supreme court of queensland number: b brett …

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane NUMBER: b \ \ b

Plaintiff:

First Defendant:

Second Defendant:

Third Defendant:

Fourth Defendant:

Fifth Defendant:

Sixth Defendant:

Seventh Defendant:

Eighth Defendant:

Ninth Defendant:

BRETT WILLIAM HEYVVARD

AND

MACKAY REGIONAL COUNCIL

AND

DEIRDRE THERESE COMERFORD

AND

KEVIN JOHN CASEY

AND

CHRIS JOHN BONANNO

AND

LAURENCE GERARD BONA VENTURA

AND

FRANK ANTHONY GILBERT

AND

ALISON NICOLA JONES

AND

GREGORY JOHN MARTIN

AND

THERESA ANN MORGAN

CLAIM Filed on behalf of the Plaintiff Form 2, Version 2 Uniform Civil Procedure Rules 1999 Rule 2

ME_128019146_1 (W2007)

MinterEllison Level 22, Waterfront Place 1 Eagle Street Brisbane Q 4000 T:+61 7 3119 6340 F:+61 7 3119 1340

AND

Tenth Defendant: DAVID JOHN PERKINS

AND

Eleventh Defendant: PAUL FRANCIS STEINDL

AND

Twelfth Defendant: ROSS DOUGLAS WALKER

CLAIM

The plaintiff claims:

1. Damages for past economic loss in the sum of $128,264.44;

2. Damages for future economic loss (not including damages pursuant to clause 4 of the Contract) in the sum of $2,096,854.72;

3. Damages for future economic loss, being damages for the loss of a chance to have the Contract renewed pursuant to clause 4, in the sum of $891,162.50;

4. General compensatory damages in the amount of $376,500.00, for defamation, being an amount which reflects the seriousness of the imputations, the extent of publications, the hurt and embarrassment caused by the publications, and the maximum damages for non-economic loss provided for by s 35(1) of the Defamation Act 2005 (Qld);

5. Interest under s 58 of the Civil Proceedings Act 2011 (Qld); and

6. Costs.

The plaintiff makes this claim in reliance on the facts alleged in the attached Statement of Claim.

ISSUED WITH THE AUTHORITY OF THE SUPREME COURT OF QUEENSLAND

And filed in the Brisbane Registry on TM' February 2016:

To the defendants:

-

TAKE NOTICE that you are bii-§ued_by the plaintiff in the C7P Q

Court. If you intend to dispute this claim or wish to raise any

ME _128019146_1 (W2007)

MinterEllison Solicitors for the Plaintiff

18 February 2016

counterclaim against the plaintiff, you must within 28 days of the service upon you of this claim file a Notice of Intention to Defend in this Registry. If you do not comply with this requirement judgment may be given against you for the relief claimed and costs without further notice to you. The Notice should be in Form 6 to the Uniform Civil Procedure Rules. You must serve a sealed copy of it at the plaintiffs address for service shown in this claim as soon as possible.

Address of Registry: 415 George Street, Brisbane QLD 4000

If you assert that this Court does not have jurisdiction in this matter or assert any irregularity you must file a Conditional Notice of Intention to Defend in Form 7 under Rule 144, and apply for an order under Rule 16 within 14 days of filing that Notice.

If you object that these proceedings have not been commenced in the correct district of the Court, that objection must be included in your Notice of Intention to Defend.

PARTICULARS OF THE PLAINTIFF:

Name: Plaintiffs residential or business address:

Plaintiffs solicitors name: and firm name:

Solicitor's business address:

Address for service:

Telephone: Fax: E-mail address:

Signed:

Description:

Dated:

ME_128019146_1 (W2007)

Brett William Heyward 28 Myagah Road ASHGROVE QLD 4060

Daniel Williams MinterEllison

MinterEllison Level 22 Waterfront Place 1 Eagle Street BRISBANE QLD 4000

MinterEllison Level 22 Waterfront Place 1 Eagle Street BRISBANE QLD 4000

+61731196340 +61731191340 [email protected]

This claim is to be served on: of:

Mackay Regional Council c/- Hedy Cray Clayton Utz Level 28, Riparian Plaza, 71 Eagle Street, Brisbane, Queensland

and on: Deirdre Therese Comerford of: c/- Hedy Cray

Clayton Utz Level 28, Riparian Plaza, 71 Eagle Street, Brisbane, Queensland

and on: Kevin John Casey of: c/- Hedy Cray


and on: Chris John Bonanno of: e/- Hedy Cray


and on: Laurence Gerard Bonaventura of: c/- Hedy Cray


and on: Frank Anthony Gilbert of: c/- Hedy Cray


and on: Alison Nicola Jones of: e/- Hedy Cray


and on: Gregory John Martin of: c/- Hedy Cray


ME_128019146 j (W2007)

and on: Theresa Ann Morgan of: c/- Hedy Cray


and on: David John Perkins of: c/- Hedy Cray


and on: Paul Francis Steindl of: c/- Hedy Cray


and on: Ross Douglas Walker of: c/- Hedy Cray


ME_128019146_1 (W2007)

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane NUMBER:

Plaintiff: BRETT WILLIAM HEYWARD

AND

First Defendant: MACKAY REGIONAL COUNCIL

AND

Second Defendant: DEIRDRE THERESE COMERFORD

AND

Third Defendant: KEVIN JOHN CASEY

AND

Fourth Defendant: CHRIS JOHN BONANNO

AND

Fifth Defendant: LAURENCE GERARD BONA VENTURA

AND

Sixth Defendant: FRANK ANTHONY GILBERT

AND

Seventh Defendant: ALISON NICOLA JONES

AND

Eighth Defendant: GREGORY JOHN MARTIN

AND

STATEMENT OF CLAIM Filed on behalf of the Plaintiff Form 16 - RR.22, 146

MinterEllison Level 22, Waterfront Place 1 Eagle Street Brisbane Q 4000 T:+61 7 3119 6340 F:+61 7 3119 1340

ME_127995244_2 (W2007)

- 2 -

Ninth Defendant: THERESA ANN MORGAN

AND

Tenth Defendant: DAVID JOHN PERKINS

AND

Eleventh Defendant: PAUL FRANCIS STEINDL

AND

Twelfth Defendant: ROSS DOUGLAS WALKER

STATEMENT OF CLAIM

The claim in this proceeding is made in reliance on the following facts:

Part A The Parties

1. The Plaintiff:

(a) has been awarded the following academic awards:

(i) a Doctor of Philosophy degree in the field of inter-group negotiation and policy implementation from James Cook University;

(ii) a Master of Administration degree from Griffith University;

(ii) a Bachelor of Business (Accounting and Human Resource Management) degree from the University of Southern Queensland; and

(iv) an Associate Diploma in Environmental Health from Queensland University of Technology;

(b) is a Graduate of the Australian Institute of Company Directors;

(c) currently holds an appointment as an adjunct professor at Queensland University of Technology;

(d) was employed by the First Defendant as its Chief Executive Officer between 6 October 2015 and 2 November 2015;

(e) was in March 2012 appointed by the Governor in Council of the State of Queensland to the office of, or designation of, a Chief Executive Officer, pursuant to section 92 of the Public Service Act 2008 (Old);

ME_127995244_2 (W2007)

3

(I) between March 2012 and August 2012 held the office of, or designation of, Chief Executive Officer of the Public Service Commission, pursuant to the provisions of the Public Service Act 2008 (Qld);

(g) between August 2012 and September 2013 held the office of, or designation of, Chief Executive Officer of the Queensland Health Renewal Taskforce, Department of Health, pursuant to the provisions of the Public Service Act 2008 (Qld);

(h) between September 2013 and August 2015 held the office of, or designation of Director-General of the Department of Natural Resources and Mines;

(i) has held employment within the executive government of the State of Queensland and local governments in Queensland, including as:

(i) a Senior Executive Director, Workforce Strategy and Policy, in the Public Service Commission, between August 2010 and March 2012;

a Regional Executive Director, in the Department of Communities, between November 2002 and May 2006;

(iii) a Director, in the Department of Premier and Cabinet, and based in Cairns, between 1998 and 2002; and

(iv) a General Manager of Service Delivery, a Manager of Economic and Corporate Planning, and a Manager of Health Services, within the Cairns City Council, between 1995 and 1998.

2. The First Defendant (the Council) is a body corporate established, and or continued in its establishment, under the Local Government Act 2009 (Qld), that may sue, and be sued, in its corporate name.

3. At all material times, and under the provisions of the Local Government Act 2009 (Qld):

(a) the Second Defendant held the offices of councillor and mayor of the First Defendant;

(b) the Third Defendant held the offices of councillor and deputy mayor of the First Defendant; and

ME _127995244_2 (W2007)

4

(c) the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants each held the office of councillor of the First Defendant.

Part B The Pre-contractual Process

4. The Plaintiff became aware on or about 13 August 2015 that:

(a) the First Defendant was recruiting for a Chief Executive Officer; and

(b) the recruitment process was being managed by Mr Scott Horton, who was the Director of Client Development at recruitment firm u&u (Mr Horton).

Particulars

(i) Conversation between the Plaintiff and Ross Musgrove, Chief Executive Officer, Western Downs Regional Council;

(n) Conversation between the Plaintiff and various staff members of the Department of Natural Resources and Mines;

(iii) Observed an online job advertisement.

5. The Plaintiff applied for the position as the First Defendant's Chief Executive Officer in or about mid-August 2015 by submitting his curriculum vitae to Mr Horton.

6. The Plaintiff then participated in the following selection process:

(a) the Plaintiff participated in a telephone interview at 2.00 pm on 25 August 2015 with Mr Bruce Davidson, former Chief Executive Officer of the Noosa Shire Council, who was engaged by u&u to conduct screening interviews in order to shortlist candidates;

(b) after the Plaintiff was shortlisted in or about late August 2015 or early September 2015, the Plaintiff participated in IQ and emotional intelligence testing administered by u&u;

(c) the Plaintiff participated in an interview with the selection panel at 4.30 pm on 7 September 2015 at the First Defendant's premises at Sir Albert Abbott Administration Building, 73 Gordon Street, Mackay, in the State of Queensland. The selection panel was comprised of:

ME _127995244_2 (W2007)

5

(i) the Second Defendant;

(ii) the Third Defendant;

(iii) Ms Jude Munro, a former Chief Executive Officer of the Brisbane City Council; and

(iv) Mr Ken Vaheesan, the Chief Engineer of Queensland Urban Utilities;

(d) in or about early September 2015, security and reference checks in relation to the Plaintiff undertaken by u&u.

7. On or about 9 September 2015, the First Defendant offered to employ the Plaintiff as its Chief Executive Officer, subject to terms and conditions that were to be negotiated and agreed upon.

Particulars

(i) Telephone call from the Second Defendant to the Plaintiff on or about 9 September 2015.

8. On or after 10 September 2015, the Plaintiff ceased pursuing, or engaging in, activities to be considered for the following alternative employment opportunities:

(a) Chief Executive Officer, Industry Growth Centre, Mining Engineering and Technology Services sector;

(b) Director-General of Commerce, Western Australia;

(c) Chief Executive Officer, National Transport Agency, New Zealand;

(d) Chief Executive Officer, Townsville Hospital and Health Service;

(e) Chief Executive Officer, St Johns Ambulance; and

(f) Consultant, Deloitte.

9. Between 10 September 2015 and 13 September 2015, the Second Defendant, on behalf of the Defendants, negotiated the terms of employment with the Plaintiff by email and telephone.

ME_127995244_2 (W2007)

-6

Particulars

(i) Email from the Second Defendant to the Plaintiff sent 10 September 2015 at 3.09 pm.

(ii) Further particulars to be provided after disclosure.

10. During one or more telephone conversations between the Second Defendant and the Plaintiff between 9 September 2015 and 13 September 2015, the Second Defendant said to the Plaintiff words to the effect that:

(a) the Second Defendant was looking forward to the Plaintiff having a long association with the Council;

(b) 79 people had applied for the position, and the Plaintiff was deemed to be the standout candidate;

(c) the Second Defendant was excited about attracting the Plaintiff to Mackay, and, at the start of the selection process, was hoping that he would apply and be the successful candidate;

(d) the First Defendant needed stability, and a leader who could settle the place down and help rebuild a positive workplace culture; and

(e) the Second to Twelfth Defendants expected the Plaintiff to purchase a residential property in Mackay as an indication of the Plaintiff's intention to stay in the community.

11. At all material times, Ms Judith Himstedt was an employee and or agent of the First Defendant, and held the title of Acting Director Organisation Services, and later Industrial Relations Consultant (Ms Himstedt).

12. On or about 10 September 2015, the Second Defendant was a party to a telephone conversation with the Plaintiff, the subject of which included, amongst other things, the terms and conditions of the Plaintiff's prospective employment with the First Defendant.

13. During the telephone conversation described in the paragraph above, the Second Defendant informed the Plaintiff that Ms Himstedt would finalise negotiating the Plaintiff's terms of employment with the First Defendant on behalf of the First Defendant.

14. On 13 September 2013, the Plaintiff and Ms Himstedt met face to face at Ms Himstedt's house at Mt Gravatt East, Brisbane, to finalise the draft contract of

ME _127995244_2 (W2007)

-7 _

employment between the Plaintiff and the First Defendant (the Himstedt Meeting).

15. During the Himstedt Meeting:

(a) the Plaintiff asked Ms Himstedt questions about the inclusion of a probationary period in the draft contract, which had not been discussed in previous telephone conversations between the Plaintiff and the Second Defendant;

(b) the Plaintiff said to Ms Himstedt words to the effect that he was aware that probationary clauses had been removed from State Government contracts because management occasionally did not afford employees due process when dismissing them during probation, and a number of dismissed employees had been reinstated following successful unfair dismissal applications;

(c) the Plaintiff said to Ms Himstedt words to the effect that he expected that due process would be followed if any right to terminate his employment during a probationary period was to be exercised by the First Defendant;

(d) Ms Himstedt said to the Plaintiff words to the effect that the inclusion of a probation clause was standard practice in executive contracts, and that due process would be followed if any right to terminate the Plaintiffs employment during a probationary period was exercised, and she referred him to procedural steps set out in the draft contract to that effect.

16. After the discussion referred to in paragraph 15, the Plaintiff signed and entered into a contract of employment with the First Defendant pursuant to which the Plaintiff was appointed by the First Defendant as its Chief Executive Officer on certain terms and conditions (the Contract).

Particulars

(i) The terms of the Contract were wholly written and contained in a document entitled 'A Contract Between Mackay Regional Council and Their Chief Executive Officer'.

Part C The Employment

17. The Contract included the following express terms:

ME_127995244_2 (W2007)

3. TERM

3.1 Subject to clause 10, this Contract shall operate for a period offive (5) years commencing on 6 October 2015 and terminating on 5 October 2020.

3.2 The appointment is initially made for a qualifying period. This period will be a maximum of six (6) months.

3.3 At the conclusion of the first three (3) months of this qualifting period, a review will be conducted by the Mayor and Selection Panel who, if satisfied with the Employee's performance, may confirm the appointment of the Employee.

3.4 If the appointment is not confirmed at the end of this three (3) month period, the probation will continue for a further three (3) months.

3.5 If the appointment of the Employee is not confirmed at the end of this further three (3) month period for any reason, then this Contract expires at the conclusion of that period.

3.6 A one (1) week notice period will apply during the qualifying period only.

4. RENEWAL OF APPOINTMENT

4.1 At least seven (7) months before 5 October 2020, the Employee shall advise Council in writing if the Employee is seeking re-appointment to the position.

4.2 At least six (6) months before 5 October 2020, Council shall advise the Employee in writing of its intention to either advertise the position or offer the Employee re-appointment to the position and if so, on what terms.

4.3 At least five (5) months before 5 October 2020, the Employee shall advise if Council's offer (where an offer is made) is accepted.

4.4 In the absence of re-appointment (or appointment to another position), the Employee's employment terminates on and from 5 October 2020.

-8

ME_127995244_2 (W2007)

9

5. RESPONSIBILITIES

5.1 The Employee shall carry out the role, duties and responsibilities of Chief Executive Officer as set out in this Contract.

5.2 Without limiting clause 5.1, the Employee shall:

(a) satisfactorily carry out the responsibilities set out in the Position Description in Schedule A

(b) perform all duties necessary to accord with Schedule A

(c) take all necessary action to meet the performance criteria contained in the performance agreement

(e) comply with Council's resolutions and policies

adhere to any Code of Conduct approved by Council

(g) devote his whole time and attention during the business hours of Council to the responsibilities, duties and functions as hereinafter described and carry out such other instructions and directions in relation thereto as the Mayor may from time to time reasonably and lawfully require

6. PERFORMANCE REVIEW

6.1 The Employee and the Mayor shall sign a Performance Agreement within three (3) months of the commencement of this Contract and thereafter annually.

6.2 The Performance Agreement shall set performance measures for the Employee's key responsibilities contained in Schedule A.

ME_127995244_2 (W2007)

- 10 -

6.3 The Performance Agreement shall also identify strategic operational objectives and associated performance measures consistent with Council's corporate and operational plans.

6.4 The terms and conditions of the Performance Agreement shall be:

(a) as agreed between the parties with both parties being obliged to act reasonably and in good faith in seeking to reach such agreement; or

(b) in default of agreement, as reasonably determined by the Council.

6.5 An Action Plan shall be prepared which sets out how performance measures identified in the Performance Agreement for position responsibilities and strategic objectives are to be met.

6.6 Performance shall be monitored on at least a six (6) monthly basis and reviewed annually in the following manner:

(a) Council shall give the Employee at least seven (7) days' notice in writing that a Performance Review is to be conducted.

(b) The Performance Review is to be carried out by the Mayor, Deputy Mayor and two other Councillors.

(c) Council may engage the services of an external facilitator to assist in the Performance Review.

6.7 Within the month of the conclusion of a Performance Review, Council shall prepare and send to the Employee a statement which sets out:

(a) Council's conclusions about the Employee during the period the subject of the performance review

(12) any proposal of Council to vary the performance criteria as a consequence of the performance review

(c) any directions or recommendations made by Council to the Employee in relation to the Employee's future performance of the duties of the position.

ME _127995244_2 (W2007)

-11-

7. REMUNERATION

7.1 The Employee will receive the remuneration in Schedule B.

7.2 The Employee may request in writing at any time that the structure of the remuneration package be carried and Council shall not unreasonably refuse the request. Under no circumstances will such restructure involve any increase in the remuneration package unless Council agrees in writing as set out in Schedule B.

10. TERMINATION

10.1 This Contract may be terminated before 5 October 2020 in the event of any of the circumstances as specified in 10.1(a) to 10.1(e):

(a) By Council and the Employee agreeing in writing.

(b) By the Employee, with two (2) months' notice in writing.

(c) By Council with one (I) month's notice in writing or by the payment of one (1) month's pay in lieu of notice by Council, where the Employee does not meet the performance criteria in Schedule A or the terms of the Performance Agreement referred to in clause 6.

(d) By Council without notice if the Employee commits any act which would entitle an employer to summarily dismiss the Employee including:

a serious or persistent breach of any of the terms or conditions of the Contract.

(ii) dishonesty, fraud, wilful disobedience, gross misconduct.

(iii) wilful breach, non-observance, neglect or discharge of duties to Council to the reasonable requirements of Council. This also includes breach of confidentiality.

ME_I 27995244_2 (W2007)

- 12 -

(iv) disobedience to or neglect of lawful instructions or directions duly authorised.

(v) conviction for an offence precluding or inhibiting the further performance of duties under the Contract or that causes serious harm to the reputation of Council.

(vi) incapacity which prevents the Employee performing the duties outlined in this Contract.

in which case the Employee shall be entitled to payment of salary and benefits up to and including the date of termination or dismissal.

Schedule A

POSITION DESCRIPTION

Position: Chief Executive Officer

Name: Brett William Heyward

Reports to: Mayor

Accountable to: Mayor and Councillors

Performance criteria and an Action Plan based on this Schedule will be developed and agreed to between the Employee and the Mayor within three (3) months of the commencement of this Contract.

Schedule B

REMUNERATION

4

ME_127995244_2 (W2007)

- 13 -

The schedule operates on 6 October 2015 and remains in force unless varied in accordance with the provisions of the Contract or by agreement in writing between the parties.

(a) Salary Package

The remuneration package is $ 445,005- made up of the following components:

Cash Salary per annum $ 372 ,315- (ii) Employer Superannuation contributions $ 44,678- (iii) Leave Loading $ 5,012- (iv) Motor Vehicle Allowance $ 23,000-

Total Remuneration Package $ 445,005-

18. The Contract included the implied terms (the Implied Terms) that the Defendants:

(a) would exercise its powers under the Contract in good faith (the Good Faith Term);

(b) would not exercise its powers under the Contract capriciously or arbitrarily;

(c) would afford the Plaintiff procedural fairness and natural justice in exercising its powers under the Contract in relation to the Plaintiffs employment by the First Defendant generally; and

(d) would afford the Plaintiff procedural fairness and natural justice in exercising its power under the Contract to terminate the Plaintiffs employment with the First Defendant during any probationary period.

19. Each of the Implied Terms described in the paragraph above are implied in the Contract because:

(a) they are necessary to give business efficacy to the Contract;

(b) they are so obvious as to go without saying;

(c) they are necessary to give effect to the statements made by Ms Himstedt at the Himstedt Meeting;

ME_127995244_2 (W2007)

- 14 -

(d) they are necessary to give effect to the understanding or agreement, as to the way in which the First Defendant would exercise its powers to temiinate the employment of the Plaintiff during any probationary period under the Contract, which arose during the Himstedt Meeting;

(e) the class of the contract entered into, being an employment agreement, necessitates their implication; and

(f) the public character of the Contract, being one which was required to be entered into by section 194 of the Local Government Act 2009 (Old), necessitates their implication.

20. On 14 September 2013:

(a) the Second Defendant, on behalf of the First Defendant, proposed to the Plaintiff that clause 3 and Schedule 2 of the Contract be amended; and

(b) the Plaintiff agreed to the amendments (the First Variation).

Particulars

(i) Email from the Second Defendant to the Plaintiff;

(ii) Telephone discussion between the Second Defendant and the Plaintiff;

(iii) Email from the Plaintiff to the Second Defendant.

21. As a result of the First Variation, the Contract included the following express terms:

3. TERM

3.1 Subject to clause 10, this Contract shall operate for a period offive (5) years commencing on 6 October 2015 and terminating on 5 October 2020.

3.2 The appointment is initially made for a qualiffing period. This period will be for three (3) months.

3.3 At the conclusion of the three (3) months of this qualiffing period, a review will be conducted by the Mayor, Deputy Mayor and two other Councillors, who, if satisfied with the Employee's performance, will confirm the appointment of the Employee.

ME_127995244_2 (W2007)

-15-

3.4 If the appointment of the Employee is not confirmed at the end of the three (3) month period for any reason, then this Contract expires at the conclusion of that period.

3.5 A one (1) week notice period will apply during the qualifying period only.

Schedule B

REMUNERATION

The schedule operates on 6 October 2015 and remains in force unless varied in accordance with the provisions of the Contract or by agreement in writing between the parties.

(a) Salary Package

The remuneration package is $ 445,005- made up of the following components:

Cash Salary per annum $ 371,500-00

(ii) Employer Superannuation 6,501-25

(iv) Motor Vehicle Allowance 23,000-00

Total Remuneration Package $ 445,581-25

(b) Council will provide rental assistance of $ 415.00 per week from 28 September 2015 to 4 January 2016.

(c) Council will approve the employee salary sacrificing his wages to allow the employees wife and children to fly from Brisbane to Mackay and return and for the employee to fly from Mackay to Brisbane and return.

22. On 30 September 2015 the Plaintiff entered a general tenancy agreement with Marina Realty and Apartment Letting to lease a residential premises located at Unit 15, Regatta Beach, 11 Megan Place, Mackay Harbour in the State of Queensland (the Lease).

Particulars

ME_I 27995244_2 (W2007)

- 16 -

(i) General tenancy agreement dated 27 September 2015.

23. The Lease included the following express terms:

(a) the term of the Lease was from 29 September 2015 to 28 March 2016;

(b) the Plaintiff was required to pay a rental bond of $1,800.00;

(c) the Plaintiff was required to pay $900.00 per fortnight for rent; and

(d) the Plaintiff was required to pay for electricity, gas and phone supplied to the premises direct to the supplier.

24. On or about 29 September 2015:

(a) the Plaintiff proposed to Ms Himstedt, as agent for the First Defendant, to amend Schedule B clause (b) of the Contract to increase the Plaintiffs rental assistance from $415.00 per week to $450.00 per week (Proposed Amendment); and

(b) Ms Himstedt:

(i) agreed to the Proposed Amendment (the Second Variation); and

(ii) represented to the Plaintiff that the Second Variation did not need to be confirmed in writing and that the First Defendant would honour the verbal agreement.

Particulars

(i) Telephone discussion between the Plaintiff and Ms Himstedt, as agent for the First Defendant.

25. Between 6 October 2015 and 2 November 2015, the Plaintiff performed the role, duties and responsibilities of Chief Executive Officer of the First Defendant in accordance with the Contract.

26. The Plaintiff and the First and Second Defendant took no steps to develop and or agree to:

(a) a performance agreement pursuant to Part 6 and Schedule A of the Contract;

(b) a perfon-nance criteria pursuant to Part 6 and Schedule A of the Contract; or

ME_127995244_2 (W2007)

- 17 -

(c) a action plan pursuant to Part 6 and Schedule A of the Contract.

27. On or about 20 October 2015:

(a) the Plaintiff requested that the First Defendant pay rental assistance for the period 29 September 2015 to 26 October 2015 in the sum of $1,800.00, in accordance with Schedule B clause (b) of the Contract as amended by the Second Variation;

(b) Ms Himstedt, as agent for the First Defendant, represented to the Plaintiff that rental assistance would be paid in accordance with the Second Variation.

Particulars

(i) Email from the Plaintiff to Ms Madonna Iliffe, Executive Support Officer for Portfolio Councillors & Executive Officer, Office of the Mayor & CEO (Ms Iliffe).

(ii) Emails between Ms Iliffe and the First Defendant to be particularised after disclosure.

28. In or around late October 2015, the First Defendant:

(a) paid the Plaintiff the sum of $1,660.00 for rental assistance for the period 29 September 2015 to 26 October 2015; and

(b) refused to pay the Plaintiff the balance of the rental assistance payable to the Plaintiff under Schedule B clause (b) of the Contract, as amended by the Second Variation.

Particulars

(i) Emails between Ms Iliffe, the First Defendant and the Second Defendant to be particularised after disclosure.

29. On or about 2 November 2015, the First Defendant:

(a) paid the Plaintiff the sum of $415.00 for rental assistance for the period 27 October 2015 to 2 November 2015;

(b) refused to pay the Plaintiff the balance of the rental assistance payable to the Plaintiff under Schedule B clause (b) of the Contract, as amended by the Second Variation.

ME_127995244_2 (W2007)

- 18 -

30. On 27 October 2015, the Second Defendant convened a private meeting of the Council (the First Meeting).

31. The First Meeting was:

(a) a 'Councillor Forum' meeting regularly held by the First Defendant the day prior to the public Council meeting;

(b) held for the purpose of discussing the Council's affairs in advance of the public Council meeting;

(c) held at the First Defendant's premises at Sir Albert Abbott Administration Building, 73 Gordon Street, Mackay, in the State of Queensland;

(d) not convened or conducted in accordance with Chapter 8, Part 2, Division 1 and Division 3 of the Local Government Regulation 2012 (Old); and

(e) attended by:



(iii) the Fourth Defendant;

(iv) the Fifth Defendant;

(v) the Sixth Defendant;

(vi) the Seventh Defendant;

(vii) the Eighth Defendant;

(viii) the Ninth Defendant;

(ix) the Tenth Defendant;

(x) the Eleventh Defendant; and

(xi) the Twelfth Defendant.

32. At the First Meeting, each of the Third to Twelfth Defendants discussed:

(a) the Plaintiffs work performance; and or

ME_I 27995244_2 (W2007)

- 19 -

(b) the Plaintiffs employment with the First Defendant.

Particulars

(i) Particulars to be provided after disclosure.

33. On 31 October 2015, the Second Defendant convened a private meeting of the Council (the Second Meeting).

34. The Second Meeting was:

(a) held at the Second Defendant's private residence;

(b) not convened or conducted in accordance with Chapter 8, Part 2, Division 1 and Division 3 of the Local Government Regulation 2012 (Old); and

(c) attended by:












35. At the Second Meeting:

(a) each of the Third to Twelfth Defendants requested, or acquiesced in a request by other Defendants, that the Second Defendant terminate the Plaintiffs employment with the First Defendant; and

ME_I27995244_2 (W2007)

- 20 -

(b) the Second Defendant decided to terminate the Contract, and the Plaintiff's employment with the First Defendant.

36. At all material times:

(a) Ms Alexis Hill was employed by the First Defendant as the Director of Organisational Services, and was an agent of the First Defendant (Ms Hill); and

(b) Mr Scott McSwan (Mr McSwan) was:

(i) a legal practitioner authorised to practice in the State of Queensland pursuant to provisions of the Legal Profession Act 2007 (Qld);

employed both as a solicitor and as principal at McKays Solicitors, which is a legal practice, practising in the State of Queensland; and

( i) retained and authorised by the First Defendant and the Second Defendant to provide legal services, and act as a general agent for the First Defendant.

37. At approximately 12.10 pm on 2 November 2015, Ms Hill and Mr McSwan attended on the Plaintiff in the Plaintiff's office at the First Defendant's premises at the Sir Albert Abbott Administration Building, 73 Gordon Street, Mackay, in the State of Queensland, and handed the Plaintiff a letter, dated 2 November 2015 (the Termination Letter).

38. The Termination Letter:

(a) was signed by the Second Defendant; and

(b) purported to terminate:

(i) the Contract;

(ii) the Plaintiff's employment with the First Defendant; and

(iii) the Plaintiff's appointment as the Chief Executive Officer of the First Defendant.

39. In purporting to do the acts described in paragraph 38(b) above, the Termination Letter advised the Plaintiff that the First Defendant was

ME _127995244_2 (W2007)

- 21 -

exercising those terminations effective immediately, and without notice (the Purported Termination), for:

(a) a serious or persistent breach of any of the terms or conditions of the Contract;

(b) dishonesty;

(c) fraud;

(d) wilful disobedience;

(e) gross misconduct;

(f) wilful breach;

(g) non-observance;

(h) neglect or discharge of duties to Council to the reasonable requirements of Council; and

(i) disobedience to, or neglect of, lawful instructions or directions duly authorised.

40. The Termination Letter contained the following words:

The purpose of this letter is to confirm, the termination of your employment as Chief Executive Officer with Mackay Regional Council ("Council) effective immediately.

In accordance with clause 3.2 of your employment contract with Mackay Regional Council, your appointment was made with a qualiffing period of a maximum of 3 (three) months. Your qualiffing period was due to expire on 6 January 2016.

As per clause 10.1 (d) of your employment contract, Council has decided to terminate your employment without notice, for the circumstances stated in 10.1 (d) N, 10.1(d) (n), in the first sentence in 10.1 (d) (n), and 10.1 (d) (iv).

41. Upon being handed the Termination Letter by Ms Hill and Mr McSwan, and after reading it, the Plaintiff:

(a) was required to immediately collect his personal belongings and remove them in a box supplied by Mr McSwan for that purpose; and

ME_127995244_2 (W2007)

- 22 -

(b) was escorted from the First Defendant's premises by Ms Hill and Mr McSwan in front of others at the premises, including others employed or engaged by the Council.

42. The Purported Termination was ineffective because:

(a) there was no valid decision, or resolution, of the First Defendant to exercise the powers of termination described at paragraph 38(b); and

(b) the reasons asserted by the Ten-nination Letter for the termination described at paragraph 39 were falsely asserted.

Particulars

(i) The decision was not made at a meeting of the First Defendant conducted in accordance with Chapter 8, Part 2, Division 1 and Division 3 of the Local Government Regulation 2012 (Qld).

43. By the Purported Termination, the First Defendant repudiated the Contract, and that repudiation was accepted by the Plaintiff on 9 November 2015.

Particulars

(i) Letter from MinterEllison to the Second Defendant dated 9 November 2015.

44. The Purported Termination was purportedly ratified by the First Defendant at a special meeting held on 19 November 2015 (the Ratification).

Particulars

The special meeting was attended by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants;

At the special meeting, the First Defendant adopted a resolution in the following terms:

That the Council resolves to:-

a) Ratift the termination of the contract of employment of Dr Brett Heyward which was delivered to Dr Brett Heyward on 2 November 2015,'

ME _127995244_2 (W2007)

- 23 -

) The resolution was moved by the Ninth Defendant, seconded by the Fifth Defendant, and carried unanimously.

45. On 19 November 2015, the Second Defendant:

(a) sent a letter to the Plaintiff asserting reasons for the Purported Termination which were different from the reasons provided in the Termination Letter; and

(b) in the letter described in (a) above, purported to justify the termination of the Plaintiffs employment with the First Defendant on the basis of the probationary clause.

Particulars

(i) The Letter states:

As you know, under your contract of employment dated 11 September 2015 (Contract), you were employed subject to a 3 month probationary period.

During your probationary period, Council could terminate your employment on the payment of one weeks' notice.

Council decided to terminate your employment during the probationary period for a range of concerns which impact on the trust that Council could have in your continued employment.

Council did not do so lightly.

Council relied on your admissions regarding your conduct, including in our meeting on 26 October, but also meetings with Councillors on 28 October and 29 October. These admissions related to our concerns regarding your failure to keep Council informed, your failure to be full and frank with Councillors, but also with your Directors.

Your admissions in these meetings, demonstrated you accepted you had let Council down. You made a number of admissions including:

"mea culpa, mea culpa";

ME 127995244 (W2007)

- 24 -

(ii) "I will have to take one for the team";

(iii) "I'm prepared to take some bark off for for this one".

Council lost trust in your ability to be full and frank, not only with Councillors and your Directors but also trust in your ongoing ability to work with Councillors and Directors.

As a result, we accepted your admissions as misconduct as outlined in the termination letter.

If you say, as you now appear to say, that Council had no basis to terminate your employment, despite your admissions, Council by this letter, confirms that it has made payment to you, of one weeks' pay, under your Contract as notice for termination in the probationary period.

While Council does not agree with your public statements that you have no idea about the reasons for termination, you were employed on a probationary period and Council is entitled to have terminated you.

Part D The Misleading Conduct

46. Ms Himstedt's representations set out in paragraph 15:

(a) related to the terms or conditions of the Plaintiff's prospective employment by the First Defendant;

'(b) were liable to mislead the Plaintiff into believing that:

(i) the Plaintiff's employment by the First Defendant during the probationary period would only be terminated in accordance with the terms and conditions of the Contract; and

in the event that the Plaintiff's employment by the First Defendant was terminated during the probationary period, due process would be observed by each of the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants; and

ME_I27995244_2 (W2007)

- 25 -

(c) were likely to mislead the Plaintiff, in that the Plaintiff was likely to have acted upon, and relied upon, the representations set out in paragraph 15 in agreeing to:

(i) sign the Contract;

(ii) commence employment with the First Defendant as the First Defendant's Chief Executive Officer for a minimum period of 5 years;

(iii) relocate his, and his family's, residence to the city of Mackay, in the State of Queensland; and

(iv) cease the endeavours described in paragraph 8 that the Plaintiff was, at the time of signing the Contract, engaged in to obtain alternative employment; and

(d) did mislead the Plaintiff.

47. The Plaintiff relied on the representations set out in paragraph 15 as a material reason for:

(a) signing the Contract;

(b) commencing employment with the First Defendant as the First Defendant's Chief Executive Officer for a minimum period of 5 years;

(c) relocating his, and his family's, residence to the city of Mackay, in the State of Queensland; and

(d) ceasing the endeavours described in paragraph 8 that the Plaintiff was, at the time of signing the Contract, engaged in to obtain alternative employment.

48. The representations set out in paragraph 15 were false, because:

(a) the Plaintiff could not rely upon the representations set out in paragraph 15 as to the terms and conditions of his employment in relation to being terminated during the probationary period;

(b) due process was not followed, or attempted to be followed, by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants in relation to the termination of the Plaintiff's employment; and

r

ME_I27995244_2 (W2007)

- 26 -

(c) the Plaintiff's employment was terminated in the circumstances pleaded in circumstances other than for the causes set out in clause 10.1 of the Contract.

49. In the premises pleaded in paragraphs 11 to 16 inclusive, and paragraphs 46 to 48 inclusive, the First Defendant and the Second Defendant have contravened Schedule 2, section 31 of the Competition and Consumer Act 2010 (Cth).

Part E The Breach of Contract

50. The conduct of the First Defendant set out in paragraphs 30 to 39 inclusive and paragraph 42 was in breach of the Contract in that:

(a) the First Defendant had no grounds to terminate the Contract under clause 10.1(d)(i) because the Plaintiff had not committed a serious or persistent breach of any of the terms or conditions of the Contract;

(b) the First Defendant had no grounds to terminate the Contract under clause 10.1(d)(ii) because the Plaintiff had not engaged in dishonesty, fraud, wilful disobedience, or gross misconduct in the course of his employment by the First Defendant;

(c) the First Defendant had no grounds to terminate the Contract under clause 10.1(d)(iii) because the Plaintiff had not committed a wilful breach, non-observance, neglect or discharge of duties to the First Defendant to the reasonable requirements of the First Defendant; and

(d) the First Defendant had no grounds to terminate the Contract under clause 10.1(d)(iv) because the Plaintiff had not disobeyed or neglected any lawful instructions or directions duly authorised in the course of his employment with the First Defendant.

51. Further, or alternatively, the conduct of the First Defendant set out in paragraphs 30 to 39 inclusive and paragraph 42 was in breach of the Contract in that:

(a) the Plaintiff's performance had not been reviewed by the Second Defendant, Third Defendant and two councillors of the First Defendant, pursuant to clause 3.3 of the Contract as amended by the First Variation;

(b) the Second Defendant, Third Defendant and two councillors of the First Defendant had made no decision as to whether to confirm, or not

ME 27995244 _2 (W2007)

- 27 -

confirm, the Plaintiffs employment following a review of the Plaintiffs employment, pursuant to clauses 3.4 and 3.5 of the Contract as amended by the First Variation; and

(c) in the premises, the First Defendant had no right to terminate the Contract under clause 3 of the Contract as amended by the First Variation.

52. Further, or alternatively, the conduct of the First Defendant set out in paragraphs 30 to 39 inclusive and paragraph 42 was in breach of the Contract in that:

(a) by clauses 5.2(e) and (f) of the Contract, on their proper construction, the First Defendant was required to comply with the resolutions and policies and any Code of Conduct approved by Council in its dealings with the Plaintiff;

(b) under the First Defendant's policies and Code of Conduct, the First Defendant was obliged to afford the Plaintiff procedural fairness and natural justice;

(c) the First Defendant did not:

(i) provide the Plaintiff with prior notice of the grounds, or reasons, said to constitute a proper basis for the First Defendant to exercise its power to terminate the Contract;

(ii provide the Plaintiff with an opportunity to respond to any ) allegations regarding the Plaintiffs conduct;

i) provide the Plaintiff with an opportunity to provide reasons why ( the Contract ought not be terminated;

(iv) base the decision to terminate the Contract on conduct that fell within the grounds for termination set out on clause 10.1 of the Contract; and

(d) in the premises, the First Defendant denied the Plaintiff procedural fairness and natural justice in the Purported Termination and the Ratification.

53. Further, or alternatively, the conduct of the First Defendant set out in paragraphs30 to 39 inclusive and paragraph 42 was in breach of the implied tenris because:

ME_127995244_2 (W2007)

- 28 -

(a) the Second Defendant knew that the Plaintiff had not engaged in any of the conduct asserted in the Termination Letter as justifying the termination of the Contract;

(b) the assertions of the conduct asserted in the Termination Letter as justifying the ten-nination of the Contract was, to the knowledge of the Second to Twelfth Defendants, false; and

(c) it was a breach of the Good Faith Tenn for the Second to Twelfth Defendants, purportedly on behalf of the First Defendant, to terminate the Plaintiffs employment:

(i) for reasons which were known to be false; and

(ii) without resolving to do so in accordance with Chapter 8, Part 2, Division 1 and Division 3 of the Local Government Regulation 2012 (Qld).

Part F The Defamation

First Publication

54. On 2 November 2015, the First Defendant published a media release (the First Publication) entitled "CEO Contract Terminated" on the First Defendant's intemet site.

Particulars

(i) http://www.mackay.q1d.gov.au/about council/news_and media/ media releases/ceo contract terminated

55. The First Publication:

(a) contained statements:

(i) made by the First Defendant and the Second Defendant; and

(ii) concerning the Plaintiff;

(b) was authorised for publication by:



ME_127995244_2 (W2007)

- 29 -










(c) was comprised of the following words:

Mackay Regional Council has terminated the services of Chief Executive Officer Brett Heyward effective immediately.

Mayor Deirdre Comerford said it would be inappropriate to go into specifics, but the decision had the full support of councillors.

"My colleagues and I discussed the matter at length and felt this was in the best interests of the organisation and the community, " she said.

This council has achieved a number of goals in this current term and it is vitally important that we continue to work together in achieving outcomes for the community.

Cr Comerford acknowledged it was bitterly disappointing that the appointment of Mr Heyward didn't work out.

"Councillors and I are prepared to show strong, courageous leadership to do what is right for our community," Cr Comerford said.

Cr Comerford is hoping a replacement will be appointed quickly as there was a talented pool of well-credentialed short listed candidates identified during the recruitment process. Council hopes to be in a position to announce a replacement within coming weeks.

ME_127995244_2 (W2007)

- 30 -

"Council services and functions will continue as normal under our talented leadership group and committed workforce," Cr Comerford said.

56. The First Publication was republished on behalf of the First Defendant on 2 November 2013 in an email to undisclosed recipients with the subject line "Urgent Announcement".

57. The First Publication attached to the email referred to in the paragraph above also included the following words: "Editors' note: Given the sensitivity of this matter, the Mayor will make no further comment."

58. Parts of the First Publication were also republished by:

(a) the Daily Mercury newspaper on its website on 2 November 2015 in an article entitled "Mackay council CEO sacked after four weeks in the job";

Particulars

(i) http://www.dailymercury.com.au/news/ceo-sacked-after-four-weeks-job/2827177/

(b) the Brisbane Times on its website on 2 November 2015 in an article titled "Mackay council CEO sacked after four weeks in the job";

Particulars

(i) http://www.brisbanetimes.com.au/queensland/mackay-regional-council-sacks-ceo-brett-heyward-after-just-four-weeks-20151102-gkpOpg.html

(c) ABC News on its website on 3 November 2015 in an article titled "Mackay council sacks newly appointed CEO".

Particulars

( ) http://www.abc.net.au/news/2015-11-03/mackay-council-sackes-newly-appointed-ceo/6907480

59. In their natural and ordinary meaning, the words used in the First Publication, meant, and were understood to mean that:

ME_127995244_2 (W2007)

- 31 -

(a) the Plaintiff had engaged in serious misconduct justifying immediate termination of his employment by the First Respondent;

(b) all the councillors of the First Defendant were aware of the serious misconduct justifying the Plaintiff's termination; and

(c) having knowledge of the Plaintiff's serious misconduct, all of the Second to Twelfth Defendants inclusively supported the decision to terminate the Plaintiff's employment for serious misconduct.

60. Each of the imputations set out in the paragraph above is of, and concerning, the Plaintiff.

61. The First Publication was published:

(a) on the interne, and was published to, and accessible by, the world at large;

(b) to all recipients of the email described in paragraph 56 and57.

Particulars

(i) The details of the sender and recipients of the email will be provided after disclosure.

62. Each of the imputations set out in paragraph 59 is defamatory of the Plaintiff's good character and reputation.

63. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Defendants have not apologised for, retracted or corrected the contents of the First Publication.

Second Publication

64. On 2 November 2015 at 4.30 pm, the Second Defendant published an email to persons addressed as "Stakeholders", and with the subject line "Urgent Announcement" (the Second Publication).

65. The Second Publication:

(a) contained statements:

(i) made by the Second Defendant; and

(ii) concerning the Plaintiff.,

ME_I27995244_2 (W2007)

- 32 -

(b) was comprised of the following words:

Dear Stakeholders

I wish to advise that the Council has terminated the services of Chief Executive Officer Brett Heyward effective immediately.

It would be inappropriate to go into specifics, but the decision had the full support of councillors.

Councillors and I discussed the matter at length and felt this was in the best interests of the organisation and the community. The Council has achieved a number of goals in this current term and it is vitally important that we continue to work together in achieving outcomes for the community.

I acknowledge it is bitterly disappointing that the appointment of Mr Heyward didn't work out.

Councillors and I are prepared to show strong, courageous leadership to do what is right for our community.

I am hopeful a replacement will be appointed quickly as there was a talented pool o well-credentialed short listed candidates identified during the recruitment process.

In the interim Mr Jason Devitt will be the Acting CEO until a new CEO is appointed.

Council services and functions will continue as normal under our talented leadership group and committed workforce.

Kind regards Deirdre

66. In their natural and ordinary meaning, the words used in the Second Publication, meant, and were understood to mean that:

(a) the Plaintiff had engaged in serious misconduct justifying immediate termination of his employment with the First Respondent;

ME_I27995244_2 (W2007)

0

- 33 -

(b) all the councillors of the First Defendant were aware of the serious misconduct justifying the Plaintiffs termination; and

(c) having knowledge of the Plaintiffs serious misconduct, all of the Second to Twelfth Defendants inclusively supported the decision to terminate the Plaintiffs employment for serious misconduct.


68. The Second Publication was published to all recipients of the email described in paragraph 64.

Particulars

(i) The details of the "Stakeholders" will be provided after disclosure.

69. Each of the imputations set out in paragraph 66 is defamatory of the Plaintiffs good character and reputation.

70. The First Defendant and the Second Defendant have not apologised for, retracted or corrected the contents of the Second Publication.

Third Publication

71. On or about 6 November 2015, the Second Defendant published a statement verbally to Mr Michael Roche who holds the office of Chief Executive Officer of the Queensland Resources Council (the Third Publication).

72. The Third Publication:

(a) contained statements concerning the Plaintiff; and

(b) was comprised of words to the effect that:

the Plaintiff was damaged by his earlier termination as a chief executive officer within the executive government of the State of Queensland;

the Plaintiff was not the Brett Heyward that had applied for the job;

the Plaintiff had been terminated without a "deed of arrangement"; and

ME_I 27995244_2 (W2007)

- 34 -

(iv) the termination of the Plaintiff's employment was so necessary that the Second Defendant was prepared to damage her political reputation by the termination.

73. In their natural and ordinary meaning, the words used in the Third Publication meant, and were understood to mean, that:

(a) the Plaintiff was, as a prospective employee, damaged;

(b) the Plaintiff had not performed satisfactorily in the role of Chief Executive Officer of the First Defendant;

(c) the Plaintiff had engaged in behaviour or conduct of such a serious nature as to justify summary dismissal; and

(d) the Plaintiff had engaged in behaviour or conduct of such a serious nature that summary dismissal was necessary.


75. Each of the imputations set out in paragraph 73 is defamatory of the Plaintiffs good character and reputation.

76. The First Defendant and the Second Defendant have not apologised for, retracted or corrected the contents of the Third Publication.

Part G The Injurious Falsehood

77. In publishing the First Publication, the First Defendant and the Second Defendant have published a false statement (the False Statement).

78. The contents of the False Statement which are false are conveyed by the imputations that:

(a) the Plaintiff had engaged in serious misconduct justifying immediate termination of his employment by the First Defendant;

(b) all the councillors of the First Defendant were aware of the serious misconduct justifying the Plaintiffs termination; and

(c) having knowledge of the Plaintiff's serious misconduct, all of the Second to Twelfth Defendants inclusively supported the decision to terminate the Plaintiffs employment for serious misconduct.

ME_127995244_2 (W2007)

- 35 -

79. By issuing the First Publication as a media release, the First and Second Defendants have published the False Statement to the recipients of the media release.

Particulars

(i) The details of the recipients of the media release will be provided after disclosure.

80. The False Statements were republished by newspapers, and other news media, in terms set out in paragraph 58.

81. In publishing the First Publication:

(a) the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants intended to cause the Plaintiff harm; and

(b) harm was the natural and probable result of the conduct by the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants.

Part H The Conspiracy

82. The Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants (the Natural Defendants) engaged together in conduct (the Impugned Conduct) by:

(a) attending the Second Meeting, and knowingly participating in, or acquiescing in, the decision to terminate the employment of the Plaintiff;

(b) having authorised the issuance of the Termination Letter;

(c) having knowingly participated in, or acquiescing in, the decision to ratify the purported termination of the Plaintiff, which is described at paragraph44; and

(d) having authorised, or acquiesced in, the publication of the First, Second and Third Publications.

83. The Impugned Conduct was:

(a) the common purpose or object of the Natural Defendants;

ME_ 27992442 (W2007)

- 36 -

(b) in breach of the Contract; and

(c) in respect of paragraph82(d), undertaken or done in furtherance of the breach of the Contract.

84. In engaging in the Impugned Conduct, the Natural Defendants knew, or ought to have known, that the conduct was in breach of the Contract.

85. In engaging in the Impugned Conduct:

(a) the Natural Defendants had the intention to injure the Plaintiff in his employment, his good character and reputation, and his future employment prospects; and

(b) described in the sub-paragraph above, was done by the Natural Defendants with the sole, or predominant purpose of injuring the Plaintiff.

86. In engaging in the Impugned Conduct, the Natural Defendants were acting as agents and servants of the First Defendant.

Part I Loss and Damage

Misleading Conduct

87. Pursuant to the matters set out in Part D of these pleadings, the Plaintiff has suffered loss of an opportunity for the Plaintiff to obtain one of the alternative employment opportunities set out in paragraph 8.

Particulars

(i) Chief Executive Officer, Industry Growth Centre, Mining Engineering and Technology Services sector — between $350,000 and $411,000 salary package per annum;

(ii) Alternatively, Director-General of Commerce, Western Australia — salary package to be negotiated;

(iii) Alternatively, Chief Executive Officer, National Transport Agency, New Zealand — NZ$625,000 salary package per annum;

ME _127995244_2 (W2007)

- 37 -

(iv) Alternatively, Chief Executive Officer, Townsville Hospital and Health Service — salary package $348,000 per annum;

(v) Alternatively, Chief Executive Officer, St Johns Ambulance — salary package to be negotiated; and

(vi) Alternatively, Consultant, Deloitte — salary package to be negotiated.

Past and Future Economic Loss (Breach of Contract)

88. Pursuant to the matters set out in Part E of these pleadings, the Plaintiff has suffered the following past economic loss (the past economic loss):

(a) $85,730.77 for 12 weeks' salary payable under the Contract in respect of the period 3 November 2015 to 25 January 2016;

(b) $10,287.69 for 12 weeks' superannuation contributions payable under the Contract in respect of the period 3 November 2015 to 25 January 2016;

(c) $5,307.69 for 12 weeks' motor vehicle allowance payable under the Contract in respect of the period 3 November 2015 and 25 January 2016;

(d) $4,225.00 for 9 weeks' rental assistance payable under the Contract as amended by the Second Variation in respect of the period 3 November 2015 to 4 January 2016;

(e) $22,713.29 in relocation expenses.

Particulars of the relocation expenses

(i) Purchase of soft furnishings from Amart

$9,489.90

(ii) Purchase of fridge, washing machine and dryer from Harvey Norman

$2,717.00

(iii) Purchase of television, jug, toaster, and vacuum cleaner from Harvey Norman

$1,846.00

ME _127995244_2 (W2007)

- 38 -

(iv) Purchase of miscellaneous soft furnishings:

(A) Spotlight $399.66

(B) Woolworths $110.82

(C) Supercheap Auto $110.92

(D) Goodprice Phannacy $178.66

(E) Pillow talk $379.85

(F) Wine and whiskey glasses $89.90

(G) Target $170.00

(H) Target $221.50

(I) Amart $142.95

(J) Cushions and pillows $366.60

(K) Art work $443.95

(L) Art work $125.03

(v) Expenses associated with transporting the Plaintiff's motor vehicle from Brisbane to Mackay:

(M) Accommodation in $370.00 Rockhampton

(N) Meals at Cactus Jacks, KFC, The Deck Steakhouse, Sygenesh, Rockhampton

$145.00

Leagues Club and fish and chips Mackay

(0) Petrol in Rockhampton and $332.20 - Cannila

ME_127995244_2 (W2007)

- 39 -

(P) Motor vehicle detailing in $80.49 Brisbane and Mackay

(vi) Flights and associated costs:

(Q) For the Plaintiff and his family to Brisbane on 30 September

$1,068.00

2015;

(R) For the Plaintiff to Brisbane on $148.69 2 November 2015;

(S) For the Plaintiff to Mackay on 6 $306.87 November 2015

(T) For the Plaintiffs pre-purchased flight to Brisbane for Christmas

$320.10

(U) Taxis to and from the airports $125.00

(vii) Expenses associated with transporting the Plaintiff, his possessions and his motor vehicle from Mackay to Brisbane:

(V) Accommodation in Bundaberg $185.00

(W) Meals at Bargara Asian, Lickum, Cape Centro - Childers and Lighthouse Seafood

$206.10

(X) Petrol $125.40

(Y) Officeworks - packing material $47.70

(viii) Utilities at the Plaintiffs leased residential premises:

(Z) Telstra telephone $360.00

(AA) Origin gas $35.00

ME _1 27995244_2 (W2007)

- 40 -

(BB) Energex electricity $265.00

(ix) Bond clean of the Plaintiffs leased residential premises

$450.00

(x) The Plaintiff's rent for his residential premises for the period 5 January 2016 to 26 January 2016

$1,350.00

Total past economic loss: $128,264.44

89. On or around 6 October 2020, the Plaintiff would have exercised the option in clause 4 of the Contract to renew the Contract for a further operational period of two years.

90. In the premises, the Plaintiff has lost the opportunity to have the Contract renewed for a further period of two years.

91. Pursuant to the matters set out in Part E of these pleadings, and in paragraphs 89 and 90, the Plaintiff will suffer the following future economic loss (the future economic loss):

(a) $1,743,192.31 for four years and 36 weeks' salary payable under the Contract in respect of the period 26 January 2016 to 5 October 2020;

(b) $209,183.08 for four years and 36 weeks' superannuation contributions payable under the Contract in respect of the period 26 January 2016 to 5 October 2020;

(c) $107,923.08 for four years and 36 weeks' motor vehicle allowance payable under the Contract in respect of the period 26 January 2016 to 5 October 2020;

(d) $32,506.25 for five years' leave loading payable under the Contract in respect of the period 6 October 2015 to 5 October 2020;

(e) $4,050.00 for the balance of the Plaintiffs lease of a residence in Mackay for the period 27 January 2016 to 28 March 2016; and

(f) $891,162.50 (being two years of the annual salary of $445,581.25) after 6 October 2020 for the Plaintiffs loss of the opportunity to have

ME_127995244_2 (W2007)

- 41 -

his appointment as the Chief Executive Office of the First Defendant renewed, pursuant to clause 4 of the Contract.

Defamation

92. Pursuant to the matters set out in Part F of these pleadings, the Plaintiff has suffered (and will continue to suffer) damage as a result of:

(a) the Plaintiff being brought into ridicule and contempt;

(b) the Plaintiff's good character and reputation being injured;

(c) the Plaintiff enduring considerable hurt and embarrassment;

(d) the Plaintiff's professional standing being diminished in the eyes of prospective employers;

(e) the Plaintiff's ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a local government being significantly reduced;

(f) the Plaintiffs ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a State Government department or agency being significantly reduced; and

(g) the Plaintiffs ability to obtain, and retain, further employment generally being significantly reduced.

93. Pursuant to the matters set out in Part F of these pleadings, the Plaintiff claims compensatory damages for defamation:

(a) to vindicate the Plaintiff's good character and reputation;

(b) to compensate the Plaintiff for the considerable distress and embarrassment cause by the publication of the First, Second and Third Publications which gave rise to the imputations attributed to each of the First, Second and Third Publications;

(c) to reflect the extent of the First, Second and Third Publications and that the imputations of each of them may be further published;

(d) to compensate the Plaintiff for the damage done to the Plaintiffs ability to find further employment; and

ME_I27995244_2 (W2007)

- 42 -

(e) sufficient to convince a person to whom the imputations, arising from each of the First, Second or Third Publications were published to, or republished to, that the imputations are baseless.

Injurious Falsehood

94. Pursuant to the matters set out in Part G of these pleadings, and as a result of the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Defendants publishing the First Publication, the Plaintiff has suffered actual damage as a consequence of:

(a) the past economic loss resulting from the Contract being terminated;

(b) the future economic loss resulting from the Contract being temlinated;

(c) the damage done to the Plaintiffs good character and reputation;

(d) the Plaintiffs professional standing being diminished in the eyes of prospective employers;

(e) the Plaintiffs ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a local government being significantly reduced;

(f) the Plaintiffs ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a State Government department or agency being significantly reduced; and

(g) the Plaintiffs ability to obtain, and retain, further employment generally being significantly reduced.

Conspiracy

95. Pursuant to the matters set out in Part H of these pleadings, the Plaintiff has suffered (and will continue to suffer) damage as a result of:

(a) the past economic loss resulting from the Contract being terminated;

(b) the future economic loss resulting from the Contract being terminated;

(c) the Plaintiff being brought into ridicule and contempt;

(d) the Plaintiffs good character and reputation being injured;

(e) the Plaintiff enduring considerable hurt and embarrassment;

ME _1 27995244_2 (W2007)

- 43 -

(f) the Plaintiff's professional standing being diminished in the eyes of prospective employers;

(g) the Plaintiff's ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a local government being significantly reduced;

(h) the Plaintiff's ability to obtain, and retain, further employment at a level of seniority commensurate with the level of seniority of a chief executive officer of a State Government department or agency being significantly reduced; and

(i) the Plaintiff's ability to obtain, and retain, further employment generally being significantly reduced.

96. Pursuant to the matters set out in Part H of these pleadings, the Plaintiff claims compensatory damages:

(a) to compensate the Plaintiff for the past economic loss;

(b) to compensate the Plaintiff for the future economic loss;

(c) to vindicate the Plaintiff's good character and reputation;

(d) to compensate the Plaintiff for the considerable distress and embarrassment caused by the publication of the First, Second and Third Publications which gave rise to the imputations attributed to each of the First, Second and Third Publications;

(e) to reflect the extent of the First, Second and Third Publications and that the imputations of each of them may be further published;

(f) to compensate the Plaintiff for the damage done to the Plaintiff's ability to find further employment; and

(g) sufficient to convince a person to whom the imputations, arising from each of the First, Second or Third Publications were published to, or republished to, that the imputations are baseless, or made in breach of the law.

PRAYER FOR RELIEF

The Plaintiff claims the following relief against the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth Defendants:

ME_I27995244_2 (W2007)

- 44 -

Damages for past economic loss in the sum of $128,264.44;

2. Damages for future economic loss (not including damages pursuant to clause 4 of the Contract) in the sum of $2,096,854.72;

3. Damages for future economic loss, being damages for the loss of a chance to have the Contract renewed pursuant to clause 4, in the sum of $891,162.50;

General compensatory damages in the amount of $376,500.00, for defamation, being an amount which reflects the seriousness of the imputations, the extent of publications, the hurt and embarrassment caused by the publications, and the maximum damages for non-economic loss provided for by s 35(1) of the Defamation Act 2005 (Qld);

5. Interest under s 58 of the Civil Proceedings Act 2011 (Qld); and

6. Costs.

Signed:

Description: MinterEllison Solicitors for the Plaintiff

Dated: 18 February 2016

This pleading was settled by Mr RW Haddrick of Counsel.

ME_I27995244_2 (W2007)

supreme court of queensland number: b brett …

Documents