FEDERAL COURT OF AUSTRALIA
Walker v Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited)
[2006] FCAFC 101
CONTRACT – construction – reconciliation of standard form and special clauses
DAMAGES – where contract of employment repudiated – where provision for termination without cause
DAMAGES – where evidence of consequential loss and damage unchallenged
Walker v Salomon Smith Barney Securities Pty Ltd & Anor [2003] FCA 1099 related
Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 varied
Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1866 varied
Amann Aviation Pty Limited v Commonwealth (1990) 22 FCR 527cited
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20distinguished
China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 cited
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64applied
Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 cited
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 cited
Godecke v Kirwan (1973) 129 CLR 629 cited
Hume Steel Limited v The Attorney General for Victoria (1927) 39 CLR 455 applied
Karaguleski v Vasil Bros & Co Pty Ltd [1981] 1 NSWLR 267 cited
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451cited
Rawson v Hobbs (1961) 107 CLR 466cited
Re Theodorou [1993] 1 Qd R 588 cited
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130applied
Torr & Torr Realty Pty Ltd v John Lockrey Pty Ltd (1994) 6 BPR 13,749cited
DAVID WALKER v CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA SECURITIES PTY LIMITED)
VID 77 OF 2006
CITIGROUP GLOBAL MARKETS AUSTRALIA HOLDINGS PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA PTY LIMITED) v DAVID WALKER
VID 233 OF 2006
GYLES, EDMONDS AND GREENWOOD JJ
23 JUNE 2006
SYDNEY VIA VIDEO LINK TO MELBOURNE (HEARD IN MELBOURNE)
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 77 OF 2006 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
DAVID WALKER APPELLANT
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AND: |
CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA SECURITIES PTY LIMITED) RESPONDENT
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JUDGES: |
GYLES, EDMONDS AND GREENWOOD JJ |
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DATE OF ORDER: |
23 JUNE 2006 |
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WHERE MADE: |
SYDNEY VIA VIDEO LINK TO MELBOURNE (HEARD IN MELBOURNE) |
THE COURT ORDERS THAT:
The appeal be stood over generally to enable counsel for Walker to bring in short minutes of order to give effect to this judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 233 OF 2006 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
CITIGROUP GLOBAL MARKETS AUSTRALIA HOLDINGS PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA PTY LIMITED) APPELLANT/CROSS-RESPONDENT
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AND: |
DAVID WALKER RESPONDENT/CROSS-APPELLANT
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JUDGES: |
GYLES, EDMONDS AND GREENWOOD JJ |
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DATE OF ORDER: |
23 JUNE 2006 |
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WHERE MADE: |
SYDNEY VIA VIDEO LINK TO MELBOURNE (HEARD IN MELBOURNE) |
THE COURT ORDERS THAT:
The appeal and cross-appeal stand over generally to enable counsel for Walker to bring in short minutes of order to give effect to this judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 77 OF 2006 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
DAVID WALKER APPELLANT
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AND: |
CITIGROUP GLOBAL MARKETS AUSTRALIA PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA SECURITIES PTY LIMITED) RESPONDENT |
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 233 OF 2006 |
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
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BETWEEN: |
CITIGROUP GLOBAL MARKETS AUSTRALIA HOLDINGS PTY LIMITED (FORMERLY KNOWN AS SALOMON SMITH BARNEY AUSTRALIA PTY LIMITED) APPELLANT/CROSS-RESPONDENT
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AND: |
DAVID WALKER RESPONDENT/CROSS-APPELLANT
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JUDGES: |
GYLES, EDMONDS AND GREENWOOD JJ |
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DATE: |
23 JUNE 2006 |
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PLACE: |
SYDNEY VIA VIDEO LINK TO MELBOURNE (HEARD IN MELBOURNE) |
REASONS FOR JUDGMENT
THE COURT:
Introduction
1 These appeals relate to a proceeding in which Mr David Walker was the applicant and Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited, to be called ‘NatWest’ for reasons which will appear) was the first respondent and Citigroup Global Markets Australia Holdings Pty Limited (formerly known as Salomon Smith Barney Australia Pty Limited, to be called ‘Citigroup Australia’) was the second respondent. There was a claim against NatWest for breach of contract and against both NatWest and Citigroup Australia for breach of ss 52 and 53B of the Trade Practices Act 1974 (Cth) (TPA).
2 The primary judge conducted three hearings and published three judgments on aspects of the controversy. The first, delivered on 10 October 2003, determined the question of liability (Walker v Salomon Smith Barney Securities Pty Ltd & Anor [2003] FCA 1099 (Walker No 1); the second, delivered on 23 November 2005, then separately assessed damages (Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1678 (Walker No 2)); and the third, delivered on 19 December 2005 dealt with interest, costs and final orders (Walker v Citigroup Global Markets Pty Ltd [2005] FCA 1866 (Walker No 3)).
3 On 22 May 2002, the associate to the primary judge advised the parties, as a result of an inquiry by them, that ‘our records in Chambers indicate that the issues of liability and quantum have been split’ with the issue of liability to be determined first and ‘should it be necessary to make a formal order splitting the two issues, such an order can be made at the case management conference to be held before Registrar Efthim this coming August, or at some other stage convenient to the parties prior to the hearing’. However, it seems no application was made by either party for a formal order for ‘the decision of any question separately from other questions’ pursuant to O 29 r 2 of the Federal Court Rules.
4 Two primary orders were made in Walker No 3, following the decisions in principle in Walker No 2. First, that there be judgment for Walker against NatWest for damages of $22 917.00 together with interest of $18 649.00 arising out of the repudiation by the NatWest on 20 February 1998 of a contract of employment made on 20 January 1998 with Walker. Secondly, that there be judgment for Walker against Citigroup Australia for damages of $721 113.35 together with interest of $586 806.00 in respect of two representations made by Citigroup Australia in contravention of s 52 of the TPA. The first consisted of a representation to Walker on 13 February 1998 that after the purchase by Citigroup Australia of NatWest, Walker would be employed by Citigroup Australia on the same terms and conditions as had been agreed in the contract of employment between Walker and NatWest. The second was a representation on 20 February 1998 that positions were available to Walker in Citigroup Australia’s Corporate Finance Department and further that it would be likely that a position would be offered to Walker.
Walker’s appeal – contract damages
5 Walker appeals against Walker No 2 and Walker No 3 as to the assessment of damages on the contract count.
6 Walker contends that the terms of the contract of employment with NatWest, which was found to have been formed in Walker No 1, gave him a guarantee of employment until at least the beginning of calendar year 1999. Accordingly the first limb of the damages calculation that was designed to put him in the position he would have enjoyed but for the breach ought to have been $479 167.00 calculated as 10 months salary to 31 December 1998 at $275 000.00 per annum plus a bonus of $250 000.00 together with certain other miscellaneous amounts. Walker further contends that, consistent with a proper application of the principle established in Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 92, the second limb of the damages assessment should have included a component based on the assumption that, by reason of Walker’s skills, standing and expertise, he would have continued in employment with NatWest until 30 June 2003. Walker asserts that he lost the chance of earning a continuing salary for the years 1999 and beyond at $300 000.00 per annum and bonuses each year consistent with comparative bonuses paid to executives of NatWest during the period in question. The total for the four calendar years 1999 to 2002 is said to be $2 137 156.00 and for the six months to 30 June 2003, $437 541.00 yielding a total of $2 574,707.00. In the period in question, Walker received earnings of $84 859.00 resulting in a potential loss of income of $2 489 848.00. Walker contends that the chance of employment continuing to 30 June 2003 was not less than a 75 per cent and accordingly, applying the discount of 25 per cent, the true measure of the lost chance is $1 867 836.00.
7 NatWest says that in assessing the damages flowing from the breach, the primary judge was correct in Walker No 2 in having regard to the least burdensome consequence of the breach for NatWest which, properly assessed, took into account the right and entitlement of NatWest to bring the contract to an end on one month’s notice. NatWest contends that, having regard to the evidence as to the circumstances which led it to withdraw the offer of employment, NatWest would not have continued to engage Walker and would have exercised the right conferred by the clause to bring the contract to an end on one month’s notice. Accordingly, NatWest contends that the primary judge correctly assessed the damages on the basis of one month’s entitlement to remuneration being $22 917.00.
Citigroup Australia’s appeal
Loss from misleading and deceptive conduct
8 Citigroup Australia appeals against Walker No 2 and Walker No 3 concerning the assessment of Walker’s loss from the contraventions of s 52 found against it in Walker No 1. It contends that the primary judge ought to have reduced the amount of the damages awarded against it by the amount of the damages awarded against NatWest for breach of contract otherwise Walker is securing double recovery. Walker’s original position was that the claim for recovery of the reliance loss is an entirely independent statutory cause of action which compensates him for a species of loss that has no relevant relationship with the claim for damages against NatWest.
9 Citigroup Australia also contends that the primary judge erred in the manner in which the amounts earned in mitigation were treated in the calculation of damages. It contends that the primary judge ought to have valued the lost chance of future earnings at ABN AMRO Australia Hoare Govett (Securities) Ltd (ABN AMRO) by taking the gross potential earnings of $2 567 100.00, calculating 33 per cent of those earnings and then taken account of the alternative receipts across the period. Such a calculation would result in a reliance loss of $428 834.00 rather than $721 113.35 as awarded. That loss would then be subject to a reduction or extinguishment once account is taken of the damages recovered against NatWest for breach of contract.
Walker’s cross-appeal against Citigroup Australia
10 Walker cross-appeals from the assessment of his loss from the misleading and deceptive conduct. Walker says he suffered a reliance loss that includes the loss of the chance of continued employment with ABN AMRO. The Notice of Cross-Appeal asserts an entitlement to prospective earnings during the period 1998 to 30 June 2004 at a higher rate than was found. However, ultimately, Walker’s submissions on the appeal substantially accord with the reasoning of the primary judge.
11 Further, Walker contends that her Honour’s assessment of $5 000.00 as compensation for damage to his reputation and career prospects, to his marriage, and for distress and vexation arising out of Citigroup Australia’s conduct was manifestly inadequate in view of his unchallenged evidence.
Res judicata
12 A question arises as to the effect of the judgment in Walker No 1 in respect of the findings which were made and, in particular, whether they give rise to a res judicata or issue estoppels for the purposes of the later judgments in Walker No 2 and Walker No 3.
13 Walker contends that Walker No 1 determined in a final way all matters going to the question of whether Walker and NatWest entered into a contract of employment and the terms of that contract so giving rise to a res judicata or issue estoppel. Walker says that the following findings (amongst others) were made: first, that a contract was made on 20 January 1998 when Walker communicated his acceptance to NatWest’s agent of the terms and conditions of NatWest’s letter of offer of 12 January 1998 (coupled with a confidentiality obligation pending receipt of a redundancy payment by ABN AMRO) and second, that the terms of the contract comprised that document and a term that Walker would be employed by NatWest until at least the 1999 calendar year among other terms described as the ‘third representation’ pleaded at [12] of the Statement of Claim.
14 Walker says that by reason of a res judicata or issue estoppel it was not open to NatWest to contend that the contract entitled NatWest to bring the contract to an end on one month’s notice. The right to rely on the termination provision is said to be inconsistent with an express finding in Walker No 1. A question therefore arises as to whether the judgment in Walker No 1 is final in the necessary sense.
Delay
15 One further issue arises. Walker contends that the inconsistency of treatment as to the entitlement of NatWest to terminate the contract on one month’s notice between judgments is a function of the delay in delivering the judgments.
Background FACTS AND THE ISSUES FOR TRIAL
16 There is no appeal against the findings of primary fact. The following account of the background facts is taken substantially from the judgments in Walker No 1 and Walker No 2.
The contractual events
17 In August 1997, Walker was approached by a head hunter, Ms Lancaster, and asked whether he would consider taking up a position as a Senior Resource Analyst within the Research Department of the Equities Division of NatWest. At this time he was an Executive Director and Head of Research at ABN AMRO, a company which he had joined in 1995.
18 Up to early 1998, the stockbroker County NatWest Securities Australia Limited (NatWest), was owned by NatWest Markets Australia Limited a wholly owned subsidiary of National Westminster Bank Plc. In February 1998, Salomon Smith Barney Australia Pty Limited acquired the shares in NatWest and on 1 April 1998 renamed NatWest, Salomon Smith Barney Australia Securities Pty Limited. Salomon Smith Barney Australia Securities Pty Limited was a subsidiary of the United States stockbroking corporation, Salomon Smith Barney Holdings Inc. That corporation is a subsidiary of Citigroup Inc, a large United States bank. In 2003, Salomon Smith Barney Australia Securities Pty Limited changed its name to Citigroup Global Markets Australia Pty Ltd and Salomon Smith Barney Australia Pty Limited changed its name to Citigroup Global Markets Australia Holdings Pty Ltd. It is therefore convenient to describe Citigroup Global Market Australia Pty Limited as ‘NatWest’ and Citigroup Global Markets Australia Holdings Pty Limited as ‘Citigroup Australia’.
19 During the course of August, September and November 1997, Walker engaged in discussions with Lancaster, Mr Robert Thomas the Managing Director of the Equities Division of NatWest and Mr Mark Fulton the Head of Research at NatWest who reported to Thomas, concerning the terms and conditions upon which Walker might enter into a contract of employment with NatWest.
20 A preliminary meeting took place on 12 August 1997 between Walker, Lancaster and Thomas in relation to a possible appointment. At this meeting, Walker explained that a substantial bonus was due to him from ABN AMRO on 15 January 1998 and that in order to receive the bonus he could not resign before that date.
21 On 10 September 1997, Walker met with Lancaster, Fulton and three others from NatWest. Walker discussed the role he might assume in the Resource Department of NatWest’s Equities Division, focusing on RTZ or BHP. Walker raised with Fulton and Lancaster at a separate meeting that day rumours concerning the sale of National Westminster Bank’s Australian operations. Fulton said a sale was on the cards but that this would not affect NatWest’s interest in recruiting him. No terms of remuneration were discussed at this meeting.
22 On 1 October 1997, National Westminster Bank made a public announcement of its intention to sell its Australian operations. Fulton confirmed to Lancaster that there would be a position for Walker following the sale and that he would contact Walker.
23 On 5 November 1997, Walker met with Fulton and the head of NatWest’s Equities Division in Melbourne. Walker also had a further separate meeting with Fulton. Fulton told Walker that NatWest was ‘very impressed’ with his references including those from some large institutions and overall Fulton was ‘more than pleased with responses’ from the referees. Walker told Fulton that he would not leave his position at ABN AMRO without a binding contract for a position at NatWest. Walker held a senior position at ABN AMRO and was well remunerated. Fulton gave Walker an assurance that the position intended for him with NatWest would continue even if there was a change in the ownership of NatWest. At the meeting, Fulton seriously explored the nature of Walker’s possible research role, especially in relation to BHP, and conceded in evidence that there had ‘never been a question in [his] mind that Mr Walker was highly qualified both in a technical and academic sense’.
24 Between 5 November and December 1997, Fulton told Walker that although NatWest had recruited another analyst to be responsible for the resource company RTZ, NatWest remained interested in appointing Walker as an analyst focused upon issues affecting BHP. Fulton spoke further with Walker in December 1997 approaching him with ‘vigour’ and ‘urgency’ in relation to the prospective position with NatWest.
25 On Fulton’s recommendation, Thomas signed a letter of offer dated 16 December 1997 prepared at Fulton’s direction which offered Walker the position entitled ‘Resource Analyst’. This letter, described in the proceedings as the ‘first letter of offer’ was sent by facsimile by Lancaster to Walker at ABN AMRO on 6 or 7 January 1998. The letter nominated an annual salary upon commencement of $275 000.00 and a guaranteed minimum bonus of $250 000.00 for the 1998 year (to be paid in February 1999). Walker sought a guarantee that in his second year at NatWest he would be elevated to the title of ‘Director’. Walker annotated the letter by hand to indicate those things he wanted and on 7 January 1998 returned a copy of the annotated letter to Lancaster by facsimile. Lancaster sent the annotated draft (with her own additional comments) to Fulton. Thomas recollected that Fulton had spoken previously to him about the directorship issue and that Fulton was comfortable in agreeing to that matter.
27 On 6 January 1998, ABN AMRO notified Walker that his 1997 bonus would not be paid until 15 February 1998, a month later than the expected 15 January 1998 date. Walker advised Lancaster on 6 January 1998 of this development and told her that he would not resign until the ABN AMRO bonus was paid unless NatWest was willing to pay out the lost bonus. He therefore said he could not start in the new role with NatWest until 15 March 1998. On the same day, Fulton told Lancaster that he agreed to the 15 March 1998 start date. He then went further by suggesting that Walker could sign the contract and lodge it with Lancaster who would forward it to NatWest when Walker had completed all necessary arrangements with ABN AMRO. Fulton told Walker that all discussions and any contract Walker might enter into with NatWest would remain confidential, consistent with Walker’s requirements, until Walker was ‘clear of ABN AMRO and [his] existing contractual obligations’. Fulton added that while the sale of NatWest was imminent, Walker would be part of the resources team after the sale was completed. Walker and Fulton agreed that Walker would commence with NatWest on 15 March 1998 or on an earlier date if possible.
29 It was then agreed between Lancaster, Walker and Fulton that Walker would return a signed copy of any contract to Lancaster who would acknowledge its receipt to Fulton and release it to NatWest only when the need for confidentiality had passed. Walker and Fulton therefore understood by 12 January 1998 that there would be a binding contract once both parties signified their agreement by signing and Walker had returned a signed copy to Lancaster who would then inform NatWest once she had received it.
30 On 13 January 1998, Walker received a letter by courier dated 12 January 1998 (described by the primary judge as the ‘substantive letter’) setting out the revised terms and conditions of employment which were referred to in the proceedings as the ‘second letter of offer’. The first two pages of that letter set out the substance of NatWest’s offer. It was signed by Thomas at the bottom of page 2. The remaining four pages contained standard form terms described as Executive Conditions of Employment (the Conditions). At the end of the Conditions, provision was made for the offeree to sign, date and nominate a proposed joining date. The second letter of offer provided for a salary of $275 000.00 and a guaranteed bonus of $250 000.00. It offered Walker ‘the position of Senior Resource Analyst covering BHP and related entities within [the] research area’. It provided that Walker would receive the title of ‘Director of Research’ at the completion of the 1998 year.
31 On 14 January 1998, Walker told Lancaster that the terms were acceptable. In Walker No 1 the primary judge noted at [63] ‘As the applicant’s counsel observed in final written submissions, the parties were negotiating “a long-term position, which the Applicant was entitled to expect to hold for at least one year”’.
32 On 15 January 1998, Walker met with Thomas, Fulton and Lancaster. Walker was handed what appeared to be a copy of the first two pages of the letter he had received on 13 January 1998. This copy has been referred to throughout the proceedings as the ‘third letter of offer’. During the course of the appeal, counsel for Walker tendered a copy of Exhibit ‘DW6’ to the affidavit of Walker sworn 9 February 2000 which consists of a photocopy of a two page letter dated 12 January 1998, signed by Thomas and countersigned by Walker. That exhibit and letter form part of the appeal papers. It is a true copy of the third letter of offer. The letter makes reference to attached ‘Executive Conditions of Employment’ and contains a small footnote reference to ‘attach’, however, the Conditions were not attached to the letter. Although the primary judge makes reference to a ‘fourth letter of offer’, it is common ground between the parties that there is no fourth letter of offer.
33 The reference in the second and third letters of offer to the Conditions is in these terms:
‘Conditions of Employment
This letter of appointment (and attached Executive Conditions of Employment) set out conditions of employment under current policies and subject to your acceptance of this offer, will form part of your terms and conditions of employment. Your employment will also be subject to prevailing NatWest Markets Australia policies which may be amended from time to time.’
34 The condition within the Executive Conditions of Employment upon which reliance has been placed by NatWest and which was critical to the decision in Walker No 2 is in these terms:
‘Termination of Employment
Each party may terminate the contract of employment by giving one month’s notice in writing or in the case of the Company payment in lieu thereof. The Company reserves the right to terminate the agreement without notice in the case of misconduct or in the event of any material breach of the terms and conditions of employment.’
35 There was no provision in the third letter of offer for a commencement date. The primary judge observes that Walker discussed with Thomas and Fulton on 15 January 1998 the ‘main terms of the contract’. Walker told Thomas and Fulton that ABN AMRO was to announce all redundancies by 28 February 1998. Thomas again said that NatWest was more than satisfied with the references and Walker’s suitability for the position. It was agreed that 15 March 1998 would be the latest date on which Walker would commence work with NatWest. Thomas wanted Walker to read and execute the copy letter immediately. Walker said that although he accepted the terms set out in the letter, he did so subject to taking a copy of the letter back to Melbourne ‘for checking’ and if he was satisfied with its terms, he would then countersign the letter and return it to Lancaster.
36 At the meeting of 15 January 1998, an agreement was reached between Walker, Thomas and Fulton that if Walker elected to sign the third letter of offer and return it to Lancaster, Walker would be taken to have accepted the NatWest offer upon the terms and conditions set out in the third letter of offer and upon condition that he start no later than 15 March 1998 or earlier if possible. Thomas accepted that Walker was not prepared to commence engagement with NatWest until he had received his bonus from ABN AMRO.
37 On Friday 16 January 1998, Walker countersigned the third letter of offer and telephoned Lancaster to tell her that he would be sending the signed document to her. Thomas told Lancaster on being advised of Walker’s acceptance of the offer that Lancaster had done well as Walker was ‘a fantastic hire’ and that NatWest was ‘thrilled’ with Walker’s appointment.
38 On Monday 19 January 1998, Walker sent the signed third letter of offer to Lancaster. She received the document on 20 January 1998. Lancaster was to hold the contract pending the termination of Walker’s employment with ABN AMRO. Lancaster on or about 20 January 1998, but probably in the week following that date, told Fulton that she had received the signed contract. In that conversation with Lancaster, Fulton expressed his delight at Walker’s signed acceptance.
39 In [12] of the Statement of Claim, Walker pleads that in telephone conversations with Fulton on 6, 12 and 14 January 1998, Fulton made the following representations:
‘NatWest represented to the Applicant that if he accepted employment with NatWest:
(a) his remuneration package on commencement of employment would be $275,000 per annum;
(b) he would be guaranteed a minimum bonus of $250,000.00 in respect of the 1998 calendar year;
(c) he would be employed until at least the 1999 calendar year;
(d) he would be guaranteed the position of Director of Research in the 1999 calendar year; and
(e) there was the potential for him to move to the Corporate Finance Division in the 1999 calendar year (all five are hereinafter referred to as ”the third representation”).
PARTICULARS
The third representation was made by Mr Fulton in telephone conversations with the Applicant on 6 January 1998, 12 January 1998 and 14 January, 1998. These matters had previously been discussed between Mr Fulton and the Applicant. The purpose of the discussions in January 1998 was to reach agreement on the terms of a contract of employment. The discussions resulted in a first draft letter of offer dated 12 January, 1998.’
40 In [32], [33], [35], [37], [38] and [40] of the Statement of Claim, Walker pleads that in making the third representation NatWest engaged in misleading and deceptive conduct in trade and commerce as to the nature, terms and conditions of employment being offered in circumstances where neither Citigroup Australia nor Natwest had reasonable grounds for making the representation. Walker pleads reliance, loss of employment and prejudice to reputation as part of the reliance loss.
41 In [13] of the Statement of Claim, Walker pleads the substance of the meeting of 12 January 1998.
42 In [14] of the Statement of Claim, Walker pleads:
‘On or about 16 January 1998 the Applicant and NatWest entered into a contract of employment (“the Agreement”) under which the Applicant would be employed in the position of Senior Resource Analyst covering BHP (“the position”).
PARTICULARS
The Agreement was partly in writing and partly oral. Insofar as it was in writing, it was constituted by a letter of offer from NatWest dated 12 January 1998 which was countersigned by the Applicant on 16 January 1998. Insofar as it was oral, it was constituted by a discussion in Sydney on 15 January 1998 between the Applicant and representatives of NatWest, Mr Thomas, Ms Lancaster and Mr Fulton. The substance of the discussion was that NatWest was offering the Applicant employment on the terms and conditions set out in the letter of offer and the attachment thereto. The letter of offer was signed by Mr Thomas in the presence of the Applicant, Ms Lancaster and Mr Fulton. … It was then agreed that the Applicant would take a copy of the letter of offer and the attachment back to Melbourne with him and if he was satisfied he would countersign the letter and return it to Ms Lancaster who would hold it in a safe place until the Applicant gave notice of termination to ABN AMRO.’
[emphasis added]
43 In [15] of the Statement of Claim, Walker pleads:
‘There were terms of the agreement that the Applicant would:
(a) receive a remuneration package on commencement of employment of $275,000.00 per annum;
(b) receive a minimum bonus of $250,000.00 in respect of the 1998 calendar year;
(c) become Director of Research in the 1999 calendar year;
(d) commence his employment with NatWest on or about 15 March 1998 or an agreed earlier date; and
(e) be employed until at least the 1999 calendar year.
PARTICULARS
The terms set out in subparagraphs (a) to (c) were agreed in the conversations and documents referred to in the particulars subjoined to paragraphs 12 and 14 hereof.
The terms set out in subparagraph (d) was oral and constituted by the discussions referred to in the particulars subjoined to paragraph 14. The term set out in paragraph (e) was partly oral and partly implied. It was constituted by the discussions referred to in the particulars subjoined to paragraphs 12 and 14. It was implied by the need to make effective the agreement that the Applicant would achieve the guaranteed minimum bonus for 1998.’
44 As to [12] and [13] of the Statement of Claim, NatWest and Citigroup Australia by their further Amended Defence each deny each and every allegation contained in those paragraphs. As to [14] of the Statement of Claim, NatWest and Citigroup Australia each deny each and every allegation and further say that on 16 January 1998 NatWest made an offer of employment to Walker by a letter of offer document dated 12 January 1998. They allege that Walker failed to accept the offer at any time by the mode of acceptance prescribed by the letter of offer, namely, to sign and return to Thomas ‘a copy of the documents attached to the letter of offer’. As a result, NatWest contend that it was free to and did withdraw the offer of employment.
45 However, the primary judge found that Fulton and Thomas agreed with Walker that the NatWest offer could be accepted by Walker signing and returning the third letter of offer to Lancaster. The primary judge noted that as part of this ‘arrangement’, Lancaster, Thomas and Fulton agreed that Lancaster would hold the signed document for NatWest until Walker left ABN AMRO. Lancaster received the signed document on 20 January 1998 and her Honour concluded that a contract of employment came into existence on 20 January 1998 ([64], [68], [78], [79], [80], [81], [83], [155], [156], [157] and [171] of Walker No 1).
46 In dealing with these issues the primary judge noted the following: that the first letter of offer contemplated the payment of the 1998 bonus in 1999 (as do the second and third letters of offer); that Walker sought an elevated title of ‘Director’ for the second year of his engagement (1999), a request with which Fulton was comfortable; that the second letter of offer (and therefore the third) set out the ‘substance’ of the offer, representing the ‘substantive letter’; and that the substantive letter confirmed the conferral of the title ‘Director of Research’ at the end of the 1998 year.
47 The paragraphs in Walker No 1 referred to above also contain references to the discussion on 15 January 1998 as being concerned with the ‘main terms’ of the contract. These references suggest that although the Conditions formed part of the contractual documents they played a formal but subsidiary role in the context of the discussions. Her Honour found that NatWest and Walker had put in place an arrangement concerning the manner of acceptance of the third letter of offer notwithstanding such an arrangement was expressly inconsistent with the method of acceptance prescribed by the third letter of offer. The participants demonstrated a willingness to depart from strict compliance with the documents in order to give expression to the bargain.
48 Walker relies upon [203] of Walker No 1 as support for the proposition that the promissory representations pleaded in [12] of the Statement of Claim as ‘the third representation’ formed terms of the contract. At [203] and [204] of Walker No 1, the primary judge said:
‘This is not a case where, having entered into a contract, a contracting party receives different benefits from those which he or she was led to believe would be his or hers under the contract. In this case, if there were a valid contract, then there is no dispute about the promises that the contracting parties made. That is, if there were a valid contract, then there is no dispute that the promissory representations (pleaded as the third representation) formed part of the contract. There was nothing misleading or deceptive about the representations because there was nothing relevantly inaccurate in them. Further, Mr Walker has not asserted that the respondents represented that they had an intention or a capacity they did not have. The parties are not in dispute because the third representation was untrue, but because the respondents deny (wrongly as it turns out) that Mr Walker accepted the offer in the third letter of offer.
For the reasons set out above, I accept the respondents’ counsel’s submission that the third alleged representation was not actionable under either s52 or 53B of the TPA.’
49 In Walker No 2, the primary judge at [172] sought to explain [203] of Walker No 1 in these terms:
‘The observations at [203] (of Walker No 1) are to be read in the light of the conclusion that Walker was offered and accepted a contract of employment upon the terms set out in the third letter of offer. As the respondents noted, the reference to “these promissory representations” in [202] and to “promissory representations” in [203] is properly read as a reference to the offer of a salary of $275,000.00, the minimum bonus of $250,000 and the other benefits referred to in the third letter of offer.’
50 In Walker No 2, at the primary judge made these findings (at [170]–[181]):
‘…I find that Mr Walker’s employment contract contained a valid termination provision conferring on both parties a right to terminate on one month’s notice. The first respondent also had a right to pay one month’s salary in lieu of this notice. Accordingly, Mr Walker is entitled to one months’ salary as damages for breach of contract.
…
I also reject Mr Walker’s submission that the termination provision was merely a “standard term” that should give way to the other terms in the contract. The language of the termination provision was crystal clear. It created mutual rights and obligations for the parties. Under the provision, Mr Walker was also entitled to terminate the contract upon the provision of one month’s notice (just as he said was the case under his contract with ABN AMRO).
Further, there is no inconsistency between the termination provision and other terms of the contract.
…
For the above reasons, I find that the parties agreed that the contract could be terminated by either side upon the provision of one month’s notice.’
The post contractual events
51 On 3 February 1998, Walker confirmed to ABN AMRO that he was not intending to stay on as a part of the reorganised firm and so acted to his disadvantage. By early February, Fulton knew that Walker’s prospects of continuing employment with ABN AMRO had been significantly prejudiced.
52 On 10 February 1998, the acquisition of NatWest by Citigroup Australia had been announced together with the appointment of Thomas as Managing Director of the Equities Division and Fulton as Head of Research.
53 On 13 February 1998, Walker spoke with Fulton and asked him whether the sale would affect his contract with NatWest. Her Honour found at [96] of Walker No 1 that Fulton said the contract was:
‘… fine and in full force, would not have to be altered, and [was] similar to all other NatWest employee contracts for Research staff which were held by NatWest Markets. …[T]he contract was for employment under the new owner as previously agreed. …[T]he contract would be transferred to the new holding company along with all other staff contracts by completion on 31 March, 1998.’
54 On 15 February 1998, Lancaster was told by Fulton that he had received ‘negative feedback from the market’ concerning Walker. On 16 February 1998, Fulton told Lancaster that Walker had a ‘bad reputation in the market place’. A question arose as to the source of Fulton’s alleged information concerning Walker.
55 On 17 February 1998, Walker received information from an ABN AMRO dealer in Sydney that NatWest dealers were advising Walker’s institutional clients of his employment by NatWest. The disclosure of the information caused Walker great concern.
56 On the same day, ABN AMRO provided Walker with details of its redundancy policy and advised that all requests had to be lodged by Friday 20 February 1998. With the knowledge and support of Fulton, Walker sought to negotiate a voluntary redundancy from ABN AMRO and so burnt his bridges there. Fulton and Walker agreed a commencement date of 2 March 1998 for Walker’s employment. Fulton subsequently denied this conversation. At [110] of Walker No 1, the primary judge found that Fulton had fabricated his evidence on that question to suit the case that the contract was not on foot and to justify his own actions at the time.
57 Fulton also discussed the prospective employment of Walker with another head hunter, Mr Coles, without regard to the confidentiality obligation agreed between the parties. Her Honour found at [113] of Walker No 1:
‘I accept that the disclosure by Mr Fulton of Mr Walker’s prospective employment with NatWest was a patent breach of confidence and was, in the circumstances, known to Mr Fulton, likely to work adversely to Mr Walker’s interests. Furthermore, Mr Fulton knew at the time that Mr Walker was anxious that his involvement with NatWest be kept strictly confidential until he had left ABN AMRO.’
58 The primary judge further found at [115] of Walker No 1 that in mid February 1998 Fulton had decided that he would attempt to prevent Walker joining NatWest if he could. Fulton said that his lack of enthusiasm for Walker was a function of the negative feedback he had received from the market and the failure to commit to a starting date. Fulton could not recall at trial any external client who had made a negative remark about Walker or the substance of the remark made. At [117] of Walker No 1, her Honour noted that Fulton denied he was fabricating this evidence of negative feedback concerning Walker.
59 Fulton told Thomas of the alleged negative comments concerning Walker and of Walker’s alleged failure to agree to a definite starting date for his employment. In reliance upon these matters, and legal advice predicated upon them, NatWest decided if possible to withdraw its offer of employment to Walker. The primary judge accepted that although Fulton and Mr Malcolm Sinclair, Managing Director and Deputy Head of Equities of NatWest, had received some negative feedback concerning Walker, her Honour was not satisfied that the adverse remarks from institutional clients were of any significance (see [119] of Walker No 1). Her Honour also found at [119] of Walker No 1 that when Fulton told Thomas that no starting date had been agreed, Fulton knew that this advice was incorrect.
60 On 20 February 1998, Walker attended a meeting in Sydney at NatWest with Fulton and Sinclair. Fulton told Walker that the equity research position was no longer available, that Walker lacked standing in the market, and that the contract was not binding and had lapsed. Walker was also told that he should not be concerned about the loss of the equity position because ‘there were positions available in the Corporate Finance area and a position would likely be offered to Walker because of his expertise and experience’ (see [121], [213] and [214] of Walker No 1).
61 Walker said he had a binding contract but that he would consider a position in the Corporate Finance department providing it was a real position. Fulton pressed Walker on a number of matters including as to whether he was still employed at ABN AMRO, whether he had tendered his resignation, whether he was in a position to resign at the time of the meeting of 20 February and execute the letter of offer at that time and finally, whether he could give Fulton and Sinclair a definite starting date. Fulton knew that Lancaster was holding the letter of acceptance and the need for confidentiality remained as previously agreed because the ABN AMRO redundancy question had not been finally resolved. Fulton said at the trial that at the meeting on 20 February 1998 NatWest was prepared to ignore the alleged negative feedback about Walker and treat him as an employee immediately if he executed a legally binding contract on that day. This was of course an empty position as he knew that Walker was not prepared to resign until his bonus was received.
62 On these issues, the primary judge found in Walker No 1 (at [134]–[135]):
‘It was apparent from the evidence that Mr Fulton pursued a course designed to give NatWest a legal entitlement to reneg on its arrangements with Mr Walker, without real regard to the actual circumstances. According to Mr Fulton, Mr Walker only needed to “give us a signed copy of the letter” to ensure that he had a contract. He disregarded the fact (which he knew) that, in the interests of confidentiality, Ms Lancaster held a signed copy of the contract and he placed no reliance on the alleged absence of a starting date. Further, Mr Fulton’s assertions that Mr Walker was unsuitable for a research position was contradicted by Mr Fulton’s acknowledgement at trial that he knew Mr Walker to be well qualified. Mr Fulton’s position was untenable.
Mr Walker was a credible witness and Mr Fulton was not. Although Mr Sinclair’s evidence contradicted Mr Walker’s evidence in part, it must be borne in mind that he not only knew little of the detail of events since August 1997, but also, before he attended the meeting, he did not know that Mr Walker had already signed the third letter of offer.’
63 On 22 February 1998, NatWest withdrew its offer of employment by a letter signed by Sinclair and drafted by NatWest’s solicitors on Fulton’s instructions. The primary judge found the letter was plainly incorrect and misleading in a number of respects and constituted a repudiation of the contract.
64 On 23 February 1998, Walker accepted a redundancy offer from ABN AMRO. On 24 February 1998, Walker met Fulton before attending a number of other meetings with NatWest staff to investigate whether a senior position in the Corporate Finance Department of NatWest might be available.
65 On 26 February 1998, Lancaster advised Walker that she had heard derogatory comments about him in the marketplace concerning his ability and standing and that his reputation in the industry was essentially ‘mud’. At about this time, NatWest finally advised Walker that there would be no position until the Finance Department was reorganised. Ultimately, on 19 May 1998 Walker was told that there would be no position at all and that NatWest denied any contractual liability of any kind.
Findings
66 The primary judge found that the representation made by Fulton on behalf of Citigroup Australia on 13 February 1998 that Walker would be employed by it after the purchase of NatWest on the same terms and conditions as had previously been agreed (‘the fourth representation’), was misleading and deceptive and that no reasonable grounds had been made out for the representation. Further, her Honour found at [211] of Walker No 1 that:
‘Mr Walker relied on the representation in pursuing (or continuing to pursue) a redundancy package with ABN AMRO and in taking other steps, through his solicitors, to leave his former employer as speedily as he could. In so doing, he acted to his detriment. In connection with this representation, his cause of action under s 52 of the TPA is made out.’
67 The primary judge noted that in relation to the representation made on and after 20 February 1998 by Fulton on behalf of Citigroup Australia that there were other positions available in the Corporate Finance Department and that it would be likely that a position would be offered to Walker having regard to his expertise and experience (‘the fifth representation’), the respondents had led no evidence that anyone at NatWest or Citigroup Australia had given any thought to a specific position for Walker. Neither had a position been subsequently offered. Moreover, there was no evidence that the Corporate Finance Department was undergoing reorganisation and that such a reorganisation might have resulted in a position for Walker. The primary judge held that Citigroup Australia failed to demonstrate reasonable grounds for making Fulton’s representation and that it was misleading and deceptive. Her Honour concluded that Walker relied on the fifth representation in the period between 20 February and 20 March 1998, when he sought to secure a position in the Corporate Finance Department. During this period, on the basis of Fulton’s representation, Walker did not pursue employment other than with NatWest.
68 The primary judge assessed the lost prospective earnings of Walker at ABN AMRO for the period to 30 June 2003. Her Honour found that those earnings would have been $2 567 100.00. Across that period, Walker derived receipts from alternative sources of $418 759.00. The primary judge also found that Walker had a 33 per cent chance of retaining his employment at ABN AMRO at the time of reliance upon the representation of 13 February 1998. Walker contends that the reliance loss is properly measured by the following approach. First, calculate the potential loss assuming Walker had worked for the entire period, namely, $2 567 100.00. Then, deduct the receipts from other sources of $418 759.00 resulting in net lost earnings of $2 148 341.00. Finally, discount that amount by 67 per cent to $716 113.00 to determine the measure of the lost chance.
69 As to the contract claim against NatWest, as noted earlier, the primary judge accepted NatWest’s contention that the evidence of Fulton, Thomas and Sinclair demonstrated that by 20 February 1998 those senior officers of the NatWest no longer wished to work with Walker. Although the conduct of 22 February 1998 was found to be a repudiation of the contract, the underlying disposition of these individuals to withdraw from the employment arrangement provided, it was found, a basis for concluding that NatWest would have acted in reliance upon the clause in the Conditions permitting either party to bring the contract to an end on one month’s notice once the contract commenced. The primary judge held that this provided a proper basis for concluding that the least burdensome consequence of the breach was one month of Walker’s salary component, namely, $22 917.00.
70 The primary judge dealt with the claim for consequential loss as a result of misleading and deceptive conduct of Citigroup Australia quite briefly. While acknowledging that damages may be awarded for losses consequential upon misleading and deceptive conduct and that there was evidence that at the end of February 1998 Walker’s reputation had been injured by Citigroup Australia’s misleading and deceptive conduct, the primary judge was of the view that the evidence was slim. Her Honour concluded that although Walker could not find an equivalent position to that which he had lost despite his admitted experience and endeavours and notwithstanding his company’s lifted financial performance after judgment on liability, these were not circumstances which permitted her to draw the inference that the Citigroup Australia’s misleading and deceptive conduct on 13 February 1998 was a direct cause of a consequential loss of reputation. The primary judge therefore held that he was not entitled to substantial damages on account of this conduct.
71 The primary judge went on to say that the evidence on distress and vexation, a further head of consequential loss claimed by Walker, was also relatively slight. She referred to the fact that there was no expert medical or other evidence to corroborate Walker’s claims in that regard and that his claim that the breakdown of his marriage and the loss of the day to day company of his children in the year after the misleading and deceptive conduct was insufficient evidence to permit the conclusion that such consequential loss flowed directly from the respondent’s conduct on 13 February 1998. On the other hand, her Honour accepted that in the circumstances of the case, the misleading and deceptive conduct necessarily occasioned Walker some distress and vexation. In consequence of these findings, her Honour awarded damages in the sum of $5 000.00 for all consequential loss, including damage to reputation and distress, occasioned Walker by the misleading and deceptive conduct.
cross-appeal
72 In his cross-appeal, Walker contends that the award was manifestly inadequate. He asserts that he was a skilled professional with a substantial position and status at ABN AMRO when he was first approached; that he was well paid: in the period to 30 June 2003, his expected income was $2 567 100.00 – an average of some $480 000.00 per annum and that after losing his job with ABN AMRO in February 1998 his income from personal exertion was $84 859.00, which was less than $22 000.00 per annum or approximately one twentieth of his expected income. He further contended that his financial losses occurred despite his best endeavours to gain new employment. He gave evidence that the loss of employment and consequent lack of income resulted in the sale of the family home and other significant personal difficulties. This had a substantial damaging effect on his personal, domestic and social life, including the break up of his marriage. These matters were not challenged in cross-examination. No countervailing evidence was tendered by the respondents. Finally, it was contended that Fulton’s conduct had to be viewed in light of his knowledge that Walker would be ‘burning his bridges’ and that the risk to his ongoing employment status was significant and obvious. In this regard, it was contended that Fulton’s conduct showed no regard or care and calls for a remedy that is proportionate to and reflects the harm caused. It is contended that compensation of $150 000.00 is appropriate with $100 000.00 as a minimum.
73 Citigroup Australia’s response to these contentions was that the findings of the primary judge referred to above were clearly open to her and there is no proper basis for disturbing them on appeal.
NOTICES OF APPEAL and cross-appeal
Grounds of appeal by Walker (VID 77 of 2006)
‘1. The trial on the issues of liability having been heard and determined and judgment having been given (Walker No. 1 [2003] FCA 1099, 10 October 2003) and the Court having found in Walker No. 1:
(a) that there was a contract of employment between the Appellant and the Respondent formed on 12 January 1998 (Walker No. 1 at [173] and see also Walker No. 2 [2005] FCA 1678 at [142]), and that the Respondent repudiated the contract on 20 February 1998 (Walker No. 1 at [173]); and
(b) that there were terms of the contract (Walker No. 1 at [203]) that:
(i) the Appellant’s remuneration package on commencement of employment would be $275,000 per annum;
(ii) the Appellant would be guaranteed a minimum bonus of $250,000 in respect of the 1998 year;
(iii) the Appellant would be employed until at least the 1999 calendar year;
(iv) the Appellant would be guaranteed the position of Director of Research in the 1999 calendar year; and
(v) there was potential for the Appellant to move to the Corporate Finance Division in the 1999 calendar year;
the learned judge erred in finding (Walker No. 2 at [170]) that the contract contained a provision conferring a right to terminate the Appellant’s employment on one month’s notice during 1998.
2. The learned judge should have assessed damages on the basis that:
(a) the Appellant was entitled to be paid for the balance of the 1998 calendar year at the rate of $275,000 per annum and was entitled to receive a minimum bonus of $250,000 in respect of that year;
(b) the Appellant was entitled to be employed in the position of Director of Research in 1999;
(c) the employment was intended to be long-term employment; and
(d) had the Respondent not repudiated the contract and observed the terms set out in paragraph 1(b), the Respondent would not have exercised its right to terminate the contract on one month’s notice at any time before the end of a reasonable period of employment in the position of Director of Research or at all, or alternatively, if there was any chance that the contract would have been terminated either during or after such period, the learned judge should have assessed damages for the loss of that chance in accordance with the relevant principles in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.
3. The learned judge should have assessed damages:
(a) for the 1998 calendar year, as $479,167 being 10 months salary at $275,000 per annum, plus a bonus of $250,000, instead of $22,917; and
(b) for the calendar year 1999 and beyond, on the basis that the Appellant lost his entitlement to be employed as Director of Research and lost the expectation and opportunity of continuing employment with the Respondent.’
Grounds of appeal by Citigroup Australia (VID 233 of 2006)
‘1. The learned Judge erred in not finding that execution of the damages awards against both respondents would offend the rule against double recovery and result in the applicant recovering in aggregate an amount in excess of his loss.
2. The learned Judge should have found that the applicant was not entitled to recover from the respondents in aggregate an amount greater than the damages award against the second respondent.
3. The learned Judge should have reduced the damages award against the second respondent for misleading and deceptive conduct by the amount of the damages awarded against the respondent for breach of contract.
4. The learned Judge erred in assessing the applicant’s loss at $1,184,873 less the applicant’s earnings in mitigation and should have assessed the applicant’s loss at $855,700 less:
(a) the applicant’s earnings in mitigation of $418,759.65; and
(b) the damages awarded against the first respondent of $41,566 (including interest).’
Grounds of cross-appeal by Walker (VID 233 of 2006)
‘1. The learned Judge erred in calculating the Cross-Appellant’s loss as a result of the Appellant’s misleading and deceptive conduct by failing to take into account his prospective earnings at ABN AMRO Australian Hoare Govett (Securities) Ltd (“ABN AMRO”) during the period 1998 to 30 June 2004 and by failing to properly assess his earnings during that period and, in particular:
(a) the learned judge erred in finding that the Cross-Appellant suffered no loss of earnings during the financial year 2003/04 as a result of the Appellant’s misleading and deceptive conduct;
(b) the learned judge erred in the calculation of the Cross-Appellant’s expected loss of earnings by reference to the average earnings of senior analysts and should have calculated his loss of earnings by reference to the earnings of directors at ABN AMRO; and
(c) the learned judge erred in rejecting the Cross-Appellant’s evidence that his level of earnings at ABN AMRO was in the top quartile of directors at ABN AMRO and should have found that, in that employment, the Cross-Appellant was and would have been paid earnings in the top quartile of employees at ABN AMRO.
2. The learned judge should have found that the Cross-Appellant’s loss of prospective earnings at ABN AMRO over the period 1998 to 30 June 2004 was $4,475,000.00 and not $2,567,100.00.
3. The learned judge’s assessment of $5,000.00 as compensation for damage to reputation and career prospects and for distress and vexation was manifestly inadequate.’
the resolution of the issues
Res judicata
74 The alleged inconsistency between the findings in the judgment in Walker No 1 and those in Walker No 2 has been referred to previously. In Walker No 1, having found that the promissory representations, pleaded as the third representation, were made, it was held that there were reasonable grounds for making them and the primary judge went on (at [203]–[204]):
‘This is not a case where, having entered into a contract, a contracting party receives different benefits from those which he or she was led to believe would be his or hers under the contract. In this case, if there were a valid contract, then there is no dispute about the promises that the contracting parties made. That is, if there were a valid contract, then there is no dispute that the promissory representations (pleaded as the third representation) formed part of that contract. There was nothing misleading or deceptive about the representations because there was nothing relevantly inaccurate in them. Further, Mr Walker has not asserted that the respondents represented that they had an intention or a capacity they did not have. The parties are not in dispute because the third representation was untrue, but because the respondents deny (wrongly as it turns out) that Mr Walker accepted the offer in the third letter of offer.
For the reasons set out above, I accept the respondents’ counsel’s submission that the third alleged representation was not actionable under either ss 52 or 53B of the TPA.’
[emphasis added]
In Walker No 2 findings were made which were clearly contrary to representations (b), (c), (d) and (e) of the third representation as NatWest could terminate Walker’s employment without cause upon giving one month’s notice in writing at any time during the 1998 calendar year.
75 It is common ground that the trial was split, with it being understood that the first hearing would relate to liability only. No order pursuant to O 29 of the Federal Court Rules was made. The formal order which was made at the conclusion of Walker No 1 was that:
‘Judgment be entered for the applicant [Walker] against the respondents for damages to be assessed.’
The precise effect of such an order in a case of this kind is doubtful and the question as to whether judgment estoppel or issue estoppel could arise is debateable. We shall return to this issue having considered the merits.
Contract claim
Walker’s appeal
Construction of contract
76 It was found that the contract was in the form of the third letter of offer which did not attach the Conditions but which referred to those Conditions as being attached. As the Conditions had been provided previously, it is clear enough that those Conditions are taken to be incorporated in the Contract. Hence, the problem of construction. The express offer included a promise that Walker would receive the title ‘Director of Research’ at the completion of the 1998 year and that the remuneration package was at the rate of $275 000.00 per annum with a guaranteed minimum bonus of $250 000.00 ‘paid to you with the bonus payments for the 1998 year, which are expected to be paid in February 1999’. Those terms plainly contemplate that Walker would remain employed for the whole of calendar year 1998. If the first sentence of the provision in the Conditions relating to termination of employment were able to be utilised, the employer would negate the express terms of the offer and deprive the employee of the benefit of the terms that were expressly agreed. Counsel for NatWest accepted that if his argument was correct, NatWest could have given notice of termination on 29 November 1998 to expire on 29 December 1998 without cause and so avoid payment of any bonus for the 1998 year. That is an unlikely result in view of the surrounding circumstances and the purpose and object of the transaction, namely, the recruiting of a high level and high profile employee then in other employment. (Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22].) Although the agreement was a contract of employment, the individuals involved in the negotiations were business people active in the financial world. The construction contended for would involve what Kitto J described as ‘practical absurdity’ in Rawson v Hobbs (1961) 107 CLR 466 at 488.
77 It is necessary to construe the contract as a whole and to construe individual clauses in that context. The objective is to give as much meaning as possible to all parts of the contract in a consistent fashion avoiding repugnancy and absurdity. Where there are clauses of a contract specially framed with the individual circumstances in mind, together with standard form clauses, it will normally be appropriate to give greater weight to the specially negotiated clauses. (Hume Steel Limited v The Attorney General for Victoria (1927) 39 CLR 455 per Isaacs J at 462–3, Higgins J at 465; Godecke v Kirwan (1973) 129 CLR 629 per Walsh J at 637; China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 per Gleeson CJ at 363; Re Theodorou [1993] 1 Qd R 588 at 593–4; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at [306]; Karaguleski v Vasil Bros & Co Pty Ltd [1981] 1 NSWLR 267 at 272; Torr & Torr Realty Pty Ltd v John Lockrey Pty Ltd (1994) 6 BPR 13,749. In our opinion, this is such a case. Effect can be given to all parts of the contract and repugnancy avoided here if the standard form provision for termination without cause is read as applicable only after the completion of the 1998 calendar year.
78 The result is that the clause permitting termination without cause by either side on one month’s notice would not have been operative so as to permit termination of employment without cause prior to 31 December 1998. Thereafter, it would have been available to both parties. This construction of the contract is fundamentally different from that applied by the primary judge and inevitably leads to a very different assessment of damages.
Contract damages
79 The objective of the award of damages for breach of contract is to place the innocent party in the position it would have been in if the contract had been performed, so far as money can do so. We see no difficulty in making the assessment of damages based upon the findings of primary fact and having regard to uncontested facts. The damages up to 31 December 1998 are straightforward, being the appropriate proportion of the agreed annual salary, together with the guaranteed bonus. Walker lived through the period. There is no occasion for any deduction for the vicissitudes of life. Thereafter, an assessment needs to be made as to the chances of termination by either party.
80 We agree that the period to be considered should end at 30 June 2003. By 1 January 1999, Walker would have occupied a position of some prominence with NatWest for many months. On the primary judge’s findings, it is likely that he would have performed his duties well. It can be assumed that he would have continued to competently perform his duties which, by then, would have involved a promotion to a Director of Research. There is no basis for thinking that Walker would have left for greener pastures prior to 30 June 2003. Again, we know that Walker lived through the period without any suggestion of incapacity. The evidence concerning comparable employees at NatWest indicates a reasonable degree of stability of employment with some turnover. The turnover, of course, could be accounted for by resignations as well as terminations. Walker gave evidence of a downturn in the market in 1999, which caused a reduction in employment opportunities. There is no evidence as to the effect of that upon NatWest. Indeed, no evidence as to damages was called by NatWest. In particular, no evidence was called by NatWest to the effect that it would have exercised the right to terminate the employment of Walker after 1 January 1999, or at all. If such evidence had been given, it could have been tested and assessed. There is evidence that company policy did not encourage peremptory dismissal, even for cause.
81 The conclusion that the primary judge drew as to the likely exercise of the power of termination relating to the period immediately after the repudiation of contract was based upon the attitude of Fulton. Neither Fulton nor Thomas gave evidence that the power to terminate would have been exercised at any time. That was not an issue at the time they gave evidence. They were not confronted with the issue as to whether an employee would have been sacked without cause after that person had publicly taken up a position of some prominence in the organisation. The evidence given by those witnesses as to liability would not form a proper basis for a finding as to what would or may have happened in 1999 and thereafter if the contract had not been repudiated. It is not at all clear what role Fulton would have played in relation to Walker during that period and there is no evidence as to what impact Fulton’s attitude would then have had upon more senior management if it had been hostile.
82 Indeed, even if the primary judge’s construction of the contract were to be preferred, the better view is that a finding that the termination of employment provision in the standard form Conditions would have been utilised by NatWest should not have been made without direct evidence to that effect from the relevant decision maker or makers. Furthermore, such a finding does not recognise that:
(a) the issue arises out of the conduct of Fulton who was not the responsible decision maker. He had set about a course of preventing Walker from having the benefit of his contract. He was found to have fabricated his evidence in a number of material respects including the question of the negative criticism of Walker and the issue of the start date for the contract. Moreover, Fulton was found to have been engaged in a ‘patent breach’ of the confidentiality obligations accepted by him and NatWest;
(b) both Thomas and Sinclair relied upon Fulton’s statements of the foundation facts and accordingly any attitude on their part towards Walker was contaminated by Fulton’s conduct;
(c) similarly, the advice provided by the solicitors was equally contaminated by Fulton’s instructions;
(d) the letter signed by Sinclair on 22 February 1998 was drawn by the solicitors upon instructions from Fulton; and
(e) Fulton accepted that if on 20 February 1998 Walker had signed a copy of the letter of offer then and there, a contract would have been brought into existence and Walker would have been an employee of NatWest.
83 There is no satisfactory basis for concluding that had Walker been allowed to commence his duties and embark upon deploying his technical and academic skills and expertise on behalf of NatWest that NatWest would have exercised a right to bring the contract to an end on one month’s notice without cause exercised either immediately after the start of the contract or at all. That NatWest would have sacked a skilled and competent employee holding a high profile position within the company without cause is not a natural inference to be drawn without direct evidence. To act in that fashion would deprive it of the services of a valuable employee and risk damage to its reputation in the financial community.
84 Counsel for Walker has submitted that it should be found that Walker would have remained in employment until 30 June 2003 at a level of remuneration, including bonuses, comparable with employees of a similar rank but that a 25 per cent discount be applied to take account of the possibility of earlier termination for one reason or another. We are satisfied that that is a proper approach to the assessment of damages. It is consistent with that of this Court in Amann Aviation Pty Limited v Commonwealth (1990) 22 FCR 527, with the High Court in the appeal from that decision (Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64) and with the New South Wales Court of Appeal in TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 per Hope JA at 155G–156C.
85 The authorities concerning wrongful dismissal referred to by the primary judge, exemplified by Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, are not of assistance here as they relate to the actual dismissal of an employee, not damages for breach of contract by repudiation. The approach by Lockhart J in Finucane v New South Wales Egg Corporation (1988) 80 ALR 486 at 520–523, although in a different context, is a better guide in this case.
86 We might add that we have approached the question on the basis that there would have been no implied restraint upon exercise of the standard termination clause once operative. There is thus no need to consider the contention that it could only have been exercised reasonably and in good faith.
Quantum
87 There is little debate about the figures. We accept the basis for quantum put forward on behalf of Walker. The amount assessed for calendar year 1998 is $479 167.00, being 10 months’ salary at the rate of $275 000.00 per annum plus the bonus of $250 000.00. The total lost earnings from 1 January 1999 to 30 June 2003 are assessed at $2 574 707.00 less $84 859.00 actual earnings to be deducted, leaving $2 489 848.00. Deducting an allowance of 25 per cent for contingencies leaves $1 867 386.00. This, when added to $479 167.00, yields a total of $2 346 553.00 under this head.
Trade Practices Act
Citigroup Australia appeal
88 The finding as to the assessment of damages in contract has an impact upon the TPA issues. It is now accepted by Walker that there should not be double recovery for economic loss. As our assessment of damages for breach of contract exceeds the damages awarded by the primary judge for economic loss in respect of the TPA liability, it follows that damages under the latter head are academic. There is no question of insolvency of either respondent. That directly responds (in the new context) to the first ground of appeal by Citigroup Australia.
89 The second ground of appeal by Citigroup Australia concerns the precise methodology of calculating the damages, given the findings as to individual integers – particularly that relating to the treatment of the redundancy payment received by Walker. That question is now moot and does not require resolution.
Walker’s cross-appeal
90 It remains to deal with the cross-appeal by Walker as to the inadequacy of the award of $5 000.00 for general consequential damages.
91 It is true that the evidence going to the consequential loss claimed by Walker was not great in volume but it was striking in its effect. The evidence did not need to be corroborated. It was not challenged. We do not agree that expert evidence was necessary. We are not clear what type of expert evidence would be required. The consequential effects of the loss of his job on Walker’s business reputation and personal life, drastic as they were, are not out of the ordinary course of events. In the circumstances, we think the award of $5 000.00 is a significant under assessment of the loss which Walker suffered in this regard. If his evidence is accepted, as it must be, he suffered a considerable dislocation of his life with serious long term effects. In our view, the cross-appeal should succeed and an award in the amount of $100 000.00 should be substituted for the award of $5 000.00.
Res judicata revisited
92 Our finding as to the proper construction of the contract removes the substantive disconformity between Walker No 1 and Walker No 2 discussed earlier. The contract so understood is consistent with the representations found to have been made. Thus, the award for damages that will follow this judgment will be consistent with the finding on liability in Walker No 1.
Delay
93 The principal issue upon which we have parted company with the primary judge does not seem to us to give rise to any need to consider the effect of delay.
Costs and interest
94 There appears no reason why:
(1) costs should not follow the event on the appeal and at first instance; and
(2) interest should not be awarded along the lines decided by the primary judge.
Conclusion
95 The appeals and the cross-appeal will stand over generally to enable counsel for Walker to bring in short minutes of the orders to be made to give effect to this judgment. If by consent, orders can be made in chambers. If not, the matter will be relisted for argument.
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I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gyles, Edmonds and Greenwood. |
Associate:
Dated: 23 June 2006
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Counsel for Walker: |
Mr C Gunst QC and Mr Brian Lawrence |
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Solicitor for Walker: |
Holding Redlich |
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Counsel for Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) and Citigroup Global Markets Australia Holdings Pty Limited (formerly known as Salomon Smith Barney Australia Pty Limited): |
Mr P Jopling QC and Mr M McDonald |
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Solicitor for Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) and Citigroup Global Markets Australia Holdings Pty Limited (formerly known as Salomon Smith Barney Australia Pty Limited):: |
Freehills |
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Dates of Hearing: |
8, 9 May 2006 |
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Date of Judgment: |
23 June 2006 |
