Super Retail whistleblower statement defamed company, court told

The Federal Court hearing involving two sacked former senior executives of Super Retail Group has heard allegations a statement put out by their lawyers defamed the retailer.

Former Super Retail executive-turned-whistleblower Rebecca Farrell and fellow former executive and whistleblower Amelia Berczelly with lawyer Michael Harmer.

Super Retail Group’s counsel has spent most of the second day of the Federal Court hearing involving two sacked former senior executives of the retailer hammering their lawyer in the witness box over allegations a settlement deal was never fully agreed to.

Super Retail counsel John Sheahan, KC, spent hours on Wednesday cross-examining Michael Harmer, chairman of Harmers Workplace Lawyers, asking him about his and his associates’ interactions with former Super Retail executives Rebecca Farrell and Amelia Berczelly over their sacking, whistleblower status and attempts to reach a deal with Super Retail.

Mr Sheahan argued that a statement issued by Harmers on behalf of Ms Farrell and Ms Berczelly in late April about their experience at Super Retail was “seriously defamatory” of Super Retail board members and became the grounds for the company to terminate their employment on May 3.

Sitting before Justice Michael Lee, Mr Harmer denied that he failed to inform his clients the public statement might have been defamatory as it wasn’t protected by whistleblower laws and this might have caused the deal with Super Retail to ultimately be pulled.

Mr Harmer disagreed with Mr Sheahan’s line of arguments.

There was also much disagreement between Mr Harmer and Mr Sheahan over which party – Super Retail or the two whistleblowers – first reneged on the terms of the proposed deal.

Mr Harmer told the court he believed that when Super Retail failed to live up to its agreements in the deal – of which details remain suppressed – then his clients also “departed from the terms of the deal”.

Justice Lee later interjected to ask Mr Harmer if you “shook hands on a deal” wouldn’t you then turn to your clients (Ms Farrell and Ms Berczelly) and say “listen sunshine, we reached a bargain, my responsibility is to put it in place”.

Later Justice Lee agreed to close the hearing to the public to hear questions and testimony that were expected to disclose suppressed material, only as it met a rare test of “extraordinary circumstances”.

Mr Sheahan asked Justice Lee to close the court as he was about to ask Mr Harmer questions that related to an alleged deal between Super Retail and Ms Farrell and Ms Berczelly.

Justice Lee said it was critical for courts of law “to operate openly” and that courts operated in open and not in secret, consistent with the notion of “open justice”.

“The open justice principle extends to the media being able to publish fair and full accurate reports of proceedings,” Justice Lee said. However, he later said this was an extraordinary circumstance where the court could be closed to the public as counsel for Super Retail had maintained he couldn’t continue to cross-examine Mr Harmer and further his client’s case without disclosing material that had been ordered suppressed.

“It is appropriate that for as short a period as is necessary in order to part from the principles of open justice the court will be closed.”

The case is continuing.