ROXANNE MYSKO In Person v EXPRESS CARGO SERVICES [2023] SASCA 120

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STEIN) [2023] SASC 11 Applicant: ROXANNE MYSKO In Person Respondent: EXPRESS CARGO SERVICES Counsel: MR T HURREN - Solicitor: 1878 ELIX LAWYERS Hearing Date/s: 08/11/2023 File No/s: CIV-23-004793 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. MYSKO v EXPRESS CARGO SERVICES [2023] SASCA 120 Judgment of the Court of Appeal (The Honourable Justice Doyle and the Honourable Justice Bleby) 16 November 2023 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - COURSE OF CONDUCT AT TRIAL APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - REMEDIES In May 2020, the appellant was employed by the respondent, Express Cargo Services (‘ECS’) in the role of Compliance Manager. The respondent terminated the appellant’s contract in June 2020. The appellant then communicated with third parties, specifically customers and clients of ECS, asserting that ECS was deficient in meeting its compliance and safety obligations. ECS brought a claim seeking declaratory relief and permanent injunctions to prevent the appellant from further communicating false statements, disclosing information gained during employment and engaging in conduct to further injure ECS. The trial judge found that statements made by the appellant lacked factual foundation and were false. She also found that the appellant breached the confidentiality obligations in her employment contract, by disclosing and using confidential information in making those communications to the detriment of ECS. The appellant submitted at trial that she was required to send the communications in fulfilment of her responsibility falling under various provisions within the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (‘HVNL’) and that she was further protected under the Corporations Act 2001 (Cth) in making the communications as a ‘whistleblower’. -- 1 of 14 -- The primary judge granted declaratory relief and permanent injunctions in favour of ECS. Broadly, the complaints made by the appellant on appeal were that the underlying proceedings initiated by ECS were vexatious, that ECS acted in breach of its legal obligations with respect to safety and compliance and that the appellant had legal obligations to make the communications. At the hearing of the appeal, the appellant submitted that the primary judge erred by failing to acknowledge the appellant’s imposed non-transferable duties within the meaning of s 5 of the Work Health and Safety Act 2012 (SA) (‘Work Health and Safety Act’) to make the communications as a ‘person conducting a business or undertaking’ (‘PCBU’) which overrode her obligations under her contract of employment. She also submitted that the primary judge erred in her construction of cl 26D of the HVNL, and that the judge did not address the operation of s 1317AD of the Corporations Act 2001 (Cth). Held (by the Court), dismissing the appeal: 1. The appellant has not identified any basis for concluding that the primary judge erred with respect to any matter that might reasonably be thought to come within the Notice of Appeal. 2. The appellant has offered no basis on which it could be concluded that the judge erred in her evaluation of the evidence, findings of fact or conclusions of law. The judge’s findings were not only available, but compelling. 3. The primary judge did not err by failing to address at trial that the appellant was compelled to make the communications by the Work Health and Safety Act, as this was not in issue at trial. 4. The primary judge did not err in her construction of cl 26D of the HVNL. The section does not impose any reporting obligations. There is no basis on which it could be concluded that the section requires or permits disclosures of the nature of the communications made by the appellants to the competitors and customers of ECS. 5. The judge did not err in failing to address s 1317AD of the Corporations Act 2001 (Cth). The appellant did not seek compensation under s 1317AE. In any event, the judge’s finding that the communications were incapable of coming within the terms of s 1317AA is unassailable. Heavy Vehicle National Law (South Australia) Act 2013 (SA) cll 26C, 26D, 26D(1); Corporations Act 2001 (Cth) ss 1317AA, 1317AA(1), 1317AA(2), 1317AA(4), 1317AA(5), 1317AAD, 1317AAD(2)(b), 1317AD, 1317AD(1), 1317AE; Work Health and Safety Act 2012 (SA) s 5; Uniform Civil Rules 2020 (SA) rr 3.2, 12.1, 146.1(1)(a), 146.1(1)(c), 215.5, 218.13(3), referred to. Express Cargo Services Pty Ltd v Mysko [2023] SASC 11; Fox v Percy (2003) 214 CLR 118; Purins v Alpine Constructions Pty Ltd [2008] SASC 11, considered. -- 2 of 14 -- MYSKO v EXPRESS CARGO SERVICES [2023] SASCA 120 Court of Appeal – Civil: Doyle and Bleby JJA 1 THE COURT: The respondent on this appeal, Express Cargo Services (‘ECS’) is a provider of logistical freight management services in the energy sector. In late May 2020, ECS employed the appellant, Ms Roxanne Mysko, in the position of Compliance Manager. ECS terminated Ms Mysko’s employment within a few weeks of having engaged her. 2 In July 2020, ECS made an ex parte application, seeking injunctive orders against Ms Mysko and requiring her to provide copies of emails she had sent to clients or customers of, or relating to, ECS and delivery up of her computers and hard drives to an external expert. A Master of this Court made orders on the application. ECS filed and then revised a Statement of Claim pleading various causes of action in respect of communications that Ms Mysko had sent to third parties, which made assertions about a lack of compliance on the part of ECS with respect to its safety obligations. 3 Following a lengthy trial, a judge of this Court made orders granting declarations and permanent injunctions in favour of ECS and against Ms Mysko. The judge described the circumstances causing ECS to bring the application for declarations and permanent injunctions as follows:1 After a short period of employment as [ECS’s] compliance manager, [Ms Mysko] communicated with customers and clients of [ECS] making allegations that [ECS] was failing in its safety and compliance. [ECS] contends the statements made by [Ms Mysko] are false. The statements caused [ECS] great concern because safety and compliance is very significant in its business. [ECS] brought proceedings seeking declaratory relief and permanent injunctions to prevent [Ms Mysko] from further communicating false statements, disclosing information gained during employment and engaging in conduct to further injure [ECS]. 4 Ms Mysko’s case at trial was that the statements she made were true, that she had obligations to make the statements and that she was a whistleblower. The issues arising at trial 5 The primary judge described the issues arising for determination as follows: The main issues which arise for determination in this matter are: • Was there a binding contract between the applicant and respondent? • Were statements made by the respondent in her communications false? • Was there breach of contract by the respondent? 1 [2023] SASC 11. -- 3 of 14 -- [2023] SASCA 120 The Court 2 • Did the respondent publish false statements about the applicant with the intention of injuring the applicant? • Was the respondent obliged to send the communications by the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA)? • Was the respondent a whistleblower? • Is it appropriate to grant the relief sought? 6 What follows is a broad description of the judge’s determination of these issues. 7 The judge found that there was a binding contract of employment between ECS and Ms Mysko. Her Honour found that the contract was entered into on 27 May 2020 when Ms Mysko accepted, by signing a letter of engagement and position description, an offer of employment contained in a letter of engagement.2 She found that the contract contained a clause requiring Ms Mysko to use her best endeavours to promote and protect the interests of the company (clause 7.1(b)) and a clause containing obligations of confidentiality (clause 9). Those obligations of confidentiality survived termination of the contract. 8 The judge found that the employment contract terminated on 18 June 2020 when ECS made a payment in lieu of notice. 9 The judge found that Ms Mysko made statements, in various communications, asserting non-compliance by ECS with its obligations as a provider of logistical freight management services in the energy sector. Her Honour found that the following statements made by Ms Mysko in those communications lacked factual foundation and were false:3 • “this Freight Forwarder is an absolute parasite on trucking companies”; • “He uses small subbie and directs them to get all trucks with no COR [Chain of Responsibility] in place...”; • “Drivers complaint working 30 days straight under Colin Mc Guinness [sic]…”; • “Engaging a small unqualifies [sic], not Audited Sub- Contractor… to engage 15-20 subbies under Bob directions and so ECS have no COR responsibility…”; • “Most of all their list of Subbies have never been Audited for COR before and while contracting under ECS, so long as they have insurances seems to be the mentality…”; • “1 truck had 9 speeding and I was told to ‘Take it easy on drivers – not even a non-conformance given, pushed under carpet”; 2 [2023] SASC 11 at [429]. 3 [2023] SASC 11 at [399]. -- 4 of 14 -- [2023] SASCA 120 The Court 3 • “…they are bullies, cowboys and parasites off truck owners”; • “…Maycon Tilt ... holding all COR responsibility … getting in 15-20 operators – ECS never ever checked the COR with any of these little operators…”; • “…take it easy on any drivers pushed under carpet”; • “Virtually no subbies … have ever been Audited or trained under COR to move all their freight they forward”; • “ECS seemed happy with companies just sending in their insurance and vehicle details and copy of policy and procedures, but no follow up on businesses [sic] processes”; • “I wasn’t allowed to talk to driver and he had another 4 IVMS Breaches, pushed under carpet”; • “…there is Critical COR Risks”; • “Sadly, the breaches I witnessed under COR are of a Critical level under COR Legislation…”; and • “…my evidence and conclusion was this organisation is operating illegally under COR, it is what we would refer to as ‘Smoke and Mirrors’ having systems but no actual accountability…”. (Footnotes omitted) 10 As to whether Ms Mysko had breached the contract of employment, the judge found that certain of the communications constituted a breach of the obligation in clause 7 of the contract to promote and protect the interests of ECS. Those communications occurred while Ms Mysko was still employed by ECS. Her Honour then found certain statements by Ms Mysko met the description of confidential information in clause 9.4 of the contract. She found that the use of that confidential information for the purpose of making statements in the communications were to ECS’s detriment, given certain consequences that flowed from the communications. 11 Accordingly, the judge found that Ms Mysko had breached the confidentiality obligations in the contract of employment by disclosing and using confidential information in making those statements to the detriment of ECS.4 12 The judge found that at the time of making the communications, Ms Mysko did not believe, and did not have a reasonable basis to believe, the false statements made in those communications. Her Honour did not accept Ms Mysko’s assertions that in sending the communications, she was motivated only by altruistic purposes and concern for the safety of the industry.5 She concluded that the language of the 4 [2023] SASC 11 at [461]-[463]. 5 [2023] SASC 11 at [405]. -- 5 of 14 -- [2023] SASCA 120 The Court 4 messages and the emails that Ms Mysko sent was consistent with a deliberate intention to harm ECS.6 13 As to whether the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) (‘HVNL’) required Ms Mysko to send the communications, Ms Mysko asserted that cll 26C and 26D of the HVNL placed obligations on her to this effect. However, the judge concluded that Ms Mysko’s role as Compliance Manager at ECS did not make her a party in the Chain of Responsibility (‘CoR’) under the HVNL. Consequently, cl 26C did not apply. 14 As to cl 26D, the judge proceeded on the basis of the concession by ECS that it was arguable that Ms Mysko was, while employed by ECS, an executive for the purpose of cl 26D(1). However, the judge concluded that the various due diligence obligations that would thereby apply to Ms Mysko neither addressed nor expressly required the reporting of safety matters to the regulator or to other persons. Her Honour concluded that there was no basis for Ms Mysko’s contention that she was required to make the communications by reason of her executive role and due diligence obligations.7 Consequently, the judge rejected Ms Mysko’s defences based on asserted obligations or permissions in the HVNL. 15 As to whether Ms Mysko was a whistleblower, Ms Mysko relied on protections from civil or criminal action arising out of a qualifying disclosure of information under s 1317AA(1) or (2) of the Corporations Act 2001 (Cth) (‘Corporations Act’). The judge found, however, that the communications forming the basis of ECS’s claim were sent by Ms Mysko to a range of persons, being clients and competitors of ECS. None of those communications constituted a disclosure to any person or entity falling within the definition of eligible recipient for the purposes of these sections. The judge consequently found that none of the communications qualified Ms Mysko for protection as a whistleblower under s 1317AA(1) or (2).8 16 Her Honour also found that the matters contained in the communications were not disclosable matters to which s 1317AA(4) or (5) applied.9 She further rejected Ms Mysko’s contentions that the communications constituted public interest disclosures within the meaning of s 1317AAD or emergency disclosures within the meaning of s 1317AAD(2)(b). The requirements of those sections were not met in either case. 17 The judge concluded that ECS had established its claims of breach of contract and injurious falsehood. ECS did not seek an order for damages. It sought only declaratory relief and permanent injunctions. The judge made orders as follows:10 6 [2023] SASC 11 at [406]. 7 [2023] SASC 11 at [489]. 8 [2023] SASC 11 at [500]. 9 [2023] SASC 11 at [503]-[508]. 10 [2023] SASC 11 at [539]-[542]. -- 6 of 14 -- [2023] SASCA 120 The Court 5 The Court declares that by sending the Beattie Communication, the first Neil Mansell Communication and the second Neil Mansell Communication (as defined herein), the respondent breached the obligation in clause 7 of the contract between the applicant and the respondent to use best endeavours to promote and protect the interests of the applicant. The Court declares that by making statements in the Communications as referred to in paragraph [461] herein, the respondent breached the obligation in clause 9 of the contract between the applicant and the respondent to not use confidential information, as defined in the contract, to the detriment of the applicant. The respondent is permanently enjoined, at any time or place and by any means of communication or other act (including through United Transport Group), from disclosing to any person or entity (other than a legal practitioner with a retainer to act for the respondent) any information imparted to or gained by the respondent during the course of her employment by the applicant concerning any aspect of the business operations of the applicant. Such information includes (but is not limited to) any matters the subject of the Communications (as defined herein) and any views, beliefs or opinions that were formed or held by the respondent during the course of, or by reason of, her employment by the applicant concerning any aspect of the business operations of the applicant. The respondent is permanently enjoined, at any time or place, from performing any act or engaging in any conduct (including through United Transport Group) for the purpose of injuring the applicant in any way, or by reason of which the applicant might be so injured, including by bringing the applicant into disrepute or by interfering with any business affairs or contractual relations to which the applicant is or might be a party. 18 As already indicated, this is only a broad, descriptive summary of the primary judge’s determination of the main issues arising at trial. The judge’s conclusions were predicated on detailed findings of fact, and analysis of the obligations arising under the various legislative regimes that Ms Mysko invoked by way of defence to the causes of action that ECS pursued. The judge’s findings with respect to witnesses 19 The judge made careful findings of credibility and reliability with respect to the various witnesses. 20 With respect to the three witnesses called by ECS, the judge made the following findings. Mr Alan Leslie was the sole director, secretary and shareholder of ECS. Ms Mysko cross-examined Mr Leslie with a view to establishing failures on the part of ECS in safety and compliance, and to show that Mr Leslie was a liar and ought not be believed. The judge found Mr Leslie’s evidence to be honest, credible and reliable.11 21 Mr Nils (Colin) McGuinness was the general manager of project logistics for ECS. Ms Mysko cross-examined Mr McGuinness, primarily with a view to establishing that a matter contained in Mr McGuinness’s written statement was false. The judge found that Mr McGuinness had a clear recollection of relevant 11 [2023] SASC 11 at [36]. -- 7 of 14 -- [2023] SASCA 120 The Court 6 events and that his evidence was consistent with contemporaneous documents. She found his evidence to be honest, credible and reliable.12 22 Mr Daniel Gallagher was the director and owner of Total Assurance Solutions Pty Ltd, trading as TAS Group (‘TAS Group’). TAS Group had conducted a review of ECS’s systems and prepared a ‘Health, Safety & Environment Action Plan’ (‘HSE Action Plan’) following that review. Ms Mysko cross-examined Mr Gallagher in relation to the HSE Action Plan with a view to establishing that ECS had not conducted audits, that it should not have ad hoc processes and to cast doubt on Mr Gallagher’s view about ECS’s compliance. The judge found that Mr Gallagher was independent of ECS and that his evidence was honest, credible and reliable.13 23 Ms Mysko gave evidence by way of four affidavits, which she supplemented with oral evidence. The judge found that Ms Mysko’s recollection of events was inconsistent. She further found Ms Mysko’s evidence was in many, if not most, respects, inconsistent with contemporaneous documents, including contemporaneous documents that Ms Mysko had created. Her Honour found that Ms Mysko’s attempts to explain these inconsistencies lacked plausibility and that some of her evidence was directly inconsistent with her own contemporaneous documents.14 24 The judge also found that Ms Mysko’s evidence featured occasions of apparent exaggeration or reconstruction. Explanations that she gave at trial could not be reconciled with words in her own communications. The judge found that the explanations Ms Mysko gave for changing her position or giving inconsistent evidence lacked a plausible basis and were suggestive of self-serving reconstruction. She found that other evidence was established to be untruthful.15 25 The judge determined to approach Ms Mysko’s evidence with ‘considerable caution’. She identified that in making findings of fact, she was guided primarily by the contemporaneously created documents.16 In doing so, the judge carefully related her conclusions of fact to the evidence and explained the basis of each finding. The appeal 26 As was the case at trial, Ms Mysko was self-represented on the appeal. Consequently, the Notice of Appeal is not drafted in orthodox terms. It commences in essay form with a series of general complaints that are difficult to follow. However, it can be taken to be announcing an appeal against the whole of the judgment. The paragraphs in this initial section of the Notice of Appeal can only 12 [2023] SASC 11 at [41]. 13 [2023] SASC 11 at [42]-[45]. 14 [2023] SASC 11 at [51]. 15 [2023] SASC 11 at [52]. 16 [2023] SASC 11 at [53]. -- 8 of 14 -- [2023] SASCA 120 The Court 7 be read as background observations, certainly foreshadowing the complaints made in the Grounds of Appeal, but not constituting separate grounds themselves. 27 Next, under the heading ‘Orders challenged’, the Notice of Appeal announces an appeal against ‘all orders’ in several places. The essayed complaints that support this are, again, difficult to follow and range across a number of matters in an unstructured form. In this section, the document does announce a challenge against all key findings by the primary judge, in the terms as set out in the headnote to the judgment: 1. The respondent was employed by the applicant pursuant to a binding contract of employment. 2. The respondent owed to the applicant contractual duties: a. to act in the best interests of the applicant during her employment; b. of confidence, which continued after termination. 3. The respondent breached the contractual duties she owed to the applicant by making false assertions in her communications and by communicating references to confidential information. 4. The respondent through some communications published false statements about the applicant with the intention of injuring the applicant. 5. The respondent was not obliged by the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) to send the communications. 6. The respondent was not a qualifying whistleblower and the communications were not qualifying disclosures within relevant legislative whistleblower provisions. 7. In the circumstances, it is appropriate to grant declaratory relief and permanent injunctions. 28 The form then provides for Grounds of Appeal. The paragraphs appearing under this heading are also difficult to follow. They are, in many places, unintelligible. However, reading these together with the discursive complaints that appear earlier in the Notice of Appeal, the following complaints can be discerned: • The proceedings commenced by ECS were vexatious, in that they were designed to bully and intimidate Ms Mysko in circumstances where she had obligations to report unsafe and unlawful practices. • During Ms Mysko’s period of employment, ECS acted in breach of its legal obligations with respect to safety and compliance. These included obligations under the Work Health and Safety Act 2012 (SA) (‘Work Health and Safety Act’) and the HVNL. • Ms Mysko had legal obligations to make the communications. These obligations arose under the Work Health and Safety Act and the HVNL, and -- 9 of 14 -- [2023] SASCA 120 The Court 8 otherwise were permitted under the ‘whistleblower’ provisions in the Corporations Act. • These obligations overrode those in the contract of employment to promote and protect the interests of ECS and not to use confidential information to the detriment of ECS. 29 The Notice of Appeal also makes other complaints that do not seem to be directly referable to the judgment under appeal. These include a complaint that there was a violation of Ms Mysko’s ‘privacy rights’ in that ECS had no right to take possession of material for use in civil proceedings. This is most likely a reference to the orders the Master made on the original ex parte application. 30 Part 1 of the Notice of Appeal further references a contempt of court order, seeking that it be ‘removed’. This appears to be a reference to a finding of contempt against Ms Mysko by Kourakis CJ on 17 May 2023. 31 Insofar as the Notice of Appeal purports to challenge decisions or orders other than that of the primary judge, the appeal is incompetent. 32 ECS submitted that the whole of the appeal should be determined to be incompetent and dismissed on that basis, pursuant to Uniform Civil Rules 2020 (SA) (‘UCR’) rr 146.1(1)(a) and (c) and r 215.5, together with rr 3.2 and 12.1. It submitted that the Notice of Appeal is so unintelligible as to be incapable of being related to the judgment about which it complains, and that it contained irrelevant and scandalous material, including wild allegations of criminal conduct.17 33 ECS submitted in the alternative that by operation of UCR r 218.13(3), the appeal should be taken to have been discontinued and to have lapsed. The basis for this submission was that Ms Mysko did not file ‘the core appeal book, exhibit appeal book, written submissions, a list of authorities, chronology and an information sheet 3 months after the preparation commencement date [2 May 2023]’, or within the further time that the Court granted. The effect of UCR r 218.13(3) is that the appeal ‘is taken to have been discontinued and lapses’. 34 As to the contention that the appeal is wholly incompetent, it is possible to discern grounds as I have outlined above. The bulk of the Notice of Appeal is unintelligible, argumentative and contains scandalous material. However, we are prepared to proceed on the basis that it makes the complaints as summarised above. 35 As to ECS’s contention that the appeal has lapsed, it is correct to say that Ms Mysko has not complied with her obligations. ECS has stated the effect of the rule correctly. However, on 17 October 2023, Ms Mysko made an interlocutory application for an adjournment of the appeal. Livesey P dismissed that application on 18 October 2023 and ordered ECS to file and serve an appeal book. ECS did not, on that occasion, submit that the appeal had lapsed. The effect of the hearing 17 See Purins v Alpine Constructions Pty Ltd [2008] SASC 11. -- 10 of 14 -- [2023] SASCA 120 The Court 9 conducted by Livesey P and the orders his Honour made in consequence was to impose an alternative regime for progression of the appeal. We would not treat the appeal as having lapsed. 36 On 6 November 2023, Ms Mysko emailed to the Court a 19-page document, dated 5 November 2023. This document appears to be another essay of complaint. Insofar as it is intelligible, it rehearses the arguments largely to the same effect as those summarised above. We mention this document, which is neither filed nor in a proper form, only because it asserts: ‘The appellant brings this appeal on 33 Grounds’. Lest there be any misunderstanding, Ms Mysko cannot, two days before the appeal, purport to amend or recast her Grounds of Appeal, let alone in a document simply emailed to the Court. 37 Allowing Ms Mysko every latitude on account of being self-represented, we are prepared to treat this document as an aid to Ms Mysko’s submissions. It cannot expand the Grounds of Appeal. The hearing of the appeal 38 At the hearing of the appeal, Ms Mysko submitted that the primary judge had not addressed at all the fact that Ms Mysko was, by virtue of her position as Compliance Manager, a ‘person conducting a business or undertaking’ (‘PCBU’) within the meaning of s 5 of the Work Health and Safety Act. She submitted that this status imposed on her statutory duties under that Act which were not transferable to another person. The import of this submission was that these obligations required her to make the communications. This submission reflected one of the broad themes apparent in the Notice of Appeal. 39 Ms Mysko’s submission did not explain how the Work Health and Safety Act operated in her circumstances to prevent the findings of the primary judge, or how that legislation required her to send the communications to competitors and customers of ECS. In any event, however, Ms Mysko had neither pleaded nor otherwise submitted at trial that she was compelled to act as she did by reason of the Work Health and Safety Act. It was not in issue. The primary judge did not err in failing to address that matter. 40 Ms Mysko next submitted that the primary judge erred in her construction of cl 26D of the HVNL. That clause provides: 26D - Duty of executive of legal entity (1) If a legal entity has a safety duty, an executive of the legal entity must exercise due diligence to ensure the legal entity complies with the safety duty. Maximum penalty: The penalty for a contravention of the provision by an individual. (2) The executive may be convicted of an offence against subsection (1) even if the legal entity has not been proceeded against for, or convicted of, an offence relating to the safety duty. -- 11 of 14 -- [2023] SASCA 120 The Court 10 (2a) Subsection (1) does not apply to an executive of the legal entity acting on a voluntary basis, whether or not the executive is reimbursed for the expenses incurred by the executive for carrying out activities for the legal entity. (3) In this section— due diligence includes taking reasonable steps— (a) to acquire, and keep up to date, knowledge about the safe conduct of transport activities; and (b) to gain an understanding of— (i) the nature of the legal entity's transport activities; and (ii) the hazards and risks, including the public risk, associated with those activities; and (c) to ensure the legal entity has, and uses, appropriate resources to eliminate or minimise those hazards and risks; and (d) to ensure the legal entity has, and implements, processes— (i) to eliminate or minimise those hazards and risks; and (ii) for receiving, considering, and responding in a timely way to, information about those hazards and risks and any incidents; and (iii) for complying with the legal entity's safety duties; and (e) to verify the resources and processes mentioned in paragraphs (c) and (d) are being provided, used and implemented. 41 As identified above, ECS conceded that it was arguable that Ms Mysko was an executive to whom this clause applied. However, Ms Mysko’s submissions were not able to overcome the fact that this section does not impose any reporting obligations. Even if some kind of reporting obligation could be inferred, there is no basis on which it could be concluded that it required or permitted disclosures of the nature of the communications Ms Mysko made to competitors and customers of ECS. 42 Ms Mysko then addressed the ‘whistleblower’ provisions of the Corporations Act. In this regard, she complained that the judge did not address the operation of s 1317AD. Section 1317AD(1) provides: 1317AD Compensation and other remedies—circumstances in which an order may be made (1) A court may make an order under section 1317AE in relation to a person (the first person) if: (a) the first person engages in conduct (detrimental conduct) that: (i) causes any detriment to another person (the second person); or -- 12 of 14 -- [2023] SASCA 120 The Court 11 (ii) constitutes the making of a threat to cause any such detriment to another person (the second person); and (b) when the first person engages in the detrimental conduct, the first person believes or suspects that the second person or any other person made, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part; and (c) the belief or suspicion referred to in paragraph (b) is the reason, or part of the reason, for the detrimental conduct. 43 There are several difficulties with Ms Mysko’s complaint about the judge’s failure to address this section. In the first instance, ECS was the applicant in the proceedings; Ms Mysko did not bring a counterclaim seeking compensation under s 1317AE. In any event, however, the primary judge’s findings precluded any possibility that a reason for the detrimental conduct engaged in by ECS (terminating the contract of employment) was that Ms Mysko had made, or could make, a disclosure that qualifies for protection under that Part of the Act. The judge found that the communications were incapable of coming within the terms of s 1317AA. That conclusion is unassailable, not least by reason that the communications forming the basis of ECS’s claim were sent by Ms Mysko to a range of persons, being clients and competitors of ECS. Disposition of the appeal 44 Ms Mysko has not identified any basis for concluding that the primary judge erred with respect to any matter that might reasonably be thought to come within the Notice of Appeal. The judge engaged in a careful examination of the evidence. Her Honour made detailed and reasoned findings of fact with respect to adherence by ECS to its obligations of safety and compliance. She found that the evidence did not substantiate the assertions made by Ms Mysko.18 45 Ms Mysko has offered no basis on which it could be concluded that the judge erred in her evaluation of the evidence, findings of fact or conclusions of law. Indeed, the judge’s findings were the product of careful and reasoned evaluation of the evidence, which included assessments of the credibility and reliability of the various witnesses, as discussed above. 46 As ECS submitted, if there is no basis to displace the judge’s findings regarding adherence by ECS to its duties and obligations of safety and compliance, Ms Mysko’s complaints on appeal, insofar as they can be understood, fall away. Those complaints depend on the premise that ECS was not compliant, in material respects, with its obligations. 47 Many of the judge’s conclusions were based on findings of fact that were influenced by her Honour’s impressions of the credibility of the witnesses. Ms Mysko has not identified any basis for concluding that these findings were 18 [2023] SASC 11 at [397]. -- 13 of 14 -- [2023] SASCA 120 The Court 12 contrary to incontrovertible evidence or compelling inferences, or were otherwise glaringly improbable.19 Indeed, many of those findings were based upon contemporaneous documents. Our review of the matter indicates that the judge’s findings were not only available, but compelling. Nor has Ms Mysko established any other basis for finding error in the reasoning or conclusions of the judge. Conclusion 48 The appeal must be dismissed. 19 Fox v Percy (2003) 214 CLR 118 at [28]-[29] (Gleeson CJ, Gummow and Kirby JJ); [90] (McHugh J). -- 14 of 14 --