Supreme Court New South Wales Medium Neutral Citation: Saridas v Papuan Oil Search Ltd (No 2) [2022] NSWSC 1032 Hearing dates: 10 June 2022 Date of orders: 1 August 2022 Decision date: 01 August 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff's claims as outlined below are dismissed: a. The claims relating to breaches of the contract of employment and repudiatory conduct as contained in paragraphs 5 to 15 and 26 of the Plaintiff's amended statement of claim filed 6 April 2022 (Statement of Claim); b. The claim that the Deed of Release executed by the parties dated 19 November 2020 (Deed of Release) is void and of no effect as contained in paragraph 24 of the Statement of Claim; c. The claim that the Deed of Release had an implied term as contained in paragraph 19 of the Statement of Claim; and d. The claims relating to alleged contraventions of Part 9.4AAA of the Corporations Act 2001 (Cth) as contained in paragraph 34. 2. Paragraphs 35 and 36 of the Plaintiff's amended statement of claim be amended: a. By inserting the introductory words "After the Deed of Release was entered" into paragraph 35; and b. deleting the words "34 and" in paragraph 36. 3. The Defendant is to file and serve any submissions in reply on the question of costs of the strike out/dismissal motion filed 2 May 2022, by 15 August 2022. 4. The Plaintiff is to file and serve a further Amended Statement of Claim by 22 August 2022; 5. The Plaintiff is to inform the Defendant which categories of the Notice to Produce dated 22 March 2022 (NTP) are pressed by 26 August 2022; 6. The parties are then to confer on what remains in issue. 7. The Defendant is to file and serve a further Amended Defence to the further Amended Statement of Claim by 12 September 2022; 8. The Defendant is to file and serve submissions in relation to its Notice of Motion filed 1 April 2022 (NTP Notice of Motion) by 16 September 2022; 9. The Plaintiff is to file and serve submissions in reply relating to the NTP Notice of Motion by 30 September 2022; 10. The Plaintiff is to file and serve any Reply to the further Amended Defence by 3 October 2022; 11. The matter be listed for a hearing to determine the question of costs and the Defendant's NTP Notice of Motion on a date to be determined by the Court at 10 am on 12 October 2022; and 12. Liberty to restore the matter to the list on 1 days' notice. Catchwords: CIVIL PROCEDURE — parties directed to confer on orders — order in issue — order that statement of claim be amended to reflect findings of prior judgement Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 13.4 Cases Cited: Saridas v Papuan Oil Search Ltd [2022] NSWSC 825 Category: Procedural rulings Parties: Aynet Saridas (Plaintiff) Papuan Oil Search Ltd (Defendant) Representation: Counsel: D Hooke SC (Plaintiff) D O'Dowd (Plaintiff) I Neil SC (Defendant) B Rauf (Defendant) Solicitors: Gillis Delaney Lawyers (Plaintiff) Kingston Reid (Defendant) File Number(s): 2021/324287 JUDGMENT 1. In June 2022 I concluded that aspects of Ms Saridas' claims could not be pursued, being legally untenable. I directed the parties to confer on outstanding objections to the further amended statement of claim and the orders which needed to be made to reflect conclusions which I had reached in the judgment: Saridas v Papuan Oil Search Ltd [2022] NSWSC 825. 2. The parties later agreed on almost all of the orders to be made. 3. What Papuan Oil Search proposed was: "1. Pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff's claims as outlined below are dismissed: a. The claims relating to breaches of the contract of employment and repudiatory conduct as contained in paragraphs 5 to 15 and 26 of the Plaintiff's amended statement of claim filed 6 April 2022 (Statement of Claim); b. The claim that the Deed of Release executed by the parties dated 19 November 2020 (Deed of Release) is void and of no effect as contained in paragraph 24 of the Statement of Claim; c. The claim that the Deed of Release had an implied term as contained in paragraph 19 of the Statement of Claim; and d. The claims relating to alleged contraventions of Part 9.4AAA of the Corporations Act 2001 (Cth) as contained in paragraph 34, and paragraphs 35 to 37 (except insofar as paragraphs 35 to 37 refer to conduct that occurs after 19 November 2020). 2. The Defendant is to file and serve any submissions in reply on the question of costs of the strike out/dismissal motion filed 2 May 2022, by 15 August 2022. 3. The Plaintiff is to file and serve a further Amended Statement of Claim by 22 August 2022; 4. The Plaintiff is to inform the Defendant which categories of the Notice to Produce dated 22 March 2022 (NTP) are pressed by 26 August 2022; 5. The Defendant is to file and serve a further Amended Defence to the further Amended Statement of Claim by 12 September 2022; 6. The Defendant is to file and serve submissions in relation to its Notice of Motion filed 1 April 2022 (NTP Notice of Motion) by 16 September 2022; 7. The Plaintiff is to file and serve submissions in reply relating to the NTP Notice of Motion by 30 September 2022; 8. The Plaintiff is to file and serve any Reply to the further Amended Defence by 3 October 2022; 8. The matter be listed for a hearing to determine the question of costs and the Defendant's NTP Notice of Motion on a date to be determined by the Court after 10 October 2022; and 10. Liberty to restore the matter to the list on 1 days' notice." 1. When the matter was before me on 25 July 2022 the position was that the orders were agreed, but were not then made, because of the need to find a further hearing date for the outstanding motion relating to the production of documents and agreeing a timetable for the hearing of that motion. 2. It later emerged that an error had been made as to instructions which had been given. Thus order 1d. was in issue, although it was agreed that paragraph 34 of the further amended statement of claim should be dismissed. The parties provided written submissions about the dispute. The further amended statement of claim 1. Ms Saridas' employment terminated on an agreed date in November 2020, after the parties had entered the deed of release. I concluded that claimed breaches of the whistleblower provisions of the Corporations Act 2001 (Cth), after the deed had been executed, could not be dismissed as being legally untenable: at [130]-[138]. 2. Paragraphs 34 to 37 of the further amended statement of claim pleaded: "34. In contravention of its confidentiality obligations, the defendant, through Lee, disclosed the information contained in the 12 November 2020 letter to Wulff, who as the CEO of the defendant was the individual about whom the majority of the plaintiff's complaints related. 35. In further breach of Part 9.4AM of the Act the defendant engaged in conduct that caused actual detriment to the plaintiff in circumstances where the defendant was aware that the plaintiff had made the disclosures contained in the 12 November 2020 letter, and that knowledge was part of the reason for the conduct. Particulars (a) When asked by a credit analyst whether the behavioural issues by the Wulff had anything to do with the departure of the plaintiff last year, the Chairman, Mr Lee responded in the negative. This statement was untrue, as the conduct of Wulff was central to the plaintiff's departure. (b) False statements were made by Ann Diamant, VP Investor Relations of Oil Search ("Diamant') to market analysts and investors to the effect that the plaintiff was employed under a "probationary" period and that she was "let go" because her performance in the role was inadequate. (c) In January 2021, the plaintiff was made aware by a credit analyst that representatives of POSR had made statements to the effect that the employment of the plaintiff was terminated due to poor performance. The analyst also informed the plaintiff that this was widely discussed in the investment market as the explanation for the sudden departure of the plaintiff. These representations were untrue. (d) In February 2021, the plaintiff was informed by another credit analyst that a member of the POSR IR team told an investor that the plaintiff had been "sacked" by POSR because of incompetence, and that they had made a mistake in hiring the plaintiff. This statement was false. (e) In or about June or July 2021, Diamant made a statement to an advisor at Diamant's new employer and described the appointment of the plaintiff as the "disastrous appointment of the CFO who had to go". This statement was false. (f) At some time prior to July 2021, Diamant told a journalist at the Australian Financial Review that the plaintiff's employment was terminated because of incompetence. This statement was false. (g) In July 2021, the plaintiff was informed by a director of a ASX listed company that they had received feedback from a credit analyst that the plaintiff was dismissed from the role of CFO because of incompetence. This representation was false. (h) At some time prior to July 2021, the Chairman of the POSR Audit Committee - Fiona Harris, advised a director of an unlisted public company that the employment of the plaintiff was terminated due to poor behaviours. This statement was false. (i) This false information pertaining to the circumstances in which the plaintiff ceased employment with POSR was further disseminated into the marketplace as the natural and probable consequence of the statements described above. 36. The defendant's conduct described in paragraphs 34 and 35 above was "detrimental conduct" within the meaning of section 1317AD of the Act. 37. In the premises, the plaintiff has suffered detriment within the meaning of section 1317ADA of the Act for which she claims damages pursuant to sections 1317AD and 1317AE, including: (1) Damages for harm or injury, including psychological harm: and (2) Damages for harm to her reputation; and (3) Damages for her ability to obtain business employment commensurate with her skill, expertise and experience: and (4) Damages for economic loss representing her loss of opportunities in her professional field, including lost wages and associated benefits which accompany such roles, including the ability to participate in share incentive schemes and to obtain incentive bonuses; and (5) Aggravated damages: and (6) Exemplary damages: and (7) Costs." The parties' cases 1. Papuan Oil Search argued that: "2.2 It is the Defendant's position that on the face of paragraphs 35 to 37 of the Amended Statement of Claim (ASOC) the time period of the alleged 'detrimental conduct' is unclear. For example, paragraph 34 of the ASOC states: "In contravention of its confidentiality obligations, the defendant, through Lee, disclosed the information contained in the 12 November 2020 letter to Wulf, who as the CEO of the defendant was the individual about whom the majority of the plaintiff's complaints related" 2.3 Paragraph 34 does not specify the date upon which that alleged disclosure occurred, However, the Defendant is aware through correspondence with the Plaintiff that this alleged disclosure allegedly occurred prior to the date of the Deed of Release. This lack of specificity is also found in paragraph 35. For example, paragraph 35(f) states "At some time prior to July 2021... ". Paragraph 35(i) also states that "This false information pertaining to the circumstances in which the plaintiff ceased employed with POSR was further disseminated into the marketplace ...". Again, no date as to when that information was disseminated has been detailed in the ASOC. 2.4 However, as the pleadings are currently drafted, they are liable to (and ought to) be struck out, in accordance with Her Honour's Decision." 1. For Ms Saridas it was submitted that: "(i) the particulars provided in paragraph 35 of the Amended Statement of claim all postdate the plaintiff's cessation of employment and execution of the Deed or release; and (ii) its is not an amendment capable of being pleaded." Conclusion 1. In the result, I am satisfied that paragraphs 35 - 37 cannot be dismissed, given what I decided in the June judgement, but that 35 and 36 need to be amended, to reflect those conclusions. Paragraph 35 by the insertion of the introductory words "After the Deed of Release was entered" and paragraph 36 by deleting the reference to paragraph 34. Orders 1. For these reasons I order that: 1. Pursuant to Rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff's claims as outlined below are dismissed: a. The claims relating to breaches of the contract of employment and repudiatory conduct as contained in paragraphs 5 to 15 and 26 of the Plaintiff's amended statement of claim filed 6 April 2022 (Statement of Claim); b. The claim that the Deed of Release executed by the parties dated 19 November 2020 (Deed of Release) is void and of no effect as contained in paragraph 24 of the Statement of Claim; c. The claim that the Deed of Release had an implied term as contained in paragraph 19 of the Statement of Claim; and d. The claims relating to alleged contraventions of Part 9.4AAA of the Corporations Act 2001 (Cth) as contained in paragraph 34. 2. Paragraphs 35 and 36 of the Plaintiff's amended statement of claim be amended: a. By inserting the introductory words "After the Deed of Release was entered" into paragraph 35; and b. deleting the words "34 and" in paragraph 36. 3. The Defendant is to file and serve any submissions in reply on the question of costs of the strike out/dismissal motion filed 2 May 2022, by 15 August 2022; 4. The Plaintiff is to file and serve a further Amended Statement of Claim by 22 August 2022; 5. The Plaintiff is to inform the Defendant which categories of the Notice to Produce dated 22 March 2022 (NTP) are pressed by 26 August 2022; 6. The parties are then to confer on what remains in issue; 7. The Defendant is to file and serve a further Amended Defence to the further Amended Statement of Claim by 12 September 2022; 8. The Defendant is to file and serve submissions in relation to its Notice of Motion filed 1 April 2022 (NTP Notice of Motion) by 16 September 2022; 9. The Plaintiff is to file and serve submissions in reply relating to the NTP Notice of Motion by 30 September 2022; 10. The Plaintiff is to file and serve any Reply to the further Amended Defence by 3 October 2022; 11. The matter be listed for a hearing to determine the question of costs and the Defendant's NTP Notice of Motion on a date to be determined by the Court at 10 am on 12 October 2022; and 12. Liberty to restore the matter to the list on 1 days' notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2022