This included the “intimate relationship” between CEO Anthony Heraghty and chief human resources officer Jane Kelly, which the Harmers statement claimed has “carried significant conflicts of interest”.

While they had not yet been named at that stage, the whistleblowers included SRG’s former head of legal, Rebecca Farrell, who was terminated a week later. Farrell and her colleague Amelia Berczelly, who was also terminated, have brought a suit for specific performance against SRG.

It was published in response to a statement made by SRG on the Australian Securities Exchange (ASX) on the previous Friday, in which the major retail group said it was expecting “workplace litigation” from two then-unnamed employees for an alleged claim between $30 and $50 million.

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On Wednesday (11 December), Harmer said the existence of the firm’s statement was being negotiated with SRG as part of an alleged workplace settlement. The existence of this settlement is up for debate, with Farrell and Berczelly claiming it became enforceable from 6 May.

While his clients were not prepared to take down the statement, Harmer said he had a discussion with Sonia Millen at Allens – the representative for SRG – about either rewording the statement or issuing a “unilateral” one that would “make it clear SRG disputed” the claims.

The court was told this position changed by the final version of the settlement and that it was up to Harmers to remove it from its website.

Asked by Justice Michael Lee why this was not done – and particularly because Harmers believed the agreement was settled on 6 May – Harmer said he had been waiting for “obligations around confidentiality, releases and non-disparagement to be embodied in a deed in standard terms”.

Pushed further by Justice Lee on whether he believed he had no obligation to do anything until this deed was signed, Harmer responded only with: “We are of the view that the agreement had been reached.”

This was supported by opening submissions from Farrell and Berczelly’s counsel, Shane Prince SC, who said that after three days of discussions, Harmer and Millen came to a “solicitor’s handshake” agreement.

It was not until the following week, when the deed was sent over, that Harmer realised SRG was allegedly not meeting its side of the bargain. The exact details of this are covered under a suppression order.

Questioned again by SRG’s counsel, John Sheahan KC, on why the statement was still up on the website after the “solicitor’s handshake”, Harmer said: “[There was] a failure by SRG to comply with the agreement reached, and as a result, both parties departed from the agreement.”

At first, Harmer maintained the statement was published under a protected disclosure, despite warnings from Allens before it went online.

In a pre-trial hearing back in October, Sheahan accused Harmer of encouraging Farrell and Berczelly to authorise the publication of the statement, knowing there would be “serious ramifications”.

Sheahan repeated this again on Wednesday, telling Harmer he must have been aware the statement was not a protected disclosure and “may have caused them substantial loss on account of their termination”.

“I’m aware that’s the asserted position of SRG, but we strongly disagree with it,” Harmer said in response.

Harmer was then pressed on whether he thought his firm should take any responsibility for his client’s failure to appreciate that the statement was not a protected disclosure, but Harmer maintained he does not.

“The publication of the statement was in no way contingent on whether it was a protected disclosure, a public disclosure or any kind of disclosure.

“There was a number of measures that were being taken and considered to be, in any event, protected … and it would have gone ahead regardless,” Harmer said.

Later in the cross-examination, Justice Lee interjected again to ask Harmer why he had not documented that the agreement had been signed and then taken the necessary steps to uphold his part of the bargain.

“You shook hands on a deal, [so] wouldn’t you say to our clients, listen sunshine, we reached a bargain, our responsibility is to put it in place, I’ve given my word?” Justice Lee questioned.

“When SRG departed from the terms of the deal, our instructions were to pushback … and our clients also departed from the terms,” Harmer said.

As part of that pushback, Harmer told the court that Farrell and Berczelly demanded “increased protections, which was part of what arose from the gross mistrust when Allens, on behalf of SRG, put forward a deed that did not [match] the terms of the deal”.

Returning to an amended deed sent to Allens, Harmer surprised Sheahan by admitting he had not read it and had “no recollection of specifically approving the terms of this email”.

Harmer explained that he often dealt with “around 100 cases at a time” and his involvement in matters “at any particular time depends on prioritisation of matters, so that’s why I may not have been involved, and I do not recall having any prior sign off at that time”.