 6 (as to confidentiality), cl 7 (as to privacy) and cl 9 (as to return of materials) were all directed to Mr Vize (and/or Whistle Funds);

(j)    cl 10(b) provided that Mr Vize had no authority to bind Whistle Funds to any contracts or otherwise;

(k)    cl 13 provided that, whilst Whistle Funds was permitted to transfer, assign or otherwise dispose of or deal with its rights and obligations under the Agreement with notice, Mr Vize could “not sub-contract the whole or any part of the Services or assign any of [his] rights and obligations under this Agreement except with the consent of Whistle Funds”.

278    I do not accept Whistle Funds’ contention that the breadth and generality of cl 3.2(c) meant that the First Consultancy Agreement is to be characterised as one that was not wholly or principally for the supply of Mr Vize’s labour. I accept that the text of cl 3.2(c) (that Mr Vize would “determine how the Services are performed”) conferred a broad ambit upon Mr Vize as to how the services were to be performed, but that clause must be read subject to the other clauses of the Agreement. Most importantly, as noted above, cl 13(b) not only prevented Mr Vize from assigning the whole or part of his rights and obligations under the Agreement, but it also prevented him from sub-contracting any part of those rights and obligations without Whistle Funds’ consent. Moreover, all of the operative obligations contained in the Agreement were directed personally to Mr Vize and were not extended to operate to his nominee, contractor or other person. Nor was he obliged to procure that any other person abide by those obligations.

279    Reading the terms of the First Consultancy Agreement as a whole, and from the perspective of Whistle Funds, I am satisfied that those terms establish that it was a contract that was wholly or principally for the labour of Mr Vize.

280    It follows that I am satisfied that Whistle Funds did not make superannuation contributions on Mr Vize’s behalf during the operation of the First Consultancy Agreement. The parties did not make any submissions as to what flowed from this failure on the part of Whistle Funds. The SG Act does not impose a positive obligation on the part of an employer to make superannuation contributions on behalf of an employee to a nominated superannuation fund. Rather, it operates by imposing a charge on a relevant employer, unless particular steps are taken by that employer to make superannuation contributions: see s 16 of the SG Act. An employee does not have standing under the SG Act to make a claim for compensation. The ASOC does not plead any claim for compensation in respect of any non-compliance on the part of Whistle Funds. Instead, Mr Vize’s pleaded case is that by failing to make superannuation contributions, including under the First Consultancy Agreement, Whistle Funds contravened s 116B of the FW Act from 1 January 2024: ASOC at [49]-[50]. Mr Vize made no submission as to how that contravention could apply retrospectively in respect of acts done prior to the commencement in operation of s 116B. I am not prepared to make such a finding at this stage but will enable the parties to address me on the appropriate relief that should follow from the findings I have made.

8.2.2    The Second Consultancy Agreement

281    In relation to the Second Consultancy Agreement, Mr Vize submitted that cl 1.1, which provides that “[Whistle Funds] appoints the Consultant, and the Consultant accepts the appointment, to provide the services described in Schedule 2” (emphasis added), makes clear that Mr Vize was appointed to provide the services in Schedule 2 such that the purpose of the contract was for the provision and receipt of his personal services. He further submitted that cl 1.2, which provides that “[t]he Consultant must provide Andrew Vize or such other person as agreed by the parties (which agreement may be withheld by the Company at its absolute discretion) from time to time (Key Person) to deliver the Services under this Agreement” (emphasis added in underline), makes clear that Whistle Funds had reserved for itself absolute control over the provision of services by Mr Vize personally. Mr Vize contended that the possibility that Mr Vize might obtain permission for some services to be performed by another person did not change the character of the Second Consultancy Agreement as being one wholly or principally for the labour of Mr Vize.

282    Mr Vize contended that cl 1.2 did not give rise to an unlimited power of delegation: cf Neale. Mr Vize submitted that an unlimited power of delegation “goes a long way” to exclude an independent contract (as opposed to an employment contract): relying upon R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; 85 CLR 138 at 151, cited in ACE Insurance at [68] (Buchanan J). It was submitted that that there is no binding authority that establishes that a worker’s ability under a contract to engage others to perform services with the approval of the other party establishes that the contract is not one wholly or principally for the supply of the worker’s labour: AOSR at [8]; ACS at [31]. Mr Vize acknowledged that in Foster, the High Court sought to examine what occurred in practice between the parties, which may be inconsistent with Personnel Contracting and Jamsek. However, Mr Vize submitted that whether analysed by reference to the relevant contractual terms or by reference to what occurred in practice, Whistle Funds had an “absolute discretion” to control who performed the work: ACS at [32].

283    Whistle Funds contended that cll 1.1-1.2, 1.4, 1.6-1.7, 2, 6, 10 and Schedule 2 of the Second Consultancy Agreement (extracted in full at [48]-[57] above) all demonstrated that the Second Consultancy Agreement was for the provision of services, as opposed to Mr Vize’s labour, as the parties contemplated that such services could be provided by a “Key Person” who could be someone other than Mr Vize: RCS at [66]-[67].

284    There was a degree of imprecision in both parties’ contentions. The authorities relied upon by both parties need to be approached with care.

285    The issue before the High Court in Neale related to whether an employer had failed to make appropriate deductions from the “salary or wages” of an employee on account of tax obligations under the Income Tax and Social Services Contribution Assessment Act 1936–1952 (Cth). The expression "salary or wages" was defined to mean "salary, wages, commission, bonuses or allowances paid (whether at piece-work rates or otherwise) to an employee as such" and included any payments made "under a contract which is wholly or substantially for the labour of the person to whom the payments are made": see Neale at 423-424 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ). It was in that context that the Court reasoned as follows at 424-425:

…It is clear that moneys paid to an independent contractor in satisfaction of a contractual obligation do not, in the ordinary legal sense, represent salary or wages. Nor are the general words of the definition of “salary or wages” appropriate to assimilate the remuneration of an independent contractor to the defined term. “Salary or wages” means salary, wages, commission, bonuses or allowances paid to an employee as such. The question then arises whether the particular provision that the defined term shall include payments made under a contract which is wholly or substantially for the labour of the person to whom the payments are made sufficiently widens the meaning of the term to embrace, at least in some circumstances, the remuneration of an independent contractor. In the argument addressed to this Court there may have been a suggestion that if in the case of any independent contractor it appeared that the parties contemplated that the contractual work would be substantially performed by the independent contractor himself, although the terms or conditions of the contract, whether express or implied, did not actually require it, the particular extension of the defined term would be sufficient justification for characterizing his remuneration as salary or wages for the purposes of s 221C. This suggestion, however, is without validity, for if the contract leaves the contractor free to do the work himself or to employ other persons to carry it out the contractual remuneration when paid is not a payment made wholly or at all for the labour of the person to whom the payments are made. It is a payment made under a contract whereby the contractor has undertaken to produce a given result and it becomes payable when, and only when, the contractual conditions have been fulfilled. Moreover, the nature of the payment is not affected by the circumstance that the contractor has himself performed the bulk of the work under the contract or that it was the expectation of the parties that he would do so if, in truth, the contract did not create the relationship of master and servant. It may be, however, that in cases where an independent contractor is required by the terms of his contract to perform the contractual work himself the addition to the general definition may have some application, but it is unnecessary, in the circumstances of this case, to express any concluded view concerning contracts of such a special class.

(Original emphasis retained in italics. Emphasis added in bold.)

286    In World Book (Australia) Pty Ltd v Commissioner of Taxation (Cth) (1992) 27 NSWLR 377, the Court of Appeal of New South Wales had occasion to consider s 221A(1) of the Income Tax Assessment Act 1936 (Cth), which defined the expression “salary or wages” to include any payments made under a contract that is wholly or principally for the labour of the person to whom the payments are made, but in circumstances where s 221A(2) gave examples of such a contract. Meagher JA (with whom Clarke JA agreed and Sheller JA also agreed in the result) observed at 381 that the amendments in s 221A(2) had been made with the intention to seek to reverse the effect of the High Court’s decision in Neale (though expressed doubt as to whether it did in fact do so). The point in issue in World Book was whether the putative employer was obliged to deduct tax from a commission paid out for the sale of a set of encyclopedia.  Meagher JA concluded at 381 that there was no such obligation because as the relevant contract with the putative employee contained a power of delegation, s 221A(2) did not apply to it. His Honour then reasoned at 381-2 that even if he was wrong about this view, the relevant commission payments made to the putative employee were in consideration for the achievement as a result and not wholly or principally for the supply of labour:

A contract (other than a contract constituting the parties employer and employee) must still satisfy the description of “a contract that is wholly or principally for the labour of the person to whom the payments are made”. This, one would have thought, is not the same thing as “a contract under which the payee performs some labour on behalf of the payer”. Indeed I should have thought that the very statutory wording employed suggests that there are some categories of contract where payments are made in consideration for work done which do not fall within the definition. The High Court's dicta in Neale v Atlas Products (Vic) Pty Ltd points in the same direction. And it would be surprising if the statute caught, for example, a client's payments to his solicitor, a property-owner's payments to his estate agent or a patient's payments to his surgeon. The extremely wide view of the definitions urged on us by counsel for the respondent, although impliedly adopted by Roden J below, and expressly adopted by Lush J in Deputy Commissioner of Taxation v Bolwell (1967) 1 ATR 862 at 872, that the section is brought into play whenever a payment is made under a contract to a payee who performs some labour is, to my mind, erroneous. However, once one takes the view that whilst the statutory definitions are apt to catch payments to some independent contractors but do not extend to all independent contractors, one is faced with the extraordinarily difficult question of where to draw the line. I do not think any formula is capable of enunciation which will answer that question. However, in the present case, when the essence of the contract was to achieve a result and not to do work, and where under the contract the payee was not obliged to do any work at all (although in fact he apparently did a great deal), in my view the payment was not made under a contract of the kind to which the statutory definitions refer.

(Emphasis added.)

287    As his Honour observed, there is no formula that is capable of enunciation, but the extended definition of “salary or wages” did not apply to where the essence of the payment made under the contract was to achieve a result (eg the sale of books) as opposed to the performance of work or supply of labour.

288    The decision of the High Court in Foster related to a similar but different topic. There the issue was whether a putative employer was obliged to comply with the terms of an industrial award in respect of persons that it engaged as agents. Thus, the question before the Court was whether the agents were employees for the purpose of the relevant award. It was in this context that the Court reasoned at 151 that:

…if in practice the company assumes the detailed direction and control of the agents in the daily performance of their work and the agents tacitly accept a position of subordination to authority and to orders and instructions as to the manner in which they carry out their duties, a clause designed to prevent the relation receiving the legal complexion which it truly wears would be ineffectual. But there is a more important clause. Clause 27 provides that the duties of the agent under the agreement may be performed by his clerks or servants or by himself personally and that nothing in the agreement is to prevent him from engaging in any other business or employment while the agency continues. If this clause is in fact allowed any operation it goes a long way to exclude the relation of master and servant. It was not contended for the respondent union that the document considered alone amounted to anything but an independent contract for services: it was readily conceded that its provisions contained no contract of service.

(Emphasis added.)

289    The reasoning here pointed to a factor that would establish the relevant relationship as one of a contract for service as opposed to a contract of service. It does not say that it is only an unlimited power of delegation that would lead to the characterisation of the contract as one for services, let alone whether it could be characterised as one that is wholly or principally for the supply of labour.

290    More recent decisions examining s 12(3) of the SG Act reveal the types of considerations that will be relevant to the determination of whether the impugned contract is one that is wholly or principally for the supply of labour. In Moffet, the relevant contract contained a clause as follows:

3.1    Provision of Dentistry Services

The Practice Principal must provide and or procure with the consent of the Dental Corporation, the provision of the Dentistry Services during the Term at the Premises. The Practice Principal acknowledges that he or she must provide the Dentistry Services personally during the Term.

291    In respect of this clause, Perram and Anderson JJ (with whom Wigney J agreed) reasoned as follows at [87]:

There were two obligations in this clause. The first involved the personal services of Dr Moffet in the form of the provision of the ‘Dentistry Services’, whilst the second involved the procurement by Dr Moffet of those selfsame services. The clause does not literally say this but it is clear enough that the procurement it contemplated was in the form of other health care professionals providing the Dentistry Services. The words ‘and or’ would ordinarily suggest that Dr Moffet could choose which of these two options he was going to pursue but the last sentence of the clause shows that he had no choice about providing his own services. The words ‘and or’ must therefore be construed as meaning ‘or in addition’ so that the option contemplated by cl 3.1 was one where it was left up to Dr Moffet to decide whether he would, in fact, procure other persons to provide the Dentistry Services.

292    Their Honours proceeded to examine a number of other clauses that bore upon the provision of services under the relevant contract, including in relation to the administration of the dental practice. As to these obligations, Perram and Anderson J concluded at [90]-[91]:

What Dr Moffet was therefore to do for Dental Corporation was to provide dentistry, practice management and, when requested, assistance to Dental Corporation to guide it on how it should provide the Administrative Services to him. He was also required to determine appropriate fees and maintain patient records. The effect of cl 3.1 was to require Dr Moffet to do all of these things personally but also to give him the option of procuring other people to do them as well. That option was given flesh by cl 7 which required Dental Corporation to provide Dr Moffet with persons employed by it to assist him in providing the Dentistry Services.

On no view, however, could it be said that the Services Agreement provided itself for the employment of these other health care professionals, as Dental Corporation submitted. Rather, the Services Agreement contemplated third party contracts between these persons and Dental Corporation. In any event, the Services Agreement was not ‘for’ the purpose of obtaining the labour of these other health care professionals to assist Dr Moffet. Their labour was not something which Dental Corporation obtained under the Services Agreement.

(Emphasis added.)

293    Their Honours also examined the relevant fee structure under the relevant contract and concluded that it was tied to the provision of services by Dr Moffet: at [93]-[103].

294    A different result was reached in ZG Operations. There, the majority (Perram and Anderson) concluded that there was no contract as between the natural persons who performed the services and the putative employer: at [31]-[48]. Their Honours were also not satisfied that there was a contract that was wholly or principally for the labour of those persons: at [49]-[63]. Some of the reasons (amongst several others) for this result were as follows (at [58]-[60]):

Fifth, the partnerships were able to delegate the work to a substitute driver with agreement from ZG. As Gordon and Steward JJ observed in Jamsek HCA, the “performance of the contractual obligations was not personal to Mr Jamsek and Mr Whitby”: Jamsek HCA at [103] and cl 2(g) of the 1993 contract extracted in Jamsek FCA at [57].

Sixth, properly characterised, the benefit received by ZG under the contracts was not divided into two separate components, one being labour to drive and the other being the use of a truck. What ZG received was a single integrated benefit being a delivery service to be carried out by the partnership, using the partnership’s resources at the partnership’s risk and fully insured at the partnership expense. As Gageler and Gleeson JJ observed “what was contracted for, provided, and paid for, under the contract was the carriage of goods by means of a truck, not the truck and separately Mr Jamsek as individual to drive it”: Jamsek HCA at [90]; see also at [66] (Kiefel CJ, Keane and Edelman JJ).

Seventh, properly characterised, the benefit received by ZG was a delivery service which included a labour component which was not the “principal benefit”: Moffet at [102] (Perram and Anderson JJ, Wigney J agreeing).

295    In the present case, the terms of the Second Consultancy Agreement must be examined as whole, not just cl 1.2 (upon which the parties focussed). In this regard, the following clauses are relevant:

(a)    the “Background” to the Second Consultancy Agreement states that Whistle Funds appoints the “Consultant” (defined to mean Mr Vize) and that Mr Vize accepted the appointment to provide the Services on the terms and conditions set out in the Agreement, which is indicative of the fact that it was Mr Vize who was personally being appointed to perform the Services and that this was the purpose of the Agreement;

(b)    cl 1.1 reinforces that it is Mr Vize who was being appointed and accepting the appointment to provide the Services;

(c)    as noted above, cl 1.2 provides that Mr Vize must provide himself as the person to provide the Services or “such other person as agreed” with Whistle Funds (with both Mr Vize and the other person defined as the Key Person) and with Whistle Funds reserving to itself an absolute discretion as to whether to agree to that other person delivering the Services;

(d)    cl 1.2 further required that Mr Vize was to procure the Key Person to give the undertakings set out in Schedule 4 to the Agreement, which would not apply to himself but would apply to another Key Person;

(e)    Schedule 2 obliged the Consultant to provide the Key Person to perform the role of Consultant and set out that it was the Consultant then who would provide the consultancy services;

(f)    several clauses confer rights or impose obligations on the Consultant, including cl 1.5 (as to the Consultant not having authority to bind Whistle Funds), cl 1.8 (which provides that Whistle Funds may require the Consultant to temporarily cease performing the Services where considered appropriate), cl 2 (conferring a right to payment of the service fees, performance fees and reimbursements subject to the Consultant complying with various conditions), cl 3 (by which the Consultant gave certain warranties), cll 4.1 to 4.3 (which deal with the Consultant’s obligations of confidence), cl 6 (which imposes obligations on the Consultant in respect of labilities, taxation and insurance) and cl 10 (which imposes obligations on the Consultant in respect of GST and other taxes);

(g)    however, several clauses impose obligations on the Key Person or impose obligations on the Consultant in respect of the Key Person, including cl 1.3 (requiring the Key Person to perform work at such times are reasonably necessary to provide the Services), cl 1.7 (which requires the Consultant to procure the Key Person to comply with all lawful and reasonable directions given concerning the performance of the Services), cl 4.4 (which requires the Consultant to procure the Key Person to comply with the obligations of confidence), cl 5.5 (which requires the Consultant to procure the Key Person to comply with the obligations in respect of intellectual property) and cl 9.8 (which requires the Consultant to procure the Key Person to comply with the post-termination obligations),

(h)    some clauses are applicable to both the Consultant and the Key Person including cl 1.6 (which provides that the Consultant and the Key Person are not prevented from providing services to third parties), cl 5.1 (which address the intellectual property rights and obligations as between Whistle Funds, the Consultant and the Key Person) and cll 9.1-9.4 and 9.6 (which imposes post-termination restrictions on the Consultant and the Key Person);

(i)    Schedule 4 contained the undertaking that was required to be provided by the Consultant but it was expressed as being an undertaking given by Mr Vize.

296    What is evident from an examination of these clauses is that the principal rights and obligations contained in the Second Consultancy Agreement were as between Whistle Funds and Mr Vize. The contract was for the provision of, in essence, professional services and not for the delivery of a result or outcome. However, there was no express or absolute obligation that those professional services be provided personally by Mr Vize as he retained the right to procure another person to do so. Although Whistle Funds reserved to itself an absolute discretion to withhold agreement to persons other than Mr Vize providing those services, the fact is that the Agreement contemplated that such services could be provided by a person other than Mr Vize. Nor did the Agreement make provision for the payment of fees to such other person for the performance of those services. Instead, all fees were to be paid to Mr Vize. It followed that the Agreement contemplated that Mr Vize would receive fees for the work he performed or the work that another person might come to perform. In this respect, the terms of the Second Consultancy Agreement are unlike those considered by the Full Court in Moffet, where Dr Moffet was required to provide the relevant services “personally” though he had the option to engage others to assist him in the provision of those services by him. The distinction here is that Mr Vize could engage another person not just to assist him to provide the services required, but could engage that other person to provide all the services.

297    The question that is raised is whether, on an examination of the terms of the Second Consultancy Agreement as a whole, it can be concluded that from the perspective of Whistle Funds, the purpose of that Agreement was that it was one wholly or principally for the labour of Mr Vize. In answering that question, it is not relevant that Mr Vize in fact wholly performed the services as that would betray the requirement to focus on the terms of the Agreement. I am not satisfied that when the terms of the Second Consultancy Agreement are considered as a whole, it is one wholly or principally for the labour of Mr Vize. It may well have been intended that Mr Vize would principally perform the services, but that is not what the contract says. Nor do I consider that that the discretion that Whistle Funds reserved to itself to withhold agreement to the performance of services by another person leads to a different conclusion. That fact is that the Agreement expressly contemplated that a person other than Mr Vize could perform the services.

298    It follows that I reject this aspect of Mr Vize’s claims. Even if I had been satisfied as to the contrary conclusion, I express the same reservations as those set out above in respect of the retrospective operation of s 116B of the FW Act in respect of acts and omissions on the part of Whistle Funds that occurred prior to 1 January 2024.

9.    ADVERSE ACTION

299    Mr Vize alleges that Whistle Funds took adverse action against him by terminating his employment within the meaning of s 342 of the FW Act because of, or for reasons including, that Mr Vize exercised his workplace right to make complaints and/or inquiries in relation to his employment within the meaning of s 341(1)(c)(ii) of the FW Act: ASOC at [27]-[29]. Accordingly, Mr Vize alleges that Whistle Funds contravened s 340(1)(a)(ii) of the FW Act: ASOC at [30].

300    Relevantly, s 340(1)(a)(ii) of the FW Act provides:

Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

…

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

301    Section 342 of the FW Act outlines the circumstances in which a person takes adverse action against another person. Those circumstances relevantly include when an employer dismisses an employee from their employment: Item 1 of the table in s 342(1) of the FW Act. There is no dispute that the termination of Mr Vize’s engagement on 5 March 2025 would constitute “adverse action” within the meaning of s 342(1) of the FW Act: ROS at [17(a)].

302    Section 341(1) defines “workplace right” as follows:

341 Meaning of workplace right

Meaning of workplace right

(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

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

(Original emphasis retained in bold and/or italics. Emphasis added in bold and underline.)

303    Sections 360 of the FW Act provides that “[f]or the purposes of [Part 3-1 of the FW Act], a person takes action for a particular reason if the reasons for the action include that reason”. Section 361 of the FW Act provides for a reverse onus of proof as follows:

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)    Subsection (1) does not apply in relation to orders for an interim injunction.

304    By reason of the rebuttable presumption contained in s 361, Whistle Funds bears the onus of proving that Mr Vize was not dismissed because he exercised a workplace right to make complaints and/or enquiries in relation to his employment.

9.1    Facts relating to the termination of Mr Vize’s engagement

9.1.1    Events leading to alleged first complaint or inquiry

305    Sometime during 2024, Coles, the major tenant in three separate shopping centres across three separate unit trusts managed by Whistle Funds, was seeking to renegotiate long term extensions to the shopping centre leases (Proposed Coles Leases). The unit trusts in question are known as the Whistle on Banora Unit Trust, the Whistle on Ocean Unit Trust and the Whistle on Casuarina Unit Trust (the Trusts): Vize 1 at [86]. The Proposed Coles Leases were forecast to result in a material uplift in revenue and increase the value of the Trusts: Vize 1 at [87].

306    Relatedly, around late-2024, Mr Silverman asked Mr Vize to prepare fundraising documents, the purpose of which was to raise additional capital by way of equity. Mr Vize’s view was that those fundraising documents should include higher forecast unit values in order to reflect the Proposed Coles Leases: Vize 1 at [88]-[89].

307    On or about 30 October 2024, Mr Vize sent Mr Silverman two separate emails. One was a draft of the fundraising documents for the Trusts. The other was an email with the subject line “Re: AV251024_IGA Lease Proposal 30OCT24.pptx” that related to an IGA lease (IGA Lease Email). The IGA Lease Email was as follows (Silverman 1 at [103]; WS-37):

Hello William,

File and link attached for IGA letter.

Please approve to send.

Regards

Andrew

308    By this latter email, Mr Vize was seeking Mr Silverman’s approval to send the “IGA letter”, not the fundraising documents for the Trusts.

309    On 1 November 2024 at 10:54 am, Mr Silverman responded to the IGA Lease Email, but the subject matter of his email was in fact directed to the fundraising documents for the Trusts. He sent that email to Mr Vize and Ms de Jong (Vize 1 at [92], ARV32; Silverman 1 at [106], WS-37), stating:

Hi Andrew

The Reports are your primary responsibility as MD and were required to be produced ready for dispatch.

I am so disappointed and disheartened because once again.

The investor report is comdeficient (sic)

310    The version of the email chain put into evidence by Mr Vize indicates that at 11:03 am, Mr Vize responded with the following (Vize 1 at ARV32):

Hello William,

Arc you looking at the latest IGA lease proposal?

Attached for reference.

311    A few minutes later at 11:05 am, Mr Silverman sent the following further email which once again related to the fundraising documents for the Trusts, rather than the “IGA lease proposal” referred to by Mr Vize (Vize 1 at [93]; ARV32; Silverman 1 at [107], WS-37):

Hi Andrew

Continued

The investor letter is is (sic) deficient and inappropriate because it does not express our strategy to offer vending unit holders to existing investors. In fact it progresses an agenda not supported by your Board and favours certain investors over others.

I am very concerned.

Please take the weekend to upgrade all the Reports to your best ability and to team on Monday

Kind regards

William

312    At 11:39 am, Mr Vize sent Mr Silverman the following email, copying Ms de Jong (Vize 1 at [96], ARV33; Silverman 1 at [109], WS-38), in a separate email chain with the subject “Investor Letter”:

Hello William,

We, as Manager, have information from Coles (received in Apr24) that will result in a material uplift in the value of the assets. We are also planning to negotiate Sarina IGA and Casuarina Coles rent post refurbishment/expansion.

The investor letter should be withheld until John Biggs (or other independent legal adviser) has briefed us on the fees and prepared the relevant Unitholder meeting notices and approval thresholds for the anticipated related party fees.

By that time (assume 30 days) we will have a reasonable basis for estimating the Unit prices of the 4 assets to ensure one group of Unitholders is not favoured over another.

Regards Andrew

313    At the time, Mr John Biggs of the law firm Mangioni Biggs was the relevant legal adviser to Whistle Funds, including in respect of the various Trusts.

314    At 11:55 am, Mr Silverman responded via email with the words “Andrew please fix the investor letter”: Silverman 1 at [110], WS-38.

315    At 5:44 pm on 1 November 2024, Mr Vize sent the following email to Mr Silverman, copying Ms de Jong (1 November 2024 Email) (Vize 1 at [97], ARV33; Silverman 1 at [111], WS-38):

Hello William,

1 wanted to update you that all documents, including the Investor Letter, have been progressed and are now available in the reports review folder. I'm not declaring it is ready for dispatch right now. It needs careful consideration in a constructive environment.

Additionally, I feel it is important to formally address your claim suggesting that I have been pursuing an agenda not aligned with the WFMC Board, as well as allegedly favoring certain investors over others.

As the Director of the Trusts and Managing Director of WFMC, I take my responsibilities very seriously.

I am deeply concerned by these allegations, which I believe are unfounded and defamatory. Every decision I make is solely in the interest of fulfilling our duties as Directors, in full compliance with the Law and the Trust Documents.

I would like to emphasise the importance of maintaining a respectful and professional tone in all our communications moving forward. The combative tone in recent emails has not been constructive.

Let's work together to ensure that our communications reflect the shared goals and respect that benefit everyone involved as we have managed to do so over the last 13 years together William.

Please let me know if there is anything further that requires clarification.

Regards Andrew

316    As with other aspects of the way Mr Silverman appears to have managed his affairs at or about this time, he clearly appears to have misunderstood what was occurring. Mr Vize had prepared draft fundraising documents for the Trusts and it was his view that they should be reviewed by Mr Biggs prior to dispatch. It is plain that Mr Vize was not sending the relevant fundraising documents, including the investor letter, as ones that were ready for dispatch upon Mr Silverman’s review at that point in time. It was the letter relating to the IGA lease that Mr Vize was seeking Mr Silverman’s approval to send. Mr Vize considered that the fundraising documents should include the uplift in the value of the units that would accrue if the Proposed Coles Leases were accounted for: T.164.21-.25. Mr Silverman appears to have taken the view that the fundraising documents were being sent to him in final form for approval. He appears to have taken that view because it is clear he read the wrong email chain, being the IGA Lease Email which contained the draft letter to IGA that Mr Vize was seeking Mr Silverman's approval to issue.

317    In the 1 November 2024 Email, Mr Vize was quick to identify the true position and made it clear that the fundraising documents were not ready for dispatch. Mr Vize also took issue with the allegation that had been made by Mr Silverman that he was preferring the interests of some investors and stated that he took the discharge of his duties as a director seriously and that advice was being sought from Mr Biggs.

318    The respondents’ position was that irrespective of the correctness of the sequence of emails or whether Mr Silverman was mistaken, it was evident that Mr Silverman had formed an adverse view as to Mr Vize’s performance at that time. Mr Silverman gave evidence to that effect, including in relation to: (a) losses sustained by Whistle Funds in FY23 and forecasted losses in FY24; (b) Mr Vize’s failure in May 2024 to advise Ms Silverman that he was taking leave until the day before he departed; (c) his view that Mr Vize was “unmotivated, disengaged, and indifferent to the liquidity crisis” at Whistle Funds; and (d) his view that the document attached to the IGA Lease Email was deficient: Silverman 1 at [100]-[101] and [104]-[105]. Mr Silverman says he instructed Ms de Jong to engage Mr Martin O’Connor from Addisons Lawyers to discuss the possibility of terminating Mr Vize’s engagement: Silverman 1 at [105]. On 31 October 2024 at 12:40 pm, Ms de Jong sent an email to Mr O’Connor as follows (Silverman 1 at [105], WS-36):

Dear Martin,

We have been kindly referred to you by David Lechem at AGEIS to seek your advice regarding the termination of our Managing Director at Whistle Funds Management Company Pty Limited.

Are you able to meet over videoconference with our Chairman William Silverman (cc’d) and I on Monday next week?

We will provide a brief with more context and related documents prior to meeting.

Regards,

Jen

319    Ms de Jong and Mr O’Connor engaged in further correspondence on 4 November 2025, but privilege was claimed over the relevant documents: Exhibit 5.

320    The respondents relied upon the totality of this evidence to support their contention that when Mr Vize came to be dismissed on the Termination Date, it was not for any proscribed reason (or a reason including a proscribed reason) but because Mr Silverman had already formed a view (rightly or wrongly) that Mr Vize was not performing his duties to his satisfaction.

321    I do not accept the respondents’ contentions reflect the true position. I am prepared to accept that Mr Silverman was not satisfied with Mr Vize’s performance in or about late October and early November 2024 and that this prompted him, at least in part, to consider whether to terminate Mr Vize’s engagement, including by asking for legal advice to be obtained on that topic. However, the fact is that Mr Vize’s engagement was not terminated at that time. That is an important fact given the way the respondents pleaded their case and the content of the “Termination Letter” (as addressed below).

322    During his cross-examination, Mr Vize was pressed at length in support of the case theory advanced by the respondents that Mr Silverman wished to terminate his engagement in late October 2024. It was put to him in various ways that, irrespective as to who was right or wrong, there was clearly a disagreement between Mr Silverman and Mr Vize about the issuing of the fundraising documents and Mr Silverman’s belief that Mr Vize was not acting in the best interests of all investors. I regarded that line of cross-examination as being beside the point because Mr Vize’s state of mind is not of relevance (or of only marginal relevance) to the question raised by s 361 of the FW Act. Further, this line of cross-examination only reinforced the misunderstanding that Mr Silverman was labouring under at the time and also reinforced the fact that Mr Silverman had a tendency to react emotively and with anger when he was called to account by Mr Vize.

323    In any event, as I explain below, whilst these matters might have some relevance by way of background, they did not form any part of the pleaded reason for the termination of Mr Vize's engagement on the Termination Date. Nor were they the matters expressed in the termination letter sent from Mr Silverman to Mr Vize on 5 March 2025 (Termination Letter) (see [347] below) as forming the reason for the decision to terminate. What the evidence does, however, disclose is Mr Silverman’s propensity to overlook matters of detail.

9.1.2    Events leading to alleged second complaint or inquiry

324    There was a dispute between the parties as to whether Mr Vize was attending meetings with investors and unit holders, or prospective investors, in a “clandestine” manner. As explained below, this appears to have become a source of an allegation that Mr Silverman levelled at Mr Vize that he was preferring the interests of some investors over others. As further explained below, I find no evidentiary support for Mr Silverman’s serious allegations, which appear to have been the product of his unwillingness to consider the details as to what was occurring or engage with Mr Vize instead of making ad hoc and serious allegations against him.

325    There is considerable background to the events in question.

326    Some years earlier, on 7 November 2022, Mr Biggs had provided legal advice to Mr Silverman and Mr Vize to the effect that, following an altercation between Mr Silverman and representatives of various unit holders, Mr Silverman should refrain from contacting those representatives, namely, members of the well-known Fairfax family and their representatives, including Mr Patrick Joyce, Mr Nick Fairfax and Mr David Gonski AC and others, on the basis that doing so could result in an apprehended violence order being taken out against him, which may put his Australian Financial Services Licence at risk and prejudice the interests of Whistle Funds. It was on this basis that Mr Biggs advised Mr Silverman and Mr Vize that it should be Mr Vize or another representative of Whistle Funds that attended to meetings and otherwise dealt with those unit holders and their representatives (Biggs Advice): Vize 1 at ARV47.

327    Mr Silverman acknowledged that he received the Biggs Advice but rejected it: T234.7-.15. However, Mr Silverman did not cavil with the underlying events involving himself and the Fairfax family or their representatives that had led to the Biggs Advice being given. Mr Silverman took the view (backing his own judgment and experience) that these persons would in time deal with him and maintained that they did: T234.12-.15.

328    The evidence discloses that on 10 September 2024, Mr Vize sent an email to Mr Silverman which stated (Vize 1 at [70], ARV46):

Hello William,

Please see attached responses received since last update on 5Sep24.

During this time I have had conversations with David White, Patrick Joyce, Chris Knoblanche, Graham Levy, Greg Duncan.

Most of the conversations are around timing and next steps.

Michael Rennie has expressed interest in being taken out of Brunswick. Please approve me to engage a valuer as first step to streamlining ownership of Brunswick.

I am meeting John Symond on Thursday to provide an update.

Regards

Andrew

329    As is readily evident from this email, Mr Vize was meeting with investors or prospective investors in the absence of Mr Silverman. The email indicates Mr Silverman was aware of this fact, which he accepted in his evidence before me. It is also plain that Mr Silverman took no issue with Mr Vize attending these meetings in his absence. Mr Silverman also admitted that he was aware that Mr Vize would be attending a meeting with another well-known person, Mr John Symonds AM, an investor, in his absence: T249.29-.40. Despite this evidence, Mr Silverman claimed that Mr Vize was not sanctioned or authorised to engage in these activities (ie to attend meetings in his absence) and it was contrary to “company policy”: T249.10-.13. Mr Silverman provided no detail as to the relevant company policy. In any event, Mr Silverman accepted that he never sent any email or other written document to Mr Vize expressing this apparent view held by him. Mr Silverman claimed for the first time in his testimonial evidence before me that these activities on the part of Mr Vize were seen by him as acts of disloyalty and that there was a video conference of some sort with Mr Vize and others discussing these matters, but nothing was said in evidence of substance about what was discussed: see T248.12-.27.

330    That same month, Mr Silverman sent an email dated 29 September 2024 to Mr Vize and others in which, amongst other things, he said “I look forward to seeing you each take even more responsibility and initiative at Whistle and to many more years working together”: Vize 2 at [66], ARV42. Mr Silverman accepted in cross-examination that at this time he was satisfied with Mr Vize’s performance and that is unassailably the case given the documentary record: see eg T248.39-249.17. It belies his now reconstructed assertion that he considered Mr Vize was being disloyal.

331    Associated with the above matters is Mr Silverman’s evidence that Whistle Funds had been performing poorly from a financial perspective. Mr Silverman claimed that after Whistle Funds sustained losses in FY23 and was forecast to sustain losses in FY24, he became “concerned with Mr Vize’s ability to service” Whistle Funds: Silverman 1 at [97]. Even if that was the case, it is apparent from the documentary records, including the email of 29 September 2024, that Mr Silverman was nevertheless satisfied with Mr Vize’s performance and was looking forward to a continued working relationship with him.

332    Every six months, Whistle Funds was required to prepare reports to the unit holders in the Trusts that Whistle Funds Managed: Vize 1 at [99]. Mr Vize was tasked with preparing those reports: Vize 1 at [99]; Silverman 1 at [118]. There is no dispute that the reports for the six-month period ending December 2024 were due to be sent to unit holders on 28 February 2025 but by early March 2025, the reports had still not been finalised: Vize 1 at [101]; Silverman 1 at [119(a)].

333    At 8:47 am on 3 March 2025, Mr Silverman sent an email to Mr Vize, amongst others, with the subject “ALL REPORTS AMENDED PLEASE ADD BRUNS”, and no contents in the body of the email. At 2:21 pm that same day, Ms de Jong responded in the same chain indicating that the “reports” were attached and that “[w]e are ready to send today, let us know”: Vize 1 at ARV34. At 5:18 pm, Mr Vize sent the following email in the same chain:

Hello William,

Please consider postponing the Casuarina extension resolution until closer to August 22, 2025, by which time we should have greater clarity regarding the Coles rental proposal.

Regards Andrew

334    Mr Silverman sent several back-to-back emails in response, stating, “Thanks what reasoning?”, “I don’t understand?”, “Discuss” and “I’ll final review this eve sending Tuesday”. At 6:05 pm, he sent the following more substantive response:

From Andrew

Best chance of success for a 2 year extension will be when we have the Coles rental offer to present. We have until 22Aug25 to sort that out with Coles. Im also fine with sending Casuarina as is with the resolution.

(Original emphasis.)

335    It is not clear why the words “From Andrew” appear at the top of this email but it was common ground that the email was nevertheless sent by Mr Silverman.

336    At 5:58 am on 4 March 2024, Mr Silverman sent a further email in the chain, stating, “Good morning Andrew have we had communication any unit holders?”. At 6:12 am that same day, he sent a follow-up email asking “have we included construction loan repayment on sale add interest irr?”: Vize 1 at [104], ARV34. At 6:56 am, Mr Vize answered “Yes, it is included at Casuarina”: Vize 1 at [105], ARV34. Later that morning, at 7:23 am, Mr Silverman responded as follows (Vize 1 at [106], ARV34; Silverman 1 at [120], WS-39):

Andrew you must keep me fully informed include sending me notes of any all conversations.

I will attend meetings with any all unit holders myself and prefer any questions in writing.

Please accept confirm this.

You are not to discuss with investors without my presence under any and all circumstances.

Best William

337    Shortly thereafter, Mr Silverman sent several follow-up emails, stating, “This includes all unit holders”, “How is the construction funding included in Irr?” and “Is it deducted from net proceeds?”. Mr Vize responded “Yes William, that’s correct” (Vize 1 at [108], ARV34). At 7:52 am, Mr Silverman sent a further email as follows (Vize 1 at [109], ARV34; Silverman 1 at [121], WS-39):

Please ensure I get forwarded all unit holder contacts communications.

I will definitely handle all Fairfax and Simons etc directly myself

Thank you

338    The word “Irr” is a reference to the “Internal Rate of Return calculation”: T172.30.

339    Mr Silverman maintained that he wanted to handle the reports of Marinya Capital, a major investor of the Casuarina Unit Trust and the investing entity of the Fairfax family, himself on the basis that he was “concerned with the quality and integrity of Mr Vize’s services”: Silverman 1 at [121].

340    At 10:34 am on 4 March 2025, Mr Vize sent the following email to Mr Silverman (4 March 2025 Email) (Vize 1 at [110], ARV34; Silverman 1 at [122], WS-40)):

Hello William,

1 understand the directive from you this morning. It places me in a very difficult / impossible position. Please let me know how we can make that work in light of the attached understanding which I am also operating under.

I'm also reiterating that at no time have I sought to favour certain investors over others and my response to you on that allegation is attached.

Everything I do is always guided by what is best for you and Whistle. I feel like that is being questioned. In addition, there needs to be a settlement on the 10% offer made in Apr21 and my acceptance of the role that I have carried out over the last 4 years, (attached). We delayed the implementation during your property settlement, and I have always trusted the fully franked dividends paid out over the last 4 years and in the future would be equalised 90/10.

Regards

Andrew

341    This email attached the following four documents:

(a)    “Whistle: Advice”, being the Biggs Advice referred to at [325] above;

(b)    “Witness Statement of Andrew Vize – 3 November 2022v5.docx”, being a witness statement regarding the events referred to in the Biggs Advice;

(c)    “Fw: Investor Letter”; and

(d)    “WFMC MD Offer Andrew Vize 7APR21.pdf”.

342    The “understanding” to which Mr Vize referred in his above email was a reference to the effect of the Biggs Advice that Mr Silverman was to have no contact with the Fairfax family or their representatives. Mr Vize therefore sought clarification as to how Mr Silverman’s “directive” to him would work in circumstances where Mr Silverman’s attendance at meetings and handling of the Fairfax family’s affairs would prejudice the interests of Whistle Funds.

343    Mr Silverman stated that he regarded Mr Vize’s email as “hostile and litigious”: T216.34-.35. Mr Silverman admitted that he did not seek to clarify Mr Vize’s email with him on the basis that he believed he had “lost the plot”, it was “too late”, and there was no “misunderstanding” on his part as there had been a “disloyal act” on the part of Mr Vize: T246.20-.25; T247.17-.22. Mr Silverman admitted that he became annoyed that Mr Vize had raised the Biggs Advice in the above email and was concerned that Mr Vize was “undermining [the] business” by making complaints about Mr Silverman’s direction in his email of 4 March 2025 at 7:23 am (see [336] above): T234.17-.24. As I return to below, Mr Silverman did not explain any further why Mr Vize’s email was disloyal or seen by him to be “undermining the business”.

344    At 10:55 am on 5 March 2025, Mr Vize sent Mr Silverman the below follow-up email which more clearly articulated his position (5 March 2025 Email) (Vize 1 at [115], ARV35; Silverman 1 at [124], WS-41):

Hello William,

Before distributing any reports, I am seeking clarification on the points raised in my email to you yesterday, including those related to dividend equalization.

As it currently stands, my understanding is that I am only authorized to respond with: "I am unable to answer that. Please submit your query in writing, and William will be in touch to arrange a meeting."

This approach is not satisfactory and appears to contradict the understanding you have with Marinya regarding non-contact.

I must emphasise that this situation makes it extremely challenging for me to effectively fulfill my role.

Regards

Andrew

345    Mr Silverman did not respond to this email and stated during his examination-in-chief that he thought Mr Vize was being “hysterical”: T218.18. Again, Mr Silverman did not explain any further why he considered Mr Vize was being “hysterical”.

9.1.3    Termination of Mr Vize’s engagement

346    At 7:28 am on 5 March 2025, Mr Silverman sent an email to Bobby Tantisaridchai, who assists Whistle Funds with its information technology affairs, and Ms de Jong saying, “[p]lease may I access Andrew pc early today on byron pc as I intend to terminate cob today”. In effect, Mr Silverman was requesting that he be granted remote access to Mr Vize’s computer from his home in Byron Bay. Bobby Tantisaridchai confirmed that all emails sent to Mr Vize would be forwarded to Mr Silverman. Mr Silverman stated that Mr Vize should continue to receive emails until 6:00 pm that day and that he would like access to Mr Vize’s “email and history”. Bobby Tantisaridchai confirmed that Mr Silverman had been granted access and that he would revoke Mr Vize’s access at 6:00 pm: Exhibit 4.

347    At 8:17 pm on 5 March 2025, Mr Silverman sent Mr Vize the Termination Letter via email terminating the relationship between him and Whistle Funds: Vize 1 at [119], ARV36; Silverman 1 at [128], WS-42. That correspondence is as follows:

Dear Andrew

Thank you for providing advisory services through Advize Property Consulting, most recently in the role of Managing Director.

Your appointment as Managing Director took effect on 7th April 21.

Recent emails indicate you agree, and which demonstrate our working relationship has become unworkable. Therefore, it is better we terminate the relationship with Advize Property Consulting. This letter is notice of termination with immediate effect.

We will make a payment to you in lieu of notice equal to one months' service fees.

I also remind you of your continuing obligations with respect to WFMC's confidential information and intellectual property.

We specifically insist you have no further contact with WFMC past or current investors.

Please return all property, materials, and documents, including any passwords and access codes of WFMC in your possession as soon as possible.

Thank you for your contribution to WFMC over the years and for your support especially in difficult times.

With kind regards

Yours sincerely

…

William Silverman

348    Mr Vize gave evidence that following the termination of Mr Vize’s engagement, Whistle Funds paid one month’s service fees, being $32,083.33 (including GST) as “notice in lieu”, as well as a pro rata amount reflecting fees incurred up to 5 March 2025, in response to an invoice issued by Advize (Invoice number: 0525-001): Silverman 1 at [129], WS-43.

9.2    First alleged exercise of a workplace right

349    Mr Vize alleges that by the 1 November 2024 Email, he made the following complaints (1 November 2024 Complaint and Inquiry) (ASOC at [21]):

a.    complained that he was deeply concerned by Mr Silverman’s allegations;

b.    asserted that he took his duties as Managing Director very seriously;

c.    rejected the allegation;

d.    asserted that it was important that Mr Silverman maintain a respectful and professional tone in all communications; and

e.    offered to work with Mr Silverman to ensure that their communications reflected the shared goals of Whistle Funds, (together, the 1 November Complaints).

350    The respondents accepted that the complaints alleged in the ASOC at [21(a) and (d)] involved the exercise of a workplace right by Mr Vize in that they were complaints made by him (that he was able to make) in relation to his employment within the meaning of the FW Act, but submitted that the other matters pleaded in the ASOC at [21] did not constitute a complaint or inquiry for the purpose of s 341(1)(c)(ii) of the FW Act.

351    Mr Vize submitted that in light of all the context and “circumstances” that preceded the 1 November 2024 Email (including the accusations made by Mr Silverman that Mr Vize was preferring the interests of particular investors and Mr Silverman’s bullying conduct which included disrespectful, defamatory and unprofessional behaviour towards Mr Vize), the entirety of that Email gave rise to a complaint or inquiry that he was able to make in relation to his employment.

352    I am satisfied that the 1 November 2024 Complaint and Inquiry involved the exercise of a “workplace right” within the meaning of s 341(1)(c)(ii) of the FW Act. It is to be recalled that the text of s 341 defines the meaning of the expression “workplace right”. Specifically, s 341(1)(c)(ii) defines such a workplace right to include the instance where a person “is able to” make a “complaint or inquiry” in relation to their employment. There was no issue raised by the respondents as to whether Mr Vize was “able to” make a complaint or inquiry in relation to his employment: see, generally, Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27; 278 CLR 571 at [36] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), citing Cummins South Pacific v Keenan [2020] FCAFC 204; 281 FCR 421 at [34] (Bromberg J); Alam v National Australia Bank Ltd [2021] FCAFC 178; 288 FCR 301 at [85] (White, O’Callaghan and Colvin JJ)).

353    As to the meaning of the words “complaint” for the purpose of s 341(1)(c)(ii) of the FW Act, in Alam, the Full Court stated at [59]–[60]:

In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]–[581]; Cummins South Pacific at [13] per Dodds-Streeton J. Her Honour continued, at [626]–[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347 at [36]–[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.

(Emphasis added.)

354    As to the meaning of the word “inquiry” in s 341(1)(c)(ii) of the FW Act, it has been held that an inquiry may involve:

(e)    an investigation or an examination made for the purposes of acquiring knowledge or information: Flageul v WeDrive Pty Ltd [2020] FCA 1666 at [248] (Steward J); and

(f)    a request for information or the posing of a question by an employee in relation to his or her employment: PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; 274 FCR 225 at [136]–[138] (Snaden J).

355    In my view, when considered in its proper context and all of the relevant circumstances at the time, the 1 November 2024 Email clearly involved in substance the exercise by Mr Vize of a right to complain or make an inquiry in relation to his employment, though those specific words were not used.

356    In the lead up to the 1 November 2024 Email, Mr Silverman had sent two emails in which he told Mr Vize that it was the latter’s responsibility to prepare the relevant fundraising documents for dispatch, that Mr Silverman was disappointed and disheartened that these documents were deficient and inappropriate, the documents progressed an agenda not supported by the Board and favoured certain investors over others, and Mr Silverman was very concerned. Apart from taking issue with the quality of the documents, Mr Silverman was levelling a serious allegation that Mr Vize was promoting an agenda that was not authorised and which preferred some investors over others.

357    When looked at in substance, by the 1 November 2024 Email, Mr Vize was clearly complaining to Mr Silverman about the serious allegations that Mr Silverman had made. Mr Vize communicated in clear terms that he regarded those allegations as unfounded and defamatory. He was clearly aggrieved and was not only denying those allegations, but also seeking Mr Silverman’s consideration of the grievance he was raising. He was not merely seeking assistance.

358    Further, when read as a whole, by the 1 November 2024 Email, Mr Vize was also complaining to Mr Silverman about what he considered to be the necessity for a respectful and professional tone, as well as the necessity to work constructively together in light of the “combative tone” of the then recent communications from Mr Silverman. I am satisfied that in the relevant context, this amounted to the ventilation of a grievance about the manner in which Mr Silverman had been behaving at that time and Mr Vize was seeking that it be addressed. The same aspects of the Email are also to be characterised as an inquiry of Mr Silverman whether these matters would be addressed.

359    The respondents did not make clear why certain aspects of the 1 November 2024 Email did not constitute a complaint or inquiry and appear to have parsed the minutiae of that email in an acontextual way.

360    Accordingly, I am satisfied that Mr Vize exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act by sending the 1 November 2024 Email.

9.3    Second alleged exercise of a workplace right

361    Mr Vize’s pleaded case is that by the 4 March 2025 Email, he (ASOC at [25]):

a.    asserted that the Silverman Direction placed him in a very difficult/impossible position;

b.    inquired about the discharge of his duties by asking how the Silverman Direction would work in practice as Mr Silverman was restricted from dealing with certain clients directly;

c.    reiterated that he had not sought to favour certain investors over others; and

d.    complained and inquired about the 10% equity stake in Whistle Funds which had been proposed when Mr Vize was promoted (as pleaded in paragraph 11 above), (together, the 4 March Complaint and Inquiry).

(4 March 2025 Complaint and Inquiry)

362    The respondents accepted that the matters pleaded in the ASOC at [25(b), (c) and (d)] gave rise to the exercise of a workplace right by Mr Vize in that by sending the 4 March 2025 Email, he was able to, and did, exercise a right to complain or make inquiries in relation to his employment within the meaning of s 341(1)(c)(ii) of the FW Act, but denied that the matter pleaded in the ASOC at [25(a)] constituted a complaint or inquiry. The respondents submitted that the complaint or inquiry alleged at [25(a)] of the ASOC was merely an assertion and did not give rise to a complaint or inquiry for the purpose of s 341(1)(c)(ii) of the FW Act.

363    Again, I do not consider it necessary to parse the email into constituent parts. As pleaded, it is the totality of the email that is said to have given rise to the exercise of the relevant workplace right. When looked at in the context of the emails that Mr Silverman had sent at that time, the 4 March 2025 Email was clearly conveying that Mr Vize was aggrieved about the direction he had been given that Mr Silverman would be handling discussions with investors including the Fairfax family and the insinuation that Mr Vize had been preferring the interests of certain investors. He was seeking action by way of Mr Silverman addressing how he was to proceed, including in discharging his duties as the Managing Director in light of the Biggs Advice, the effect of which was that Mr Silverman’s involvement in discussions with the Fairfax family would be prejudicial to Whistle Funds’ interests. The same conduct is also to be characterised as an inquiry. Moreover, Mr Vize was also expressing a grievance in relation to his claimed entitlement to equity, which was referred to in the Offer Letter, and making an inquiry about the settlement of that matter. In doing so, Mr Vize was not merely making a request. He was seeking action in respect of these matters.

364    Accordingly, I am satisfied that Mr Vize exercised a workplace right within the meaning of s 341(1)(c)(ii) of the FW Act by sending the 4 March 2025 Email.

9.4    Reasons for dismissal

365    Having established that Mr Vize exercised his workplace right to make complaints and/or inquiries with respect to the 1 November 2024 Complaint and Inquiry and the 4 March 2025 Complaint and Inquiry, and that Whistle Funds took adverse action against Mr Vize by terminating his employment, the evidential onus fell to Whistle Funds to rebut the presumption contained in s 361 of the FW Act.

366    In its Defence, Whistle Funds pleaded that Mr Vize’s engagement was terminated “solely for the reason set out in the letter from Mr William Silverman to [Mr Vize] dated 5 March 2025” (emphasis added), being that “[r]ecent emails indicate you agree, and which demonstrate our working relationship has become unworkable”. In other words, Whistle Funds’ pleaded case (and that of Mr Silverman) was that the only reason for the termination was that set out in the Termination Letter.

367    There was no dispute that it was Mr Silverman who made the decision to terminate Mr Vize’s engagement. The question raised by the parties’ pleadings is whether: (a) Whistle Funds has rebutted the presumption created by s 361 of the FW Act, and (b) if so, whether a substantial and operative reason for the termination of Mr Vize’s engagement (though not the exclusive reason) was his exercise of workplace rights by reason of the 1 November 2024 Complaint and Inquiry and the 4 March 2025 Complaint and Inquiry. During closing submissions, Counsel for Mr Vize submitted that, on the strength of the concessions made by Mr Silverman in his testimonial evidence, it was not necessary to rely upon the 1 November 2024 Complaint and Inquiry in this respect because it was clear that Whistle Funds had not discharged its onus to rebut the presumption created by s 361 of the FW Act and, in any event, Mr Silverman had conceded that a substantial and operative reason for the termination was that Mr Vize had exercised a workplace right by making the 4 March 2025 Complaint and Inquiry.

368    Whistle Funds submitted that the true and sole reason for the termination was that Mr Vize’s then recent emails had led to Mr Silverman forming the view that the relationship between them was unworkable. In this respect, it was said that it was central to Mr Silverman’s state of mind that:

(a)    Mr Silverman had become concerned about Mr Vize’s performance from in or about March 2024 due to, amongst other things, the poor financial performance of Whistle Funds;

(b)    Mr Silverman initially wanted to terminate Mr Vize’s engagement in late October 2024, and engaged lawyers to provide advice in relation to the same;

(c)    despite electing to give Mr Vize a second chance, Mr Vize’s performance did not improve to Mr Silverman’s satisfaction; and

(d)    in light of the emails that Mr Vize had sent preceding the Termination Letter, Mr Silverman felt that he had “no choice” but to terminate Mr Vize’s engagement in that the relationship between them was untenable.

369    In relation to the last point, Whistle Funds submitted that there was a distinction between, on the one hand, Mr Silverman making a decision because of the fact that (or for reasons including the fact that) Mr Vize had exercised a workplace right to complain about his conduct and, on the other hand, Mr Silverman making a decision because he had formed the view that the consequence of Mr Vize acting the way he did made the relationship unworkable and untenable.

370    I am not satisfied that Whistle Funds has discharged its onus to rebut the presumption contained in s 361 of the FW Act and, in fact, I am satisfied that a substantial and operative reason for Mr Silverman making the decision to terminate Mr Vize’s employment was that Mr Vize had exercised a workplace right by the 4 March 2025 Email. Before addressing my reasons for so concluding, it is necessary to set out the applicable principles, which are well settled.

371    The relevant question as to whether an employer has taken adverse action because of an exercise of a workplace right is a question of fact. The Court is concerned to determine the actual reason or reasons which motivated the decision maker or decision makers at the time the adverse action was taken: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 at [19] (French CJ and Kiefel J) and [85] (Gageler J); see also Board of the Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 at [42] (French CJ and Crennan J), [102] – [104] and [127] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v Endeavour Coal [2015] FCAFC 76; 250 IR 422 at [32] (Jessup J) and [75] (Perram J). The test does not involve any objective element as an inquiry into the “objective” reasons risks the substitution by the Court of its view of the matter for the finding it must make upon an issue of fact: Barclay at [121] (Gummow and Hayne JJ); BHP Coal at [9] (French CJ and Kiefel J).

372    Nor is the Court required to determine whether some prohibited reason had subconsciously influenced the relevant decision maker. Such an enquiry should not be made: Barclay at [54] (French CJ and Crennan J), at [124] and [134] (Gummow and Hayne JJ), at [144] – [147] (Heydon J). The question is one as to the subjective reasons for the action of the decision-maker: Endeavour Coal at [91] (Perram J); Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [101] (Tracey, Reeves and Bromwich JJ).

373    A respondent will often seek to rebut the statutory presumption in s 361(1) of the FW Act by calling evidence from the relevant “decision-maker(s)” as to the reason(s) for taking the action and denying that it was done so for reasons including the proscribed reason(s). However, whether the reverse onus is discharged must be considered not merely by reference to the testimony of the purported decision-maker (or decision-makers), but by reference to all of the facts and circumstances relevant to whether the alleged reason was a reason which actuated the action in question. In Barclay at [44]-[45], French CJ and Crennan J (with whom Gummow and Hayne JJ agreed at [71]) stated:

… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

374    Mere knowledge of the prohibited reason of itself is not enough. It is not necessary for the decision maker to establish that the reason for the adverse action was entirely dissociated from the relevant protected workplace right. If an employee who has (or has exercised) a workplace right has adverse action taken against him or her, there is no additional presumption that the workplace right must have had something to do with the adverse action: see Barclay at [60] – [61] (French CJ and Crennan J); BHP Coal at [20] – [21] (French CJ and Kiefel J); see also General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612 (Gibbs J).

375    The Court must be satisfied (on the balance of probabilities) that the prohibited reason was a “substantial and operative” reason for the decision maker acting as he or she did, in the sense of being determinative, and therefore material to the outcome of his or her reasoning processes: Barclay at [104], [126]-[128] (Gummow and Hayne JJ); Endeavour Coal at [91] (Perram J).

376    With these principles in mind, it is necessary to explain why I reject Whistle Funds’ contentions.

377    As noted above, by their Defence, the respondents claimed that the sole reason for the termination was that which was contained in the Termination Letter. During his examination-in-chief, Mr Silverman was taken to paragraphs [21] and [25] of the ASOC and denied that the matters there pleaded formed part of his reasons for terminating Mr Vize’s engagement: see T219.38-220.32. Whistle Funds submitted that I should accept those denials and that they were sufficient to dispose of the case.

378    I disagree. I do not accept Mr Silverman’s denials in the face of the other evidence he gave and my assessment of the entirety of the evidence.

379    It will be recalled that the Termination Letter stated that:

Recent emails indicate you agree, and which demonstrate our working relationship has become unworkable. Therefore, it is better we terminate the relationship with Advize Property Consulting. This letter is notice of termination with immediate effect

380    When asked during the course of his examination-in-chief to identify the particular emails to which he was referring, Mr Silverman pointed to the 4 March 2025 Email (see [338] above) and the 5 March 2025 Email (see [344] above): T212.1-.16, T215.33-.35 and T217.1-.8. Mr Silverman stated that he considered that his working relationship with Mr Vize had become unworkable on the basis that he regarded the 4 March 2025 Email as being “hostile and litigious” and the 5 March 2025 Email as being “almost like a form of blackmail”: T216.32-.35; 217.10-.12. As mentioned above, Mr Silverman also regarded one or both of these emails as being disloyal, hysterical and reflecting that Mr Vize had “lost the plot”. However, as also noted above, Mr Silverman did not explain why these emails showed that Mr Vize was being disloyal, hysterical and had “lost the plot” (other than as I set out below).

381    Mr Silverman confirmed that he regarded the entirety of the 4 March 2025 Email as “litigious”: T240.10-.18. He also gave evidence that when he wrote in Mr Vize’s termination letter that the working relationship had become unworkable, one of the things he was referring to was Mr Vize’s statement in the 4 March 2025 Email that Mr Silverman’s “directive” placed him “in a very difficult / impossible position”: T233.19-.35. Mr Silverman considered this email from Mr Vize to be “highly disloyal and out of character”: T216.30.

382    Mr Silverman did not explain or further elaborate upon why he considered that the 4 March 2025 Email was an act of disloyalty, why he considered Mr Vize was being hysterical or why he believed Mr Vize had lost the plot. His evidence to this effect was based on the fact that Mr Vize had said that Mr Silverman’s directive had placed him in a “very difficult” or “impossible” position. In my view, this was tantamount to Mr Silverman accepting that the very fact that Mr Vize had complained about the difficulty of the directive or had sought to inquire about how it would work was an act of disloyalty or an act by which Mr Vize was being hysterical or had lost the plot. Separately, Mr Vize seeking a resolution of what he regarded as an entitlement to 10% equity was another act by which Mr Silverman regarded Mr Vize was being hysterical, disloyal, litigious and losing the plot.

383    Consistent with this, and critically, Mr Silverman gave evidence that he “absolutely” got annoyed about matters in the 4 March 2025 Email, and he got annoyed because Mr Vize was making complaints about Mr Silverman’s directive: T234.19-26. Given the criticality of this evidence, it is convenient to set out the relevant exchange from his cross-examination in this respect (see T234.7-.24):

You understood, didn’t you, that what Mr Vize was referring to was the advice that had been given by Mr Biggs which included a recommendation that you strictly comply with - - -?---I rejected his advice, and I subsequently have not worked with Mr Biggs.

And when you say you rejected his advice, was that because you took the view that Mr Biggs’ advice was incorrect?---No, I took the view that we were in business and that the Fairfax would come and deal with me, as they did, of their own accord, so that it was unnecessary. It was an argument which took place, and it – it blew over.

And so you got annoyed, did you, that Mr Vize was raising this advice in his email?---Absolutely.

You were annoyed that Mr Vize was complaining that your directive would contravene that advice; correct?---I was not annoyed. I was – in that situation, I was concerned that Mr Vize was undermining our business.

By making complaints about your directive; is that right?---Correct.

(Emphasis added.)

384    The following further exchange in cross-examination is also critical (see T250.1-.22):

Now, when we get to March 2025, where you receive an email from Mr Vize indicating that the directive from you had placed him in a “very difficult, impossible position”, you didn’t seek to clarify that with him; correct?---No, I took it on face value.

All right. You thought, “Well, he’s complaining about my management of him, and that’s unacceptable”; correct?---You just said that, I didn’t.

Was that what was going through your mind?---What is the question, please?

That he was complaining about your direction, and you thought that was unacceptable?---Yes.

And that’s why you wanted to terminate his – his engagement; correct?---Our relationship had become unworkable.

Because of him complaining about your direction; correct?---Because he seemed to have his own agenda.

And he was complaining about your direction; correct?---I didn’t see it as a complaint because I had my rights within the business to manage it in whatever way is appropriate.

(Emphasis added.)

385    And, a final exchange occurred as follows (at T251.37-252.9):

The reason you Terminated Mr Vize’s engagement was because the matters he raised in his email on 4 March 2025 at page 1063 made you angry. Do you accept that?---Absolutely not. The decision was a cold, clear decision and it had been made really prior to this – effectively prior to this letter.

What, prior to 4 March?---Yes. It was - - -

So you had already made the decision prior to 4 March, had you?---I would say on and around 4 March, yes.

Before you read the email?---This is ..... before I read the email, yes.

Before you read the email?---Yes. Final decision was made on the 5th. But in the days leading up to it, and the months leading up to it, I had become convinced that Mr Vize was no longer suitable for the engagement due to the quality of his work and the effort that he was putting in. I felt we would be better off without him.

Mr Silverman, you are making your evidence up on the spot, aren’t you?---I’ve spent months preparing this. Months.

386    There are a number of matters to be drawn from this evidence.

387    First, Mr Silverman conceded that he was “annoyed” about the contents of the 4 March 2025 Email, especially Mr Vize raising the Biggs Advice. He then sought to retract this by saying he was not annoyed but was concerned that Mr Vize was undermining the business. This evidence was evasive and inconsistent.

388    Second, Mr Silverman conceded that the reason why he believed Mr Vize was undermining the business was because he had made complaints about his directive. In my view, this reflects the true position and was an obvious concession for Mr Silverman to have made given my assessment of the whole of the evidence. As with his other responses (to the effect that Mr Vize was being disloyal and hysterical), Mr Silverman did not explain why or how Mr Vize was undermining the business other than by complaining about the directive he had given and inquiring about how it would work given the Biggs Advice. There was nothing public about the email and no one else was copied. The only undermining was that of Mr Silverman by the complaint made about his directive and behaviour.

389    Third, although Mr Silverman did not initially accept that he viewed the 4 March 2025 Email as being unacceptable because it was complaining about his management of Mr Vize, he conceded that he did in fact consider it unacceptable that Mr Vize was complaining about his direction. Again, despite his initial reluctance to accept the proposition, it was an obvious concession for him to have made.

390    Fourth, although the Defence and Mr Silverman’s evidence in chief had advanced the case that the reasons for the termination were those set out in the Termination Letter, being Mr Vize’s emails sent on 4 and 5 March 2025, Mr Silverman gave evidence that he had in fact made the decision days, if not months beforehand. This evidence was inconsistent.

391    The difficulty for Whistle Funds’ case, and the submissions advanced in support of it, is that Mr Silverman’s evidence that he had made the decision days or months before the Termination Letter was directly at odds with the pleaded case advanced by Whistle Funds. The pleaded case was that the reason for the termination was solely as set out in the Termination Letter, which referred only to “[r]ecent emails”. That was also consistent with Mr Silverman’s evidence in chief that those emails were the ones sent by Mr Vize on 4 and 5 March 2025. However, if Mr Silverman is to be believed about these matters, it means that the actual reasons for termination involved other matters that pre-dated the reliance on the so-called “[r]ecent emails”. It may well be correct that Mr Silverman had formed a perception and view about Mr Vize’s performance (based on his incorrect understanding of events in October and November 2024) well before he made the decision to terminate on 5 March 2025. In any event, that leaves me in the position that I cannot be satisfied that Whistle Funds discharged its onus to rebut the presumption contained in s 361 of the FW Act to establish its pleaded case in this respect as it failed to address all the reasons for the termination.

392    In any event, based on the concessions that Mr Silverman made in his cross-examination, I am satisfied that a substantial and operative reason for the termination was the fact that Mr Vize had made a complaint to Mr Silverman, including about his directive and seeking to re-agitate an issue relating to the claimed entitlement to 10% equity. I reject Mr Silverman’s denials to the contrary.

393    I reject Whistle Funds’ contention that there was a subtle distinction between Mr Silverman deciding to terminate by reason of the fact of the complaints and Mr Silverman making that decision because the consequence of Mr Vize making the complaint was that the relationship between the two individuals was unworkable. In this regard, Whistle Funds likened the factual position and distinction to those that arose in Barclay and BHP. In essence, it was submitted that in the exercise of a workplace right, an employee may not only be exercising the relevant right but also acting in breach of a workplace norm. Where the reason for the termination is the breach of the workplace norm, the substantial and operative reason for the termination is not the exercise of the right itself.

394    I accept that, depending on the facts at hand, a distinction is to be drawn between a decision being made because of the exercise of a workplace right and the fact that in exercising that workplace right, the relevant employee may have breached some workplace norm, such as a code of conduct (as was the case in Barclay and BHP Coal). However, the difficulty with Whistle Funds’ contentions is that they are not borne out by the pleaded case or Mr Silverman’s evidence.

395    First, neither the pleadings in the Defence nor Mr Silverman’s evidence sought to explain these subtle distinctions. For example, I find nothing subtle about Mr Silverman’s acceptance that he regarded it as unacceptable that Mr Vize had complained about his directive. There was no evidence as to what workplace norm was contravened by Mr Vize complaining about Mr Silverman’s directive. It is true that Mr Silverman elsewhere said that he regarded the relationship as unworkable and that Mr Vize was undermining the business and being disloyal, but in my view (for the reasons stated above) the real substance of this evidence was that it was the very fact that Mr Vize had complained to Mr Silverman about his directive that was operating on his mind. By his own admission, it annoyed him.

396    Second, I did not find Mr Silverman’s evidence during cross-examination on these topics to be impressive and I regarded him as being combative. He was clearly irked by having to make obvious concessions to the effect that he was annoyed and angered that Mr Vize had deigned to raise the Biggs Advice and complained about his directive. Though he made concessions in this respect, they were obvious ones that in my view reflected the true position as to his reasons for the termination. Mr Silverman may have given consideration to the termination of Mr Vize’s engagement in November 2024, but that again arose in the context of Mr Silverman making serious allegations that Mr Vize was preferring the interests of some investors over others and not acting in accordance with the direction of the Board. If there was any substance to these allegations, one would have expected Mr Silverman, as the Executive Chairman, to have acted on the alleged conflict of interest.

397    What these matters reveal is consistent with the impression I formed about Mr Silverman in respect of these aspects of his evidence. In my assessment, having reviewed all the evidence and observed him closely in the witness box, Mr Silverman has the propensity to be tempestuous and react emotively when he is challenged, whether by Mr Vize or his cross-examiner. I am comfortably satisfied that a substantial and operative reason for the termination of Mr Vize’s engagement on the Termination Date was because Mr Vize had exercised his workplace right to complain, and that annoyed and angered Mr Silverman into deciding to cut ties with him.

398    Third, to the extent that it is not clear from the foregoing, I reject Mr Silverman’s denials and other aspects of his evidence where he sought to explain the reason for the termination as being because he formed some form of clinical managerial judgment that the relationship with Mr Vize was unworkable simpliciter. I regarded aspects of his evidence as inconsistent including as follows:

(a)    Mr Silverman said he made the decision to terminate Mr Vize’s engagement on or about 4 March 2025 but prior to reading the 4 March 2025 Email: T251.39-.47;

(b)    contrary to (a), he also said he decided to terminate Mr Vize’s engagement following the receipt of the 4 March 2025 Email and the 5 March 2025 Email: T212.1-.16; T235.16-.19);

(c)    contrary to both (a) and (b), he said he could not recall whether he decided to terminate Mr Vize’s engagement on 5 March 2025 before or after receiving the 5 March 2025 Email: T235.24-.25; and

(d)    contrary to most of the above, he said he made the final decision to terminate Mr Vize’s engagement on 5 March 2025 but that in the days and months prior, had “become convinced that Mr Vize was no longer suitable for the engagement” and that “we would be better off without him”: T252.1-.6.

399    For the above reasons, not only am I satisfied that Whistle Funds has failed to discharge its onus to rebut the presumption contained in s 361 of the FW Act, I am satisfied that a substantial and operative reason for the termination of Mr Vize’s engagement was that he had exercised a workplace right by the 4 March 2025 Email.

400    It follows that I am satisfied that Whistle Funds contravened s 340(1)(a)(ii) of the FW Act as alleged by Mr Vize.

10.    MR SILVERMAN’S LIABILITY

401    Mr Vize pleaded that Mr Silverman was knowingly involved in Whistle Funds’ contravention of s 340(1)(a)(ii) of the FW Act, and failure to pay annual leave and make superannuation contributions contraventions in contravention of s 44 of the FW Act, within the meaning of s 550 of the FW Act: ASOC at [32], [41], [52].

402    Section 550 of the FW Act provides as follows:

550    Involvement in contravention treated in same way as actual contravention

(1)    A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.

Note:    If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person’s contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).

(2)    A person is involved in a contravention of a civil remedy provision if, and only if, the person:

(a)    has aided, abetted, counselled or procured the contravention; or

(b)    has induced the contravention, whether by threats or promises or otherwise; or

(c)    has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or

(d)    has conspired with others to effect the contravention.

(Original emphasis.)

403    The principles applicable to accessorial liability have long been established since Yorke v Lucas [1985] HCA 65; 158 CLR 661 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ). It is well-settled that in order to be involved in a contravention for the purpose of s 550 of the FW Act, it is necessary to establish that the alleged accessory has knowledge of the essential ingredients of the contravention. Until the decision of the High Court in Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27; 281 CLR 338, there was a difference of view expressed by various judges and courts as to the level of knowledge that the accessory must be shown to have in order to establish liability on his or her part, especially where an element of the alleged contravention involves a legal conclusion of some sort. Both a “wider view” and a “narrower view” had come to be expressed. Across the various judgments of members of the High Court in Productivity Partners, it has now been held that it is necessary to establish that the alleged accessory had knowledge of the “essential matters” or “essential facts” constituting the contravention, and, in essence, the “wider view” was sufficient to found accessorial liability: at [82] (Gageler CJ and Jagot J); at [270] (Edelman J); at [339] (Beech-Jones J). Stated as a point of principle, the decisions of the High Court in Productivity Partners is plain.

404    In my view, the difficulty that Mr Vize confronted in this case is that both his pleaded case against Mr Silverman and his submissions were pitched in conclusory terms and at too high a level of generality. An essential matter and fact in respect of each contravention that Mr Vize alleged that Mr Silverman had been involved in was that Mr Vize was an employee. There are two routes by which it may be concluded that Mr Vize was an employee:

(a)    the first is that Mr Vize was an employee at common law by reference to the principles in Personnel Contracting and Jamsek outlined at [104]ff above. On this approach, Mr Silverman’s knowledge must be assessed by reference to the rights and obligations of the contracting parties as contained in the terms of a written or unwritten contract only; and

(b)    the second is that Mr Vize was an employee for the purposes of s 15AA of the FW Act, which requires an assessment of the real substance, practical reality and true nature of the relationship between the parties to the contract, and permits an assessment of how the contract was or is performed in practice. On this approach, Mr Silverman’s knowledge must be assessed by reference to the “totality of the relationship” between Whistle Funds and Mr Vize, that is, both the relevant contractual terms and the subsequent conduct of the parties.

405    Leaving to one side whether the question of Mr Vize’s employment involves a conclusion of law or fact, or of mixed-fact and law, it was necessary for Mr Vize to establish (consistently with Productivity Partners) that Mr Silverman had knowledge of the essential facts, matters and circumstances that made Mr Vize an employee at common law and/or for the purpose of the FW Act, though I accept he did not need to know that was the position at law. In this respect, the case against Mr Silverman had to be pleaded with precision and Briginshaw applied, as did s 140 of the Evidence Act 1995 (Cth).

406    The pleaded case against Mr Silverman was, in my view, conclusory in several respects. In relation to the case that Mr Silverman had been involved in Whistle Funds’ contravention of s 340(1)(a)(ii) of the FW Act, Mr Vize pleaded as follows in the ASOC at [30A]-[31]:

30A     Mr Silverman:

a.     Decided to dismiss Mr Vize (by himself or alternatively with others);

b.     Decided to dismiss Mr Vize because of, or for reasons including, that Mr Vize exercised his workplace rights pleaded in paragraph 27 above; and

c.     Alternatively to paragraph b, decided to dismiss Mr Vize in the knowledge that the decision to dismiss Mr Vize was made because of, or for reasons including, that Mr Vize exercised his workplace rights pleaded in paragraph 27 above.

31.     By reason of the facts pleaded in paragraph 30A, Mr Silverman aided, abetted or procured, and, or alternatively, by act or omission, directly or indirectly, was knowingly concerned in, or party to, the contravention alleged against Whistle Funds pleaded in paragraphs 27 to 30 above.

Particulars

Mr Silverman was involved in the contravention alleged against Whistle Funds in paragraphs 27 to 30 above, having issued the Termination Letter.

407    It will be immediately apparent from the above paragraphs that Mr Vize did not plead that at the relevant time, Mr Silverman knew either that (a) Mr Vize was an employee, or (b) he knew of the facts, matters and circumstances that made by Vize an employee.

408    The difficulty with the pleaded case is that it is at odds with what must be shown. The position is a fortiori (as Mr Silverman said in his evidence) that Mr Silverman believed Mr Vize had been engaged as an independent contractor and that this accorded with Mr Vize’s wishes. There were several parts of Mr Silverman's first affidavit that were admitted generally or admitted as relevant to his state of mind in which he stated that he believed Mr Vize was initially proposing to be engaged, and was engaged, as an independent contractor, and that he continued to be engaged as an independent contractor: Silverman 1 at [22], [25], [33], [39], [44], [55] and [89].

409    In Whitby v ZG Operations Australia Pty Ltd (No2) [2019] FCA 201, Thawley J had occasion to consider (in the context of an application for costs) what may need to be shown in respect of an alleged accessory where it is contended that a person engaged as an independent contract was in fact an employee. His Honour reasoned as follows at [28]-[32]:

28    Knowledge that the applicants performed their work in a particular way and were not paid as employees, whilst clearly relevant to the question, does not equate to knowledge that the applicants were, in truth, employees. Mr Dixon may have thought that the applicants were independent contractors, being what the applicants were ultimately determined to be.

29    A pleading that a person is “knowingly concerned” in a contravention is a serious one, akin to a pleading of dishonesty – see: Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31 at [70]. A pleading that a person was knowingly concerned in a contravention, exposing them to personal liability and seeking the imposition of civil penalties, should be drafted with some considerable care. It should plead the material facts said to establish that the person was knowingly concerned in the contravention. This includes an express identification of the elements of the contravention and an express pleading that the person had knowledge of each of the essential elements constituting the contravention. It should identify the material facts said to establish knowledge or from which such knowledge is to be inferred. The pleading should generally also identify the material facts said to constitute the relevant acts or omissions of the person which are relied upon as establishing any practical connection with or link to the contraventions (Whitby at [234], [235]) which are contended to establish the person was “knowingly concerned” within the meaning of s 550(2)(c).

30    In its application to the present circumstances, if the applicants’ case when instituted was based on the notion that Mr Dixon knew that the applicants were employees, that allegation should have been made expressly in the pleading together with the material facts relied upon as establishing that Mr Dixon had that knowledge or from which such knowledge should have been inferred. If that had occurred, attention would necessarily have been directed to whether the claim was a reasonable one to make and whether the material or evidence available or likely to be available (assessed in accordance with s 140 of the Evidence Act 1995 (Cth) and Briginshaw v Briginshaw (1938) 60 CLR 336) permitted the pleading of the relevant material facts and provided reasonable cause to institute the proceedings.

31    If the claim of knowledge that the applicants were in truth employees rested largely or entirely on the fact that Mr Dixon knew what the applicants did in the course of their work, the question would naturally have arisen whether that provided reasonable cause, in the circumstances of the case, to plead that he was “knowingly concerned” in contraventions of the FW Act.

32    It is one thing to assert a person had actual knowledge that an arrangement constituted an employment arrangement if, for example, armed with knowledge of the relevant facts, the person had sought and received advice from another person with expertise in the field, or if they themselves had sufficient experience in the field. It is another to assert that a person knew that arrangements constituted employment arrangements simply because they knew what the parties did in the performance of their work. Clearly there are cases where the circumstances of the parties of themselves so obviously give rise to the conclusion that the relationship is one of employment that it could be inferred that a person familiar with the arrangements knew an employment relationship existed. The present case is not an example of that situation. Even if it were such a case, it would have been desirable, if not necessary, for the applicants to plead that Mr Dixon’s knowledge that the applicants were, in truth, employees was to be inferred on the basis that such a conclusion was obvious from identified facts known to Mr Dixon and in light of his experience. Such a pleading would have directed attention to whether there was reasonable cause to institute proceedings on that basis.

(Emphasis added.)

410    In Australian Rail, Tram and Bus Industry Union v Railtrain Pty Ltd [2019] FCA 1740, Flick J at [14] referred to and applied the above analysis in the context of a strike out application in respect of a claim brought against alleged accessories. I accept that neither Whitby nor Railtrain involved a final determination on the merits of claims for accessorial liability and the determinations there arose in the context of, respectively, an application for costs and an application for strike-out. Nevertheless, Thawley J’s reasons in Whitby identify several critical considerations.

411    It is not necessary that, in a case of this type, it must be shown that the alleged accessory had knowledge of the conclusory fact or conclusion of law that the relevant independent contractor was an employee, but it must be shown that the alleged accessory had knowledge of the essential facts, matters and circumstances to support a finding that the alleged accessory was thereby involved in the asserted contravention. In respect of the claim that Mr Silverman had been involved in the contravention of s 340(1)(a)(ii) of the FW Act, these matters were not even pleaded. Nor were they established on the evidence, to which I will return.

412    As for the other contraventions in respect of which it is alleged that Mr Silverman was accessorily liable, the first of these was in relation to the alleged contravention of s 44 of the FW Act in relation to the failure to pay annual leave on termination. In respect of this case, the pleaded case was as follows:

40A.    Mr Silverman:

a.    On the Termination Date, knew that Mr Vize was an employee of Whistle Funds, or alternatively knew the matters pleaded in paragraph 8;

b.    On the Termination Date, knew employees of Whistle Funds were entitled to annual leave on termination and, or alternatively, knew employees had leave entitlements on termination under the FW Act; and

c.    Decided not to procure Whistle Funds to pay Mr Vize annual leave on termination of his employment, and or alternatively, failed to procure Whistle Funds to make this payment, in the knowledge of the matters recorded in paragraphs a and b above.

40.    By reason of the facts pleaded in paragraph 40A, Mr Silverman aided, abetted or procured, and, or alternatively, by act or omission, directly or indirectly, was knowingly concerned in, or party to, the contravention alleged against Whistle Funds in paragraphs 33 to 39 above.

Particulars

Mr Silverman was involved in the contravention alleged against Whistle Funds in paragraphs 33 to 39 above, having taken the actions the subject of the alleged contravention.

413    In relation to the case that Mr Silverman had been involved in Whistle Funds’ contravention of s 44 of the FW Act by reason of failing to make superannuation contributions, Mr Vize pleaded as follows in the ASOC at [50A]-[51]:

50A.    Mr Silverman:

a.    From 1 January 2024, knew Mr Vize was an employee for the purposes of the Superannuation Guarantee (Administration) Act 1992 (Cth), and, or alternatively, knew the matters recorded in paragraphs 44A, 44B, 4, 6, 8, 9 and 13 above;

b.    Decided not to procure Whistle Funds to make contributions to a superannuation fund for the benefit of Mr Vize and, or alternatively, failed to procure Whistle Funds to make such contributions, in the knowledge of the matters recorded in paragraph 39.a above.

51.    By reason of the facts pleaded in paragraph 50A, Mr Silverman aided, abetted or procured, and, or alternatively, by act or omission, directly or indirectly, was knowingly concerned in, or party to, the contravention alleged against Whistle Funds in paragraphs 47 to 50 above.

Particulars

Mr Silverman was involved in the contravention alleged against Whistle Funds in paragraphs 47 to 50 above, having taken the actions the subject of the alleged contravention.

414    Unlike the claim against Mr Silverman in relation to his alleged involvement in the contravention of s 340(1)(a)(ii) of the FW Act, the pleadings in relation to the contraventions relating to annual leave and superannuation were different in that they at least asserted that Mr Silverman knew that: (a) as at the Termination Date, Mr Vize was an employee or knew of the matters pleaded in the ASOC at [8]; and (b) from 1 January 2024, knew that Mr Vize was an employee for the purposes of the SG Act, and, or alternatively, knew the matters recorded in the ASOC at [44A], [44B], [4], [6], [8], [9] and [13] above.

415    Each of these matters bear close scrutiny. What is alleged is that Mr Silverman knew that Mr Vize was initially engaged as a “consultant” and was engaged on that basis again under the Second Consultancy Agreement: ASOC [4] and [6]. Then, it is alleged at ASOC at [8] that Mr Silverman knew that as Fund Manager, Mr Vize:

(a)    received a fixed annual sum of $250,000 for the performance of work, which increased to $300,000 in September 2019 and which was paid in equal monthly instalments;

(b)    performed work exclusively for Whistle Funds;

(c)    was under the control and supervision of Mr Silverman in discharging his duties; and

(d)    was held out to be an emanation of Whistle Funds, including in external fundraising documents.

416    Then, it is alleged that Mr Silverman knew that the Second Consultancy Agreement had been “superseded” by a contract of employment and that he was thereafter an employee from 1 July 2017: ASOC at [9].

417    Next, it is alleged by reason of ASOC at [13] that Mr Silverman knew that between the Promotion Date and the Termination Date, Mr Vize was:

(a)    exclusively performed work for Whistle Funds;

(b)    received fixed annual remuneration of $300,000 for the performance of work, which increased to $350,000 in October 2023 and which was paid in equal monthly instalments;

(c)    received bonuses for the performance of work;

(d)    was paid during periods of annual and sick leave;

(e)    was required to use a Whistle Funds email account, was provided with tools of trade and/or reimbursed for work-related equipment and expenses by Whistle Funds, and allocated a permanent workstation in Whistle Funds’ offices;

(f)    was subject to the control and supervision of Mr Silverman;

(g)    was given authority to supervise and manage staff of Whistle Funds, and to sign legal documents such as office leases on behalf of Whistle Funds;

(h)    attended Christmas events and social gatherings held by Whistle Funds for its employees; and

(i)    was in a senior role and held out to be an emanation of Whistle Funds, including in external fundraising documents.

418    Finally, it is alleged by reason of ASOC [44A] and [44B] that:

(a)    The First Consultancy Agreement provided that:

(i)    Mr Vize was required to provide “consultancy services” including “but not limited to financial modeling (sic), cash flow management, and preparation of investor reports” (cl 3.1);

(ii)    in performing the services, Mr Vize agreed “to act with professional skill and diligence with a view to promoting, advancing and improving the business conducted by Whistle Funds Management” and “act reasonably and exercise all powers to perform the Services” (cl 3.2(a));

(iii)    Mr Vize warranted that he would provide these broad range of services “with due care and skill” (cl 5(a)(ii)); and

(iv)    Mr Vize had duties with respect to confidentiality and privacy that broadly reflect employees’ duties (cl 6 and 7).

(b)    The Second Consultancy Agreement provided that:

(i)    Mr Vize was required to “perform work at such times as are reasonably necessary to provide the Services, as agreed between the parties from time to time” (cl 1.3);

(ii)    Mr Vize was required to “comply with all lawful and reasonable directions given concerning the performance of the Services” (cl 1.7); and

(iii)    Mr Vize was paid monthly services fees, on the condition he provided “evidence of the times at which the Services were performed, where reasonably requested by the Company” and a valid tax invoice (cl 2.2).

419    There are difficulties with each of these assertions as to Mr Silverman’s knowledge. Before I turn to these individually, it should be generally noted that Mr Vize’s pleadings and submissions failed to clearly articulate the legal basis upon which it was said that Mr Silverman had the requisite knowledge, specifically whether such knowledge was on the basis of the common law route or under s 15AA of the FW Act (see [404] above). For example, while the allegations at ASOC [44A] and [44B] concern the terms of written contracts, the matters at ASOC [8] and [13] address the subsequent conduct of the parties. While this may appear to be an arid point of law that distracts attention from proving the accessory has knowledge of the essential matters, the clear distinction between the approaches at common law and under the FW Act, as summarised at [404] above, needs to be borne in mind.

420    Turning to the individual difficulties with each of the assertions as to Mr Silverman’s knowledge, the first two (at ASOC [4] and [6]) merely assert that Mr Silverman was aware that Mr Vize had been engaged as a consultant. That, without more, does not establish any fact, matter or circumstance by which it could be said that Mr Silverman thereby knew that Mr Vize was an employee. In fact, it supports the contrary conclusion.

421    The assertion at ASOC [9] that Mr Silverman knew that the Second Consultancy Agreement was superseded and an employment contract had been entered into, or knew of the facts, matters and circumstances, is not supported by any evidence to which I was taken. Mr Vize’s submissions made no attempt to support this assertion by reference to any evidence. It may be accepted that Mr Silverman was aware of the changes to Mr Vize’s remuneration to a fixed annual fee, but he was also aware that Mr Vize would continue to be engaged on the basis that he would use his business name, Advize, and would be collecting and remitting GST and that Whistle Funds would not be making PAYG deductions. Mr Vize’s case did not grapple with what was to be divined from these facts as to Mr Silverman’s state of mind as to the status of the Second Consultancy Agreement.

422    The more directly relevant pleadings are those at ASOC [8] and [13]. At least by reason of those paragraphs, Mr Vize’s pleading asserted that Mr Silverman had knowledge of certain facts, matters and circumstances that would make Mr Vize an employee. On the evidence before me, I am satisfied that Mr Silverman knew the following facts:

(a)    from sometime in mid-July 2017, Mr Vize would:

(i)    be performing the role of Fund Manager and would be paid a fixed annual fee of $250,000 in equal monthly instalments, which increased to $300,000 in September 2019;

(ii)    perform his services under the direction of Mr Silverman as required. Although Mr Silverman denied that Mr Vize was working under his control or supervision (see Silverman 1 at [95](b)) and stated that he did not control the manner in which Mr Vize performed his work (Silverman 1 at [84]), he accepted that the was “ultimately responsible for requesting and managing the services that Mr Vize performed” (Silverman 1 at [84]). I am also prepared to infer that he knew that Whistle Funds was entitled under the Second Consultancy Agreement to exercise significant control over the performance of the services that Mr Vize provided; and

(iii)    be held out to the public and investors as a Fund Manager;

(b)    from sometime in April 2021, Mr Vize:

(i)    had been offered and had accepted the role of Managing Director. Given the nature of this role, I am prepared to infer that Mr Silverman was aware that Mr Vize was entrenched in the business of Whistle Funds;

(ii)    would be paid a fixed annual fee of $300,000 in equal monthly instalments and that this increased to $350,000 in October 2023;

(iii)    would perform his services under the direction of Mr Silverman as required; and

(iv)    would be held out to the public and investors as the Managing Director, including on the basis of the letter sent from Mr Silverman to an investor (see [89] above).

423    However, I am not satisfied that Mr Silverman knew of the following facts:

(a)    Mr Vize was being paid for annual and sick leave, though he was made aware form time-to-time when Mr Vize was taking holidays. Mr Vize’s evidence was that he discussed his entitlement to sick and annual leave with Mr Levy, not Mr Silverman: Vize 1 at [32]. Mr Silverman gave evidence, which was not challenged, that he was not aware of that conversation: Silverman 1 at [59];

(b)    Mr Vize was not providing invoices on a monthly basis. While Mr Silverman was aware that Mr Vize did not always provide invoices in order to be paid, his unchallenged evidence was that he was not aware that Mr Vize was not creating invoices and that Mr Vize would only create and backdate invoices on request: Silverman 1 at [65]. This is consistent with my impression of Mr Silverman, who did not strike me as someone who would monitor whether Mr Vize was submitting invoices on a regular basis;

(c)    Mr Vize was exclusively performing work for Whistle Funds. Mr Silverman knew that the Second Consultancy Agreement did not prevent Mr Vize from providing services to other persons, was of the view that Mr Vize wanted to build a consulting business and understood Mr Vize to be involved in “other engagements”, but was not aware of whether Mr Vize did in fact provide such services: Silverman 1 at [46]; T.202.30-.35; and

(d)    from the Promotion Date, Mr Vize would receive bonuses for the performance of work. There is no evidence before me that Mr Vize received any bonuses or similar such additional payments after December 2020 (see [84] above).

424    In addition, as noted above, Mr Silverman gave evidence that he believed that Mr Vize was an independent contractor (see [408] above). I accept that merely because a witness states that he has a belief about a matter, it does not follow that that evidence should be accepted. That is especially so if the witness has knowledge of the facts, matters and circumstances that belied that belief. None of this was explored with Mr Silverman in cross-examination or in the submissions before me. Although I have found Mr Silverman to have been a problematic witness in respect of particular topics, I have no reason to doubt that he genuinely believed that Mr Vize was being engaged as an independent contractor, which belief he held because he believed that is what Mr Vize desired and had asked for. This is no small thing. I accept Mr Silverman was being honest in these respects. I am satisfied that he believed that Mr Vize wanted to be an independent contractor for the flexibility of that arrangement and the tax benefits (whatever they were) that Mr Vize would derive from those arrangements. Given that Mr Silverman knew that Mr Vize would continue to use Advize to issue invoices, and was collecting and remitting GST, his belief that Mr Vize continued to be engaged as an independent contractor was a reasonable one for him to have held, even though that belief was legally incorrect.

425    I accept Mr Silverman’s evidence in each of the above respects.

426    Nor am I satisfied that Mr Silverman had any relevant knowledge that even as an independent contractor, Mr Vize would become entitled to payment of superannuation.

427    It follows from the above that I am not satisfied that Mr Vize has discharged his onus to establish an essential and necessary element of the accessorial claim against Mr Silverman that he had knowledge of the facts, matters and circumstances that made Mr Vize an employee.

11.    THE RESPONDENTS’ CROSS-CLAIM

428    By their Cross-Claim, the respondents contended that if I determined that Mr Vize was an employee on and from 1 July 2017, then, Mr Vize was estopped from continuing to pursue his claims in these proceedings on the basis that to do so would be inconsistent with:

(a)    the agreed or assumed state of affairs that existed at all times, namely, that the relationship between Mr Vize and Whistle Funds was one of principal and independent contractor, not employment (Conventional Estoppel Claim); or

(b)    in the alternative, an implied representation made by Mr Vize through his conduct on and from 1 July 2017 that he would not assert that he was anything other than an independent contractor and not sue Whistle Funds for employee entitlements (Promissory Estoppel Claim) (ROS at [30]-[31]).

429    In the Amended Defence to Cross-Claim filed on 28 May 2026 (Defence to Cross-Claim), Mr Vize denies these claims and says that they fail to disclose a reasonable cause of action: Defence to Cross-Claim at [27]-[28].

430    As I have found that Mr Vize was an employee from in or about 1 July 2017, it is necessary to deal with these claims.

11.1    An overview of the estoppel claims

431    The estoppel claims advanced by the respondents are novel. In deference to the fact that they were robustly maintained, it has become necessary for me to set out the way in which they were advanced.

11.1.1    The Conventional Estoppel Claim

432    It was common ground between the parties that a conventional estoppel depends upon an assumption adopted by the parties as the conventional basis of their relationship: see, generally, Waterman v Gerling Australia Insurance Company Pty Ltd and Anor (2005) 65 NSWLR 300 at [78] (Brereton J), citing Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 at 244 (Gibbs CJ, Wilson and Brennan JJ); Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119; 66 ACSR 594 at [164] (Buss JA).

433    The thrust of respondents’ argument with respect to the Estoppel by Convention Claim was as follows:

(a)    under the First and Second Consultancy Agreements, Mr Vize was engaged as an independent contractor and not as an employee (ROS at [33]);

(b)    from 1 July 2017:

(i)    Mr Vize provided services under the name of Advize Property Consulting with his own ABN;

(ii)    the services provided by Mr Vize up until the Termination Date were within the scope of the Second Consultancy Agreement;

(iii)    the payment of a fixed retainer was a fee for work performed and consistent with the terms of cl 2 and Schedule 3 of the Second Consultancy Agreement;

(iv)    Mr Vize used his own ABN and identified himself for tax purposes as a “consultant”;

(v)    Mr Vize issued invoices to Whistle Funds for services performed and expenses incurred, including a component referable to GST;

(vi)    Mr Vize collected amounts for GST and remitted them to the ATO;

(vii)    Mr Vize was responsible for approving and facilitating the payment of invoices issued by him to Whistle Funds and did not withhold payments for income tax or for superannuation, from the service fees paid by Whistle Funds to him;

(viii)    Mr Vize set his own working hours and would take time off as and when he so chose;

(ix)    Mr Vize was able to provide services to third parties;

(x)    Mr Vize was able to engage other persons to provide services to Whistle Funds, subject to Whistle Funds’ agreement (ROS at [13], [33]-[34]);

(c)    based on the matters in (b) above, all parties assumed the relationship between Mr Vize and Whistle Funds to be a relationship of independent contractor and not employment (the Contractor Assumption) (Cross-Claim at [12]; ROS at [34]);

(d)    Mr Vize acted on the basis of the Contractor Assumption by acting as described in (b)(i) and (b)(iv)-(viii) above, and the respondents also acted on the basis of the Contractor Assumption by continuing to engage Mr Vize and pay the invoices issued by him (ROS at [35]) and accordingly, the Contractor Assumption was a mutual assumption adopted by the parties;

(e)    in light of the above, it would be unconscientious for Mr Vize to depart from the Contractor Assumption (citing The Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 444 (Deane J)) and would occasion detriment to the respondents, such that Mr Vize should be estopped from doing so (ROS at [36]-[37]); and

(f)    the detriment is said to have been obvious because if Mr Vize is successful in his case in these proceedings, the respondents would be required to pay employee entitlements with respect to annual leave, long service leave and superannuation, in addition to being exposed to orders for compensation and penalties for breaching the general protections provisions of the FW Act (RCS at [80(d)]).

434    Mr Vize submitted that the Conventional Estoppel Claim cannot succeed as it failed to make out several of the elements of estoppel outlined in Alpha Wealth. Further, Mr Vize submitted that there were fundamental problems with the conventional estoppel asserted by the respondents in that it was contrary to statute or public policy: see S Rares KC and Q Rares, The Law of Estoppel in Australia: Principles, Case Notes and Precedents (Thomson Reuters, 2025) [7.780]; Commissioner of Taxation v Thomas [2018] HCA 31; 264 CLR 382 at [77] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ); Keen v Holland [1984] 1 WLR 251 at 261 (Dunn, Oliver and Fox LLJ).

435    In response to the assertion that its claims were contrary to public policy, the respondents submitted that these were not pleaded by Mr Vize and that their Conventional Estoppel Claim was not “contrary to law” in circumstances where courts have recognised that parties can agree to give up their rights to sue to recover statutory entitlements, including employment entitlements: relying upon Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd [2003] FCAFC 18 at [17] (Ryan, Dowsett and Selway JJ): ROSR at [2(e)].

11.1.2    The Promissory Estoppel Claim

436    In the alternative, the respondents raised a promissory estoppel. The case that was pleaded in this respect was that on and from 1 July 2017, Mr Vize’s continuing conduct as described at [433(b)] above, constituted an implied representation that Mr Vize regarded himself as an independent contractor and would not sue the respondents to attempt to recover monies on the basis that he was an employee, allege contraventions of the FW Act or otherwise attempt to enforce any rights by alleging that he was an employee (Not to Sue Assumption): ROS at [38]. The respondents submitted that they were induced by Mr Vize to adopt the Not to Sue Assumption and that it would occasion detriment to them if Mr Vize was now allowed to depart from that Assumption, such that he should be estopped from doing so: ROS at [39]-[40].

437    The respondents contended that it was reasonable for the parties to a contract to create a relationship of independent contractor and thereby to operate on the Not to Sue Assumption. They further submitted that to allow Mr Vize to sue to recover entitlements in light of the Not to Sue Assumption, and the fact that the parties had conducted themselves for a significant period of time having regard to that Assumption, would be unconscionable: ROSR at [3(a)]-[3(b)].

438    Mr Vize submitted that “one can never have an estoppel in the face of a statute”: Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 at [51] (Young CJ in EQ, with whom Meagher and Beazley JJA agreed), citing Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 and Barilla v James (1964) 81 WN (Pt 1) (NSW) 457. He submitted that the respondents were seeking to enforce an estoppel “in the face of” a statute. It was submitted that the FW Act cannot be contracted out of, noting that even a deed of release for valuable consideration does not, by itself, preclude the making of underpayment claims: see Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 at [49] (White J), citing Josephson v Walker [1914] HCA 68; 18 CLR 691 at 700 (Isaacs J); Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; 121 IR 250 at [23]-[35] (Goldberg J); Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; 99 FCR 95 at [17]-[25] (French J). Despite acknowledging that it is not always clear when estoppel is said to be “in the face of” a statute (see S Rares KC and Q Rares, The Law of Estoppel in Australia: Principles, Case Notes and Precedents (Thomson Reuters, 2025) at [8.480]), Mr Vize submitted that there cannot be any serious doubt that this was such a case as one party was seeking to estop the other from enforcing beneficial legislation made in that latter party’s favour: AOSR at [18(f)].

11.2    Consideration

439    The Conventional Estoppel and Promissory Estoppel Claims should be dismissed. Irrespective of the form of estoppel, I am satisfied that both the estoppels claimed by the respondents fail because they are contrary to law and public policy. Regrettably, the ambition of the respondents’ estoppel claims was only matched by the absence of considered analysis.

440    As noted above, in Overmyer, Young CJ in EQ (with whom Meagher and Beazley JJA agreed) stated at [51] that “one can never have an estoppel in the face of a statute”. That statement may be too broad a proposition if it is to be read as meaning it requires no examination of the relevant statute to ascertain its objects that make the assertion of an estoppel inconsistent with the policy of the statute. That is clearly not what was being said by Young CJ in EQ, as is apparent from his Honour’s reliance on the decision of the Privy Council in Kok Hoong and a Full Court of the Supreme Court of New South Wales in Barilla v James (1964) 81 WN (Pt 1) (NSW) 457 (Walsh, Wallace and Asprey JJ). In Kok Hoong, the Privy Council stated at 1015-1017:

The respondent has invoked in support of its defence a principle which appears in our law in many forms, that a party cannot set up an estoppel in the face of a statute. Thus a corporation upon which there is imposed a statutory duty to carry out certain acts in the interest of the public cannot preclude itself by estoppel in pais from performing its duty and asserting legal rights accordingly. See Maritime Electric Co. Ltd. v. General Dairies Ltd. and Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. Given a “statutory obligation of an unconditional character” it is not open to the court to allow the party bound by that obligation to be barred from carrying it out by the operation of an estoppel. Similarly, there is, in most cases, no estoppel against a defendant who wishes to set up the statutory invalidity of some contract or transaction upon which he is being sued, despite the fact that by conduct or other means he would otherwise be bound by estoppel: see In re Bankruptcy Notice, in particular per Atkin L.J.

…On the other hand, there are statutes which, though declaring transactions to be unenforceable or void, are nevertheless not essentially prohibitory and so do not preclude estoppels. One example of these is the Statute of Frauds (see Humphries v. Humphries, in which it was no doubt considered that, following Leroux v. Brown, the statute ought to be treated as regulating procedure, not as striking at essential validity); another is the Stamp Act or Acts in their application to oral contracts of marine insurance, which, according to the decision in Barrow Mutual Ship Insurance Co. v. Ashburner, are not prohibited so much as penalised.

It has been said that the question whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or “on grounds of general public policy” (see In re A Bankruptcy Notice, per Atkin L.J.). But a principle as widely stated as this might prove to be rather an elusive guide, since there is no statute, at least public general statute, for which this claim might not be made. In their Lordships' opinion a more direct test to apply in any case such as the present, where the laws of moneylending or monetary security are involved, is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise. Thus the laws of gaming or usury (Carter v. James) override an estoppel: so do the provisions of the Rent Restriction Acts with regard to orders for possession of controlled tenancies (Welch v. Nagy).

General social policy does from time to time require the denial of legal validity to certain transactions by certain persons. This may be for their own protection, as in the case of the infant or other category of persons enjoying what is to some extent a protected status, or for the protection of others who may come to be engaged in dealings with them, as, for instance, the creditors of a bankrupt. In all such cases there is no room for the application of another general and familiar principle of the law that a man may, if he wishes, disclaim a statutory provision enacted for his benefit, for what is for a man's benefit and what is for his protection are not synonymous terms. Nor is it open to the court to give its sanction to departures from any law that reflects such a policy, even though the party concerned has himself behaved in such a way as would otherwise tie his hands…

(Emphasis added.)

441    The principle stated in Kok Hoong finds support in Australian authority. As a general proposition, in Thomas, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ stated at [77], in the context of considering an alleged conventional estoppel, that “the justice of an estoppel would not permit parties to create a private arrangement which produced an outcome contrary to law”. It may be accepted that an estoppel (of one form or another) or a waiver of rights may be raised in respect of acts engaged in by one or other party in respect of their respective statutory rights: eg see, generally, Verwayen. However, whether an estoppel or waiver of rights is to be upheld will depend on the objects of the statute and the matters of public policy involved: see, generally, Westfield Management Ltd (as trustee for the Westart Trust) v AMP Capital Property Nominees Ltd (as nominee of Unisuper Ltd in its capacity as trustee of the complying Superannuation Fund known as Unisuper) [2012] HCA 54; 247 CLR 129 and Price v Spoor [2021] HCA 20; 270 CLR 450. In Westfield Management, in the context of unitholders seeking to contract out of their statutory rights, rather than in the context of estoppel, French CJ, Crennan, Kiefel and Bell JJ observed at [46]:

The fact that Ch 5C does not contain any express prohibition against a unitholder contracting not to exercise the right given by s 601NB does not conclude the question as to the enforceability of such an agreement between scheme members and a responsible entity. Windeyer J observed in Brooks v Burns Philp Trustee Co Ltd that a person upon whom a statute confers a right may waive or renounce his or her rights unless it would be contrary to the statute to do so. It will be contrary to the statute where the statute contains an express prohibition against “contracting out” of rights. In addition, the provisions of a statute, read as a whole, might be inconsistent with a power, on the part of a person, to forego statutory rights. It is the policy of the law that contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void, even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text.

442    More directly in relation to the rights and obligations of employers and employees under employment and industrial statutes, the respondents submitted that nothing in the estoppels claimed by them stood at odds with the principles stated above. It was contented that both the Conventional and Promissory Estoppel Claims involved no public right or public policy as they pertained to private rights and obligations as between Whistle Funds and Mr Vize and in respect of which their private arrangement was in essence (either by reason of the mutuality of the assumption between them or the implied representation made by Mr Vize) that Mr Vize would neither assert that he was an employee nor sue Whistle Funds to recover monies on the basis that he was engaged as an employee.

443    Yet, there are decisions of this Court that stand in the way of the estoppels claimed by the respondents. The decision of Perram J in ACE Insurance Ltd v Trifunovski [2011] FCA 1204; 200 FCR 532 is one such case. There, the facts were similar to those in the present case. The putative employer, Ace Insurance Ltd had engaged five insurance sales agents who worked under contracts declaring their status to be that of independent contractors. The primary question before the Court was whether the agents were in fact employees and therefore entitled to annual and long service leave under the applicable industrial award and under the then Workplace Relations Act 1996 (Cth) (WR Act). Not only did Ace Insurance deny that the agents were employees, it alternatively contended that they were estopped from claiming to be employees. At [134]-[146], Perram J rejected Ace Insurance’s case based on estoppel, and this aspect of his Honour’s judgment was not challenged or disturbed on appeal to the Full Court. In rejecting the claim based on estoppel, Perram J reasoned as follows at [135]-[137] (including by relying upon the decision of the Privy Council in Kok Hoong):

Often enough statutory provisions will prohibit the making of certain contracts or will declare that certain contracts or agreements, if made, will be of no force or effect. Whether laws concerning estoppel may achieve the very result which the forbidden contract may not has, in the main, turned upon a consideration of the policy at which the legislative prohibition is aimed. According to the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 ; [1964] 1 All ER 300 (Kok Hoong), the appropriate course to take in considering the effect that statutory prohibitions on certain species of contract have on estoppel is to ask “whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties may have created by their conduct or otherwise”: at 1016. There was perhaps some narrowing of that approach — which required a consideration of the nature of the public policy involved — in the Court of Appeal’s decision in Keen v Holland [1984] 1 WLR 251; [1984] 1 All ER 75 (Keen). There the English Agricultural Holdings Act 1948 provided particular protections for holdings of land to which it applied and the Court of Appeal accepted — on the strength of Johnson v Moreton [1980] AC 37; [1978] 3 All ER 37 — that the parties could not reach an agreement which treated those protections as inapplicable. More importantly, the court was not disposed to accept that an estoppel could achieve the same result: “If an express agreement to this effect would be avoided, as it plainly would, then it seems to us to follow that the statutory inability to contract out cannot be avoided by appealing to an estoppel” (at WLR 261; All ER 82 ). I am not so sure that it follows that merely because a particular contract is prohibited no estoppel can ever arise. Such an approach is unnuanced. As the Privy Council noted in Kok Hoong (at AC 1015–16; All ER 308) there are well-known categories where equitable estoppels flourish in the face of statutes which render certain contracts unenforceable not the least of which concerns the Statute of Frauds 1677 and the doctrine of part performance.

In this court, the principle in Keen has been applied by a number of first instance judges. In Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1987) 73 ALR 373 (Beckford Nominees) a franchisee sought to outflank the operation of a provision in a statute which denied its right to renew a licence. Another provision in the same legislation (s 7) provided that any contractual provision which was inconsistent with the statute would be void to the extent of the inconsistency. “I do not read s 7 as saying anything explicitly about estoppel,” said Pincus J “but it is necessarily implicit in that provision that the same result cannot be achieved by an estoppel”: at 378–9. French J followed Beckford Nominees in the Full Court’s decision Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95; 176 ALR 46; [2000] FCA 784 at [20]–[21] (Metropolitan Health Service Board) but in terms which are consistent with the more nuanced approach in Kok Hoong: “The application of principles of estoppel and waiver to the enforcement of statutory rights depends upon their consistency with the terms and purpose of the statute creating the rights” (at 104 [21]). The other members of bench on that occasion — Lee and Carr JJ — expressly declined to consider whether an estoppel could be mounted against the operation of a federal award concluding instead that, on the facts, there was no estoppel (at [62]).

The Kok Hoong approach was adopted by the Queensland Court of Appeal in Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114 ; [2010] QCA 119 at [67] and also by the NSW Court of Appeal in Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 at [51]. These being decisions of intermediate appellate courts I should, and will, follow them. That being so, it is necessary to consider the particular statutory prohibitions which apply and then to discern from them whether they identify a particular social policy which an estoppel might undermine.

444    Perram J then turned to examine the public and social policy arising from industrial and employment statues and observed at [139]-[140] that there were a number of authorities of various courts that indicated that parties are prevented from contracting out of entitlements under such statutes: citing Josephson v Walker [1914] HCA 68; 18 CLR 691 at 700–1 (Isaacs J); Byrne v Australian Airlines Ltd [1995] HCA 24; 185 CLR 410 at 421; 131 ALR 422 at 427 (Brennan CJ, Dawson and Toohey JJ); and Jackson v Monadelphous Engineering Associates Pty Ltd [1997] IRCA 281 (Moore J); Givoni (Goldberg J). His Honour then reasoned that the principles and outcomes stated in these earlier decisions were also applicable to the WR Act (as amended): see at [142]-[144]. His Honour concluded as follows on the topic at hand (at [145]-[146]), including by reference to an old but illustrative case:

In an industrial context the conclusion that an estoppel may not be deployed against protective provisions is not new as the striking facts in Walsh v Commercial Travellers Association of Victoria [1940] VLR 259; [1940] ALR 191 show. In that case, a 24 year old man answered a job advertisement for “lad 18 or 19 years as junior billiard maker” by lying to the prospective employer that he was 19. He obtained the position and was thereafter paid the rate due to a 19 year old billiard maker. He subsequently claimed the wages due to a 24 year old (his true age) to which the billiard maker pleaded an estoppel based on the man’s fraudulent representation as to his age. That defence was rejected by the Full Court of Victoria: “It would destroy in a large measure the operation of the statute to allow a plea of estoppel where the statement relied upon constituted the means employed to bring about a contract of employment although the contract itself can afford no defence” (at VLR 263 per Mann CJ).

The claim based on estoppel must therefore be rejected.

445    The respondents did not draw my attention to the decision of Perram J. During the course of the hearing, I repeatedly pressed the respondents to give me greater assistance as to matters of public policy, including by reference to the objects of the FW Act. In response to my requests for assistance, the respondents accepted that there was no authority that they were aware of in common law jurisdictions that had established that estoppels could be raised in answer to a claim made by a putative employee in respect of employee entitlements under applicable industrial or employment statutes. However, as noted above, the respondents likened the position that prevailed to that of an employee compromising an underpayment claim, relying on Kowalski, and maintained that what was involved was an assertion of private rights that involved no public policy element to it. The respondents’ submissions in this respect and the analysis they advanced was overly simplistic and did not engage with the true principles arising from Kowalski.

446    In Kowalski, the Full Court in fact stated at [17] that there were certain statutory rights under the then WR Act that “cannot be waived or compromised”. The Full Court (Ryan, Dowsett and Selway JJ) distinguished that from a situation where a party, having commenced litigation advancing claims under that statute, compromised that litigation by way of a heads of agreement following a mediation. In such an instance, the Full Court reasoned at [17]:

…to view the Heads of Agreement as simply involving some diminution of the appellant’s statutory rights is to misunderstand the agreement reached. Plainly the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See eg Lieberman v Morris (1944) 69 CLR 69 at 80. That is clearly what occurred in this case. Indeed, the consideration received by the appellant would seem to be something over $250,000 if costs forgone are included. Having regard to the ordinary exigencies of litigation, and the particular risks that the appellant’s arguments involved, many might think that the agreement was reasonably generous to him. However, as pointed out above, the appellant in his appeal did not seek to set aside or repudiate the Heads of Agreement.

447    As Wheelahan J’s considered and thorough analysis in Wardman v Macquarie Bank Ltd [2023] FCAFC 13; 322 IR 278 (with which Bromberg and Snaden JJ agreed in these respects) demonstrates, the decision in Kowalski must also be approached within the limits of what was there decided. It is not necessary for me to add to Wheelahan J’s analysis at [202]-[204], other than to adopt the following summary of the subsequent cases, which was plainly correct:

Kowalski was referred to by White J, sitting as a member of the Full Court, in Maersk Crewing Australia Pty Ltd v CFMMEU [2021] FCAFC 231; 289 FCR 308. At [99], White J stated that Kowalski “stands for the unsurprising proposition that it is open to parties to litigation, or presently contemplated litigation, to compromise the litigation in a binding way even when the subject matter of the litigation is the enforcement of claimed statutory entitlements”. However, his Honour held at [96] that the settlement of a dispute, which in Maersk was an industrial dispute over the crewing of vessels, could not involve the modification of statutory entitlements, which in that case were rights under an enterprise agreement. In their joint judgment, Banks-Smith and Jackson JJ at [144] expressed agreement with White J on this point, stating that rights under an enterprise agreement could not be relinquished without a variation to the agreement that was approved by the Fair Work Commission.

In Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134, the employer appealed to a single judge of this Court from a decision of the Industrial Relations Court of South Australia. Relevantly, the Fair Work Ombudsman had pursued a proceeding for penalties for underpayment of award entitlements, and orders for payment of outstanding amounts to some employees. The proceedings were successful, and resulted in orders against the employer for compensation and penalties. Two employees for whose benefit the Ombudsman sought and obtained the orders had entered into deeds of settlement prior to the commencement of the proceeding. The deeds of settlement provided for payments by the employer to the two employees with a denial of liability, and releases by the employees with respect to wage claims arising out of their employment. White J held at [33] that the deeds of settlement entered into by the two employees did not deprive the court at first instance of jurisdiction to hear the claims brought by the Fair Work Ombudsman. As to the prospect of double recovery, White J held at [35] that regard could be had to bona fide compromises with the employees in exercising the court’s discretion as to relief. White J then turned to whether there had been any discretionary error by the Industrial Relations Court of South Australia in granting relief, noting that the point had not been taken by the employer below. At [49], White J referred to the well-established principle that employers and employees could not contract out of minimum entitlements established by awards, and recorded an acceptance by the Fair Work Ombudsman that this principle did not preclude parties from compromising bona fide current and contemplated litigation, citing [17] of the reasons of the Full Court in Kowalski which I have set out above. In relation to the principle referred to in Kowalski, White J at [52] was cautious about its application—

The principle acknowledged in Kowalski should be carefully confined in its application. Were it otherwise, the general principle that parties cannot contract out of award obligations may be easily subverted. Counsel for Atkins Freight appeared to acknowledge that this was so by submitting that the Kowalski principle applied to “bona fide” disputes.

On the facts, White J held at [54] that the deeds of settlement in question contravened the principle that it was not open to parties to contract out of award obligations. Amongst other things, his Honour held that the deeds referred to lump sum payments which were not said to have been paid for any particular period, or any entitlement. Further, the deeds referred to the settlement of claims for “wages”, when it was unclear what those claims were, and where the contraventions found by the court extended beyond wages to unpaid allowances and expenses. His Honour referred also to the line of authorities commencing with Ray v Radano to which I referred earlier, and to the close attention that must be given to any agreement between the parties as to the purpose of a payment, and to any specific designation of purpose which indicates that the payment was made for a purpose other than satisfaction of an award entitlement. Mainly for these reasons, White J held that the exercise of discretion by the court at first instance was not shown to be wrong.

(Emphasis added.)

448    These matters were also further explained by the Court of Appeal of Victoria in Viterra Malt Pty Ltd v Cargill Australia Ltd (2023) 74 VR 1, where the Court stated at [368] (Sifris, Walker and Whelan JJA):

The ability of a person to compromise a claim based on statutory rights that cannot themselves be bargained away was recently the subject of consideration by the Full Court of the Federal Court in Wardman v Macquarie Bank Ltd (‘Wardman’). The Court there referred to various examples where parties who were in dispute over statutory entitlements that may not be bargained away could, nonetheless, effectively contract to compromise the dispute. Two such examples may be mentioned here, by way of illustration:

(a)    In Qantas Airways Ltd v Gubbins the New South Wales Court of Appeal held that persons affected by discriminatory practices prohibited by the Anti-Discrimination Act 1977 (NSW) could not bargain away those rights in advance, but that the position was otherwise once a dispute had arisen, because the Act encouraged settlement of disputes, and that it was clear that it did not preclude complainants from compromising or releasing accrued claims for damages.

(b)    Similarly, in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd, the Full Court of the Federal Court stated that it is true that certain statutory rights ‘cannot be waived or compromised’. The Court went on, however, to observe that ‘this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation’.

449    So that there is no doubt about it, although the FW Act does not contain an express prohibition on contracting out, that is its effect, which is consistent with the reasoning of the Full Court in Wardman. No party before me contended otherwise. The respondents did not draw the decision in Wardman to my attention or address it. Nevertheless, they accepted that in the present case, they were raising an estoppel in circumstances where there was no compromise of any extant or future litigation. Despite this, the respondents maintained that the estoppel they raised was merely an agreement made between private parties not to assert or pursue certain statutory rights if the basis of their contractual arrangement was said to be otherwise. The respondents made no effort to examine the public policy underlying the minimum statutory entitlements arising from the operation of the FW Act, despite me urging them during opening and closing submissions to pay these matters close attention. The underdeveloped nature of the respondents’ claims may be illustrated by the simple hypothetical example that I posed to Senior Counsel for the respondents at T206.9-T206.41 and to which I never received a satisfactory response.

450    I reject the respondents’ contentions that what is involved here is merely a matter of private right as between two parties. To accept that contention would be to ignore the matters of public and social policy borne by the objects of the FW Act (s 3) and as enshrined in the establishment of the National Employment Standards, which are the minimum entitlements to which every employee in the Australian economy is entitled, subject to statutory exceptions there contained (eg in respect of casual employees). Section 3 of the FW Act states its objects as follows:

3    Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a)    providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b)    ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c)    ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(ca)    ensuring a safety net of fair and relevant minimum terms and conditions for regulated workers through enforceable minimum standards orders and related measures; and

(caa)    ensuring a safety net of fair and relevant minimum terms and conditions for persons in a road transport contractual chain through enforceable road transport contractual chain orders and through road transport contractual chain guidelines; and

(cb)    providing appropriate remedies in relation to unfair terms of services contracts; and

(d)    assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e)    enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f)    achieving productivity and fairness through an emphasis on enterprise‑level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g)    acknowledging the special circumstances of small and medium‑sized businesses.

451    As will be apparent from these objects, it should not be assumed that the entrenchment of statutory minimum standards are only for the benefit of employees. Compliance with those standards also benefits employers who comply with them so that there is a level minimum playing field for competitive businesses and the economy to prosper in the view of the Parliament. Whilst there may be rival political views as to what those minimum standards should include and what is necessary for social and economic prosperity, it is not the role of this Court to embark upon those matters. Rather, the matter of public and social policy that is involved is an examination of the objects of the statute to determine whether the estoppels claimed here are inconsistent with those objects. I am satisfied that they are.

452    In the result, I am not satisfied that the estoppels claimed by the respondents are able to be maintained and I reject their claims.

453    As a result of the conclusion I have reached, it is not necessary for me consider or determine the many other issues in respect of the respondents’ claims in estoppel. For completeness, in relation to the Conventional Estoppel Claim, I would not have been satisfied that there was any evidence adduced by the respondents to address the matters raised in Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [45] and [49] (Macfarlan JA, with whom McColl JA agreed). In relation to the Promissory Estoppel Claim, I would not have been satisfied that the representation alleged by the respondents was clearly made by Mr Vize, let alone that it was capable of being implied from his alleged conduct.

12.    DISPOSITION

454    Based on the foregoing, I am satisfied of the matters stated in [5] above. I will make the declarations and the orders set out at the commencement of these reasons. I will list the matter for a case management hearing on 16 July 2026 for the purpose of programming a hearing for the determination of the remaining questions of relief, remedy, the imposition of any penalties claimed by Mr Vize, and the assessment of any damages. At that time, I will raise with the parties whether the matter should be referred to mediation.

Associate:

Dated:    26 June 2026