FEDERAL COURT OF AUSTRALIA

AMP Services Ltd v Manning [2006] FCA 256

EMPLOYMENT – contract of employment – post-employment restraint – invalid restraint of trade – solicitation of clients – breach of employee’s duty of good faith – compensation – principles

EVIDENCE – rule in Jones v Dunkel – whether applicable if witness available to both parties

Corporations Act 2001 (Cth) ss 182, 183

Aberdeen Railway Co v Blaikie Bros (1854) Macq 461 cited

American Financial Corporation v Computer Sciences Corporation, 558 FSupp 1182 (D.Del, 1983) cited

Brilliant Lighting (Aust) Pty Ltd v Baillieu [2004] VSC 248 cited

Buckley v Tutty (1971) 125 CLR 353 cited

Canadian Aero Service Ltd v O’Malley (1973) 40 DLR (3d) 371 followed

Canson Enterprises Ltd v Boughton & Co. (1991) 85 DLR (4th) 129 followed

Charles Lo Presti Pty Ltd v Karabalios [2000] NSWSC 395 cited

Claremont Petroleum NL v Cummings (1992) 110 ALR 239 cited

Dawson, Re [1966] 2 NSWR 211 followed

Earle v Castlemaine District Community Hospital [1974] VR 722 followed

Enoch and Zaretzkey, Bock & Co’s Arbitration [1910] 1 KB 327 cited

Foran v Wight (1989) 168 CLR 385 followed

G W Ploughman & Son Ltd v Ash [1964] 1 WLR 568 applied

IF Asia Pacific Pty Ltd Galbally [2003] VSC 192 cited

Industrial Equity Limited v Blackburn (1977) 137 CLR 567 cited

Jones v Dunkel (1959) 101 CLR 298 discussed

Nocton v Lord Ashburton [1914] AC 932 followed

Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 applied

O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 followed

Payne v Parker [1976] 1 NSWLR 191 cited

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 followed

Southern Real Estate Pty Ltd v Dellow and Arnold (2003) 87 SASR 1 followed

Target Holdings Ltd v Redferns (a firm) [1996] 1 AC 421 followed

Walker v Winborne (1976) 137 CLR 1 followed

William Hill Organisation Ltd v Tucker [1999] ICR 291 cited

Wigmore on Evidence (3^rd ed, 1940)

Restatement (Second) of Contracts

In the matter of AMP Services Ltd and Arrive Wealth Management Ltd

AMP SERVICES LTD and ARRIVE WEALTH MANAGEMENT LTD v ANGELA MANNING and POLLIANNA HARKNESS

NSD 983 of 2004

FINKELSTEIN J

24 MARCH 2006

MELBOURNE

In the matter of AMP Services Ltd and Arrive Wealth Management Ltd

REASONS FOR JUDGMENT

1                     The plaintiffs, AMP Services Ltd (AMP Services) and Arrive Wealth Management Ltd (Arrive), are members of the AMP group.  Arrive operates a financial planning business which it purchased from PricewaterhouseCoopers (PwC) on 28 June 2002 for around $9 million.  AMP Services employs the financial advisers who work in the business.  The defendants were two of those advisers.  In January 2004 the first defendant went to work for a competitor, Goldman Sachs JBWere Services Pty Ltd (GSJBW).  The second defendant and other employees soon followed.  So did many of Arrive’s clients.  Within a matter of weeks a large proportion of Arrive’s business was lost.  The plaintiffs allege that as a result the capital worth of the business diminished by about $4.3 million.  They seek to recover that amount from the defendants (or to obtain from them an account of any benefits they have received from GSJBW) alleging three causes of action:  (i) breach of contract — relying on a post-employment restraint and confidentiality clause in each contract of employment; (ii) breach of statute — ss 182 and 183 of the Corporations Act 2001 (Cth); and (iii) breach of fiduciary duty — the equitable duties of good faith and to act in the employer’s best interests. 

2                     To understand how this case has come about it is necessary to sketch briefly some of the background.  PwC’s financial planning business provided financial planning and taxation advice to wealthy individual clients.  The first defendant, Ms Manning, a chartered accountant who also has academic qualifications in both business and financial planning, was a senior manager in the Melbourne office of the business.  Ms Manning was a top-notch financial planner.  PwC regarded her as having excellent business skills and as being an exceptional team leader.  As we shall see she was also extremely ambitious.  Other financial advisers working in the Melbourne office who formed a group headed up by Ms Manning were Kerry Ventura, Laurence McCarthy, Ben McGrath, James Hufton and the second defendant, Ms Harkness. 

3                     When it decided to purchase the business Arrive thought it necessary also to acquire key personnel who worked in the business.  To this end the sale contract allowed AMP Services to nominate PwC employees to whom an offer of employment would be made and PwC promised to use reasonable endeavours to encourage those employees to accept the offer.  Ms Manning was one of two employees who were nominated to receive an offer of employment.  This was followed on 20 June 2002 by an offer to Ms Manning to take charge of what was now Arrive’s Melbourne office.  To induce Ms Manning to accept the offer, PwC agreed to pay her $150,000 with one half payable when she commenced her new employment and the balance payable 18 months after the completion of the sale of the business to Arrive.  In the event, that day was 1 January 2004. 

4                     Ms Manning accepted the offer of a position with AMP Services.  There are several provisions of her employment contract to which reference should be made.  The contract is set out in a letter to Ms Manning from Neil Farrington, the Managing Director of Arrive.  The opening paragraph of the letter reads:  “Conditional upon completion of the sale of PricewaterhouseCoopers [sic] financial planning business to AMP, I am very pleased to offer you employment with AMP Services Limited (AMP) on the following terms”.  There then follow the terms, the most important of which are:

“1.       Position and Duties

Your initial position will be Victorian Head and Senior Adviser.  You will report to the National Dealership Development Manager.

Initially, your duties will be those set out in your annual Performance Agreement which you should enter into with your Manager shortly after the commencement of your employment.

You will also perform such other duties, functions and responsibilities as AMP may reasonably require from time to time.

You will be required at all times to act diligently and to perform your duties with reasonable care.

Your employment will be effective on and from the completion date of the sale which is expected to be on or around 1 July 2002.  You will commence work on the first working day following the completion date.

2.         Location of Employment

Your place of work will remain unchanged.  AMP may reasonably require you to work at other locations or with another company which is affiliated or related to AMP from time to time.

3.         Remuneration

Your Fixed Pay Package (FPP) will be $145,000 per annum.

You will be entitled to participate in a Fees based commission program as outlined below:

For fees earned over 3 x total remuneration, you will receive commission of 40% of Net Fees Earned.  For fees earned above $950K, you will receive commission of 45% of Net Fees Earned.  This commission will be paid annually.

Your remuneration is reviewed, but not necessarily changed, each year in accordance with AMP policies.  The date of your next remuneration review is 1 April 2003.

…

7.         Termination of Employment

Your employment may be terminated by you or AMP giving 4 weeks written notice of the termination of your employment.

The period of notice is increased by one week if you are over 45 years of age and have completed 2 years continuous service.

AMP may elect to pay you salary in lieu of notice or require you to work during part or all of your notice period.

AMP is entitled to terminate your employment at any time without notice or payment in lieu of notice if you disobey a lawful direction of AMP or you are guilty of other serious misconduct.

…

9.         Confidentiality

All information regarding AMP’s business and affairs and that of its clients and employees which is not publicly available shall be treated in the strictest of confidence by you during your employment with AMP and following the cessation of your employment.

You must not use or disclose any confidential information of which you become aware, except in the proper course of your employment and with the prior approval of AMP and, where applicable, any person to whom the information relates.  Confidential information includes, but is not limited to any information relating to finances, systems, customers or clients, employees of AMP, remuneration, tax file numbers and intellectual property.  You must not copy, reproduce or store in a retrieval system or database any confidential information, except in the proper performance of your duties and responsibilities as an employee of AMP.

…

11.       Post Employment Restraint

If after the cessation of your employment with AMP, you go to work for a competitor of AMP or resign from your position to take on a self-employed role, then, for a period of twelve (12) months after you leave AMP, you cannot:

a)                 Approach any of AMP’s clients or customers for the purposes of enticing them away from AMP, or disrupting their relationship with AMP, except where you have purchased a register of clients under the terms set down by AMP for such a purchase; or

b)                 Solicit, interfere with or endeavour to entice away any employee of AMP, or

c)                  Counsel, procure or otherwise assist any person to do any of the acts referred to above.

…

18.              Our Agreement

This letter and any attachments will represent the whole agreement between AMP and you regarding your employment, once it has been signed by you.  This letter supersedes and merges all previous negotiations, understandings or representations between AMP and you.

This agreement is confidential and may not be disclosed by you to any other person, other than for the purpose of obtaining professional legal or accounting advice, without the prior approval of AMP.”

5                     The members of Ms Manning’s group were also employed by AMP Services.  Only one, Ms Harkness, is a defendant.  Her background is in law and economics.  While at PwC Ms Harkness was an adviser in the financial planning section.  Initially, her position with AMP Services was as a financial adviser.  She was promoted to senior financial adviser in December 2003.  The terms of her employment contract are similar to those of Ms Manning.  Only two terms need be mentioned.  First, the contract allowed Ms Harkness to terminate her employment on two weeks’ notice.  Second, there was a post-employment restraint and, third, a confidentiality clause in the same terms as those contained in Ms Manning’s contract.

6                     It will be noticed that the promisee under each employment contract is AMP Services.  Yet it is Arrive that sues for the breach of each contract to recover its alleged loss of $4.3 million.  The difficulty with such a course is obvious and was recognised by the plaintiffs.  In their amended points of claim they allege that the benefit of the post-employment restraint and the benefit of other provisions of each contract are held on trust for Arrive.  In the alternative they contend that each agreement was made by AMP Services as agent for Arrive.  Those are the bases upon which Arrive asserts standing to sue.  The allegation that several provisions of each contract are held on trust for Arrive has been admitted, although the defendants say that each post-employment restraint is “void and unenforceable”.  The admission makes it unnecessary to determine several tricky questions that would otherwise arise, including:  (1) Whether each promise is capable of being held on trust; (2) Whether the intention to create the trust must be gathered from the contract itself or whether extrinsic evidence is admissible for this purpose:  American Financial Corporation v Computer Sciences Corporation, 558 FSupp 1182 (D.Del, 1983); and (3) Whether the requisite intention must be that of both the promisor and the promisee: see the discussion in Restatement (Second) of Contracts §302. 

7                     The principal service provided by Arrive to its clients was investment and superannuation planning advice.  Its income was derived from fees charged for advice and commissions earned from the management of funds.  The business was conducted from offices in most capital cities.  The largest office was located in the PwC building in Melbourne where Ms Manning was in charge.  The advisers in the Melbourne office were Ms Manning’s group from PwC plus two additional advisers, Sam Gray and Andrew Walsh, who had been engaged in 2003. 

8                     Ms Manning was Arrive’s most successful adviser.  Yet, she was dissatisfied with several aspects of Arrive’s business.  I will only mention a few of them.  In 2002 she was involved in a dispute with Mr Farrington about the quantum of bonus commission to be paid to herself and her group.  The dispute was resolved, but not to Ms Manning’s complete satisfaction.  Another matter was the structure of the business.  From the outset Ms Manning pressed for the introduction of a “self-employment” business model.  Under this model clients would “belong” to an adviser and the income that was derived from that client would be split between the adviser and Arrive.  Ms Manning was of the view that unless this model was instituted it would not be possible to retain quality advisers.  The model was often discussed, but nothing was done.  Another sticking point was Ms Manning’s concern about the addition of AMP “products” to the range of investments that clients were encouraged to make.  She did not believe they were suitable for Arrive’s clients.  This issue was never resolved.

9                     An important feature of Arrive’s business was the regular dealings between its advisers and major stockbroking firms, especially in relation to clients for whom Arrive managed a share portfolio.  In addition, there were cross-referrals of clients between Arrive and certain broking firms.  Arrive had a particularly close relationship with one large broking firm, JBWere Pty Ltd.  This was the continuation of a relationship that had begun when Arrive’s business was run by PwC.  As a result of this relationship Ms Manning came to know quite well several senior executives of JBWere including Marc Huinink, a senior investment adviser, David Evans, Head of Retail, and Chris Voigt, a senior investment adviser and Manager, Victorian Retail.

10                  In mid-2003 JBWere and Goldman Sachs Group, Inc, a global investment bank, “merged” parts of their respective operations.  They established GSJBW as a new company.  The new company took over the broking and financial planning business formerly conducted by JBWere.  Almost immediately GSJBW began to expand the financial planning side of the operation. 

11                  Around the same time, Ms Manning started to think about leaving Arrive.  She began looking at other opportunities that might be available.  She had even gone so far as to discuss her situation with an executive recruitment firm.  It is likely Ms Manning told some of her friends at GSJBW that she might leave Arrive.  In early October Mr Huinink provided Ms Manning with a character reference.  Ms Manning said that she had requested the reference to support her application for registration as a tax agent.  She had lodged such an application and was required to provide evidence that she was a fit and proper person to prepare income tax returns and transact business on behalf of taxpayers in income tax matters.  The character reference was capable of being used for that purpose, though if that were its principal purpose it would perhaps have been worded differently. 

12                  From time to time in the middle of 2003 Ms Manning spoke with Mr Voigt, Mr Huinink and Mr Evans; whether separately or together is not clear.  The topic of their conversations is a matter of controversy.  Ms Manning says that the only matters discussed were business development opportunities and, later on, the merger between JBWere and Goldman Sachs.  It may be accepted that these matters were discussed.  The question is whether, as the plaintiffs assert, they also spoke about Ms Manning becoming an employee of GSJBW.  I think that if this issue was raised, it was discussed only in passing.  The evidence does not enable me to find that any detailed dialogue took place on this topic. 

13                  On 24 October 2003 the “senior team” of Arrive met with Mr Voigt and Mr Evans.  The meeting was arranged in an exchange of e-mails between Ms Manning and Mr Voigt.  It is helpful to set out the e-mails: 

“6/10/2003 02:50:26 PM

Hi Angela,

I hope all is well.

I was hoping to catch up with you some time this week to further our discussions.

Let me know if this would be ok (and can you please nominate some suitable days/times).

Regards,

Chris.”

“6/10/2003 04:34 PM

Hello Chris

… happy to pop over to your office – just let me know the preferred time.  David and I had discussed a meeting with some of the team – but I’m happy to meet with you again in the first instance if you prefer this approach.  Otherwise – will need to be next week as there’s a number of people out at the FPA Conference this week.

Kindest regards

Angela Manning”

“16/10/2003 02:37:52 PM

Angela,

David Evans and I would be available for the proposed team meeting on Thursday 23rd 12.00-1.00pm or anytime on Friday 24^th in the morning.  Sorry about the delay in responding however David’s calender [sic] has been hard to book in – he is currently doing an adviser roadshow with Terry Campbell across all the regional offices.

Let me know which date/time would be best.

Regards,

Chris.”

“16/10/2003 03:17 PM

Chris

Lets lock in Friday 24th at 9.00am.  We won’t have all the senior team – but most.  Call if you need to discuss anything beforehand.

kind regards

Angela Manning”

The meeting took place on the Friday.  Ms Manning and most of her group, including Ms Harkness, were in attendance.   Mr Gray and Mr Walsh were not invited to go.  Ms Harkness’ attendance was unusual in two respects:  she rarely worked on a Friday and she was not part of Arrive’s “senior team”.  Nor, for that matter, was Mr Hufton, another attendee.  Ms Manning explained that Ms Harkness was present because she was “seen as part of the more senior group”.  That does not, in my view, adequately explain her attendance.

14                  A good deal of time at trial was taken up investigating what this meeting was about.  In their amended points of claim the plaintiffs allege that between 1 July 2003 and 20 January 2004 Ms Manning “encouraged or facilitated … [other Arrive] employees to … leave the employ of Arrive and [AMP Services] and join Goldman Sachs, by putting them in contact with the persons at Goldman Sachs with whom she was dealing,” and that she “conspired with other employees of Arrive and [AMP Services] to divert Clients away from Arrive and to Goldman Sachs”.  The meeting is said to be a part of the conspiracy as well as an occasion on which Ms Manning encouraged or facilitated other employees to leave Arrive. 

15                  The only direct evidence about the meeting was that given by Ms Manning and Ms Harkness.  No other attendee was called.  It is unfortunate that on such an important issue I do not have the benefit of all the available evidence.  This was not the only event in respect of which the parties failed to call material witnesses.

16                  According to Ms Manning the point of the meeting was to explain how the newly created GSJBW was to operate.  Ms Manning said that she and her group were told that GSJBW would continue providing broking services, expand and develop its wealth management advisory division, offer advice in relation to financial planning, taxation and insurance matters, and add a “global dimension” to that side of its business.  She denied being offered a position with GSJBW.  She said that at the time she had given no serious consideration to moving to the new firm.  Ms Harkness confirmed that no job offers were made, although she conceded that she left the meeting believing that there may have been an opportunity to move. 

17                  If this evidence be accepted then the meeting was little more than an ordinary business meeting.  Yet there are some troubling aspects about the affair.  Ms Manning admitted that it was unusual for almost her entire group to attend a meeting with brokers.  I have already mentioned that Ms Harkness attended though she was not a senior adviser and did not attend the office on a Friday.  Ms Manning sought to brush aside these matters by asserting that the merger was an important event that had the capacity to impact significantly on the affairs of Arrive’s clients.  I am not sure that I accept that explanation.  If the meeting was so important then Mr Walsh and Mr Gray would have been in attendance.  I believe it more likely that the meeting was (and perhaps was intended to be) a “sales pitch” by GSJBW.  This is how it was perceived by Ms Harkness.  I also think that Ms Manning agreed to the meeting to discover what prospects there were at GSJBW for her and possibly her group.  I suspect that Mr Voigt and Mr Evans had the same thing in mind.

18                  Not surprisingly then a few weeks after the meeting Ms Manning received an offer of employment from Mr Evans.  The terms of the offer are not in evidence but Ms Manning said that the terms were worthy of “serious consideration”.  She also had in mind the possibility that if she went to GSJBW her group and Arrive’s clients might go with her.  For all practical purposes Ms Manning regarded the clients as her own:  she had “[brought them] in the door”.  But Ms Manning knew that she might be in trouble if she encouraged her clients and her group to move to GSJBW.  So she sought advice from her solicitor.  The precise issues upon which advice was sought are to be found in her letter of instruction.  The letter is undated but was written before she met her solicitor on 12 November.  The letter reads: 

“Further to our telephone messages, I request assistance primarily with a review of Clause 11 (Post Employment Restraint) of my employment contract.  Obviously this matter is highly confidential and should not be discussed with anyone but myself.

I am currently the Victorian Head and Senior Adviser of Arrive Wealth Management (a 100% subsidiary company of AMP) and am considering moving to Goldman Sachs JB Were (GSJBW) next year.  I request your advice in relation to Clause 11 in this regard and the practicalities should staff and/or clients potentially choose to work with me at GSJBW.

Attached for your reference are the following:

1.                  My employment contract and addendum letter/e-mails clarifying certain terms therein.

2.                  A number of items of correspondence between myself and the Arrive MD regarding a disagreement as to my 2002 (calendar year) bonus entitlement.  I used PwC Legal for assistance with this matter which was finalised primarily in my favour.

3.                  Further correspondence regarding 2003 (calendar year) bonus terms which I did not sign the acceptance form for – merely sending an e-mail noting that I could not endorse the significantly reduced bonus arrangement.

I look forward to our meeting on Wednesday 12^th November at 10.00am at your office.”

The advice given by the solicitor is summarised in a letter dated 19 November 2003.  It was as follows: 

“The executive should remain in place until after 31 December 2003 and if desired should then give notice.

While in continuing employment there is no restraint on contacting clients to cement personal/professional relationships and as this is the Christmas Season, perhaps good reason to do so, if so minded.

Any communication of this kind should be bona fide, transparent and recorded.

While in employment there appears no restraint on exploring options elsewhere including sketching the sort of structure that it is considered would maximise the productivity both of the Executive and the Executive’s pyramid.  The structure should not be personalised but should be in the form of an organisation chart.  Salaries and conditions of each position could be suggested.

Obviously the Executive should and would be meticulous and professional in performing all obligations to the existing employer.

As any change would be likely to attract useful media attention, thought should be given to the source and wording of appropriate briefings and releases and also to their timing.  While this would be attended to primarily by others, the proposed wording should desirably be the subject of legal consideration to ensure the interests of the executive are safeguarded.”

19                  To put the advice into context it is necessary to note the following.  First, the suggestion that Ms Manning remain with AMP Services until 31 December 2003 was motivated by the fact that if she were still an employee on that day she would be entitled to receive from PwC the balance of her “signing on” payment.  Second, the comment concerning the restraint on contacting clients deals with the position under the post-employment restraint.  Third, the reference to the “Executive Pyramid” is to Ms Manning’s group.  The advice given was that Ms Manning could discuss the composition of her group provided the discussion was not “personalised”, that is, that no names were mentioned. 

20                  An important question is whether Ms Manning told her group that she had received the offer of employment from GSJBW.  One can never be certain of the answer but, on balance, I think she kept the offer to herself.  The advice she received from her solicitor indicated she should proceed carefully.  Ms Harkness said that the offer had not been discussed with her and having regard to her friendship with Ms Manning if anyone had been told it would have been Ms Harkness.  In a practical sense also there was no need to discuss the offer with the group for I have no doubt that Ms Manning knew that if she went to GSJBW the others would follow. 

21                  Ms Manning again spoke with Mr Evans in mid-December 2003, probably at his instigation.  During their discussion Mr Evans repeated the offer of a position.  A short time later (just before Christmas) Mr Evans handed Ms Manning a draft employment contract for her consideration.  The offer was not accepted.  Ms Manning intended to remain with Arrive until she received the balance of her “signing on” bonus.  But I am sure that Ms Manning had decided that she would in due course accept the offer. 

22                  A further written offer (in the form of a letter) was received by Ms Manning on about 13 January 2004.  It is not clear why a further offer was made.  Nor does the evidence indicate whether this offer differed from the December offer.  However that may be, Ms Manning was offered the position of Victorian Manager, Strategic Wealth Management, to commence on 2 February 2004.  Another copy of the letter has the commencement date altered by hand to 9 February 2004.  The handwriting was not identified.  A few days later, on 18 or 19 January, Ms Manning received from PwC the balance of her “signing on” bonus.  She then called Mr Evans and accepted GSJBW’s offer.  She signed a copy of the offer letter on the morning of 20 January and immediately returned it to GSJBW. 

23                  Things then moved very quickly.  At around noon on 20 January Ms Manning telephoned Michael Furness, the acting Managing Director of the Arrive business during Mr Farrington’s absence.  Ms Manning told Mr Furness that she intended to resign to take up a position with another wealth management organisation.  She inquired whether she could inform the Arrive staff.  Mr Furness said she could tell the Melbourne staff but that he would inform the national team.  There is a difference between Ms Manning and Mr Furness on one aspect of their conversation.  Ms Manning says that she identified her new employer.  Mr Furness says she did not.  There is no utility in resolving this dispute for nothing turns on it. 

24                  In any event, the identity of her new employer was not kept secret.  Ms Manning told the Melbourne staff that she was leaving to go to GSJBW at an afternoon meeting which she convened for that purpose.  I am satisfied this was the first the group knew of her imminent departure for otherwise the meeting was a charade and I do not believe Ms Manning would have gone to such lengths simply to hide the fact that her group had prior knowledge of her move to GSJBW. 

25                  There was a second telephone conversation with Mr Furness at around 3.00pm.  Mr Furness, who was in the Sydney office, called to tell Ms Manning that he and Iain Reid (the National Dealership Development Manager of Arrive) intended to fly to Melbourne to meet Ms Manning that evening.  She agreed to await their arrival.  Ms Manning says (but Mr Furness cannot recall) that during this call Mr Furness told her that David Baber, Arrive’s Human Resource Manager, would also fly down for the meeting.  In the event, Mr Baber did not arrive until the following day. 

26                  Before travelling to Melbourne Mr Furness telephoned John McColl, who was a Zone Manager at the Melbourne office, and asked him to keep his eye on Ms Manning.  He wanted to make sure that Ms Manning did not remove anything from the office.  Mr McColl did as instructed until Mr Furness and Mr Reid arrived at around 6.00pm.  Before their arrival Ms Manning took the opportunity to telephone many of her clients (she made around 19 calls) to tell them she was leaving.  The precise content of these and other calls to clients is at the heart of this dispute and I will deal with those calls after I have got some other matters out of the way. 

27                  The first matter is what occurred at the evening meeting.  Ms Manning claims that it was agreed that her employment contract be terminated with immediate effect.  If true, this is a matter of some importance.  The plaintiffs allege that in breach of her contract and her statutory and fiduciary duties Ms Manning improperly poached Arrive’s clients while still an employee of AMP Services.  These allegations would not have much force if Ms Manning had ceased to be an employee on the evening of 20 January. 

28                  I propose first to set out Ms Manning’s account of the meeting, skipping over irrelevant aspects of the conversation.  The meeting took place on the fourth floor of the PwC building in a room that everyone referred to as the “quiet room”.  It is described that way because the room is off an open-plan office area and is used if a person wishes to have privacy.  Most of the discussion was between Ms Manning and Mr Furness.  Mr Reid took a backseat role.  In her affidavit Ms Manning gave a brief account of what occurred.  She said the meeting lasted approximately 10 to 15 minutes.  She had with her a letter of resignation which she handed to Mr Furness.  The affidavit then continues:  “Mr Furness said that they were happy to give me four weeks notice but that I would not be required at work during this time.  I said that I was not happy with that proposal, noting that I could work out the four weeks notice but would go crazy if I had to sit at home doing nothing.  Mr Furness said that in that case it would be immediate with no four weeks pay.  I queried this but ended up saying that it was not worth arguing over a few thousand dollars.” 

29                  Ms Manning gave a more detailed account in oral evidence.  She said that when she handed over her letter of resignation she commented that it had been hard to make the decision to leave.  Mr Furness expressed disappointment that she was leaving.  This was followed by a discussion about Ms Manning’s future role with GSJBW.  Mr Furness then referred to Ms Manning’s obligation to give four weeks’ notice and said:  “We won’t need you to come in to work for that [period] … we won’t need you in the office.  We might need to make a phone call to you here or there, and you might have to come in for client hand-over but probably not.”  Ms Manning protested the suggestion that she go on what she referred to as “gardening leave”.  Following a debate about the lawfulness of this requirement Mr Furness said “well the only other option is to go now but if you do, you don’t get the four weeks notice period.”  Ms Manning replied:  “I don’t think you can do that, that is not right. … surely I deserve to be paid my notice period”.  Mr Furness responded:  “We are not going to pay it, no.”  Ms Manning then said “well, fine then, I am not going to argue with you over a few thousand dollars … but I’m not staying at home on gardening leave.”  She said that Mr Furness made “no response to that that I can recall, [no] verbal response.” 

30                  Following this discussion Ms Manning was requested to hand over her security pass, company credit card and mobile telephone.  She pointed out that she had already given the security pass to Mr Furness so that he could go to the bathroom.  She did hand over the credit card but was told to keep the mobile telephone so that she could be contacted and told of the time of the meeting with Mr Baber the following morning.  In passing I note that Ms Manning did not at the time mention that she had acquired a new mobile telephone three days earlier.  The parties then moved to Ms Manning’s desk which was located in the open office area.  She packed her personal belongings and identified what she was leaving behind — client contact lists, folders of technical information and the like.  Ms Manning was then “escorted” from the building by Mr Furness and Mr Reid. 

31                  The critical aspect of the conversation as outlined by Ms Manning is the discussion about the option that she leave immediately and forego four weeks’ pay.  She contends this amounted to an agreement to terminate her employment contract.  Mr Furness denies such agreement.  In his evidence in chief he gave the following account.  He confirmed that he told Ms Manning that she should not come into the office during the notice period.  He recalled Ms Manning saying that she had been advised that placing her on “gardening leave” was legally unenforceable.  Mr Furness’ response was that the issue would be discussed with Mr Baber the next day.  He conceded that he “did state that there may have been an option to waive the notice period, and as a result of that there may be the need to forego four weeks’ pay.  Angela said that she wasn’t really worried about a few thousand dollars.”  During his cross-examination Mr Furness went into more detail: 

“Q:      [Y]ou were really stating what the position was so far as the employer – your company was concerned?

A:        Yes.

Q:        At this stage in the narrative did Ms Manning say to you that she wasn’t willing to sit out at home for four weeks and do nothing?

A:        Yes.

Q:        And you then said to her, didn’t you, that, ‘The only other choice was to go now, but if you go now you will not be paid your four weeks notice.’?

A:        Words to that effect.

Q:        Words to that effect?  And did she then say to you she didn’t think that was right?  She didn’t think you could do that?

A:        I don’t remember.

Q:        Well, I put it to you that that’s what she said to you?

A:        I don't recall.

Q:        It’s possible that she said that in response to that?

A:        Possible, but I don’t remember it specifically.

Q:        And she then says she said to you, ‘Surely, I deserve to be paid the four weeks notice.’?

A:        I don’t recall.

Q:        And you said, no, she didn’t?

A:        I don’t recall.

…

Q:        So your position is that she immediately said to you, in relation to the waiving and foregoing of four weeks pay, ‘I’m not worried about that, it’s only a few thousand dollars.’?

A:        My recollection, yes.”

32                  Mr Reid also gave evidence.  Unfortunately his recollection of the conversation is very vague.  In his evidence in chief Mr Reid attributed to Mr Furness the following response to Ms Manning’s complaint about being put on “gardening leave”:  “Nothing is going to be agreed tonight, we will have to wait for Mr Baber to come down the following day.”  In cross-examination Mr Reid described the discussion that followed Ms Manning handing over her letter of resignation: 

“Q:      Now, what were the options that were discussed?

A:        Well, the first – the first option was essentially gardening leave.  So, we – ‘You will remain employed throughout your period of notice, but you wouldn’t necessarily be required in the office’.

Q:        All right.  And what other options?

A:        Well, other – another option was later discussed, but after some discussion around the first option.

Q:        All right.  Well, the discussion around the first option was to the effect that Ms Manning wasn't happy about that.  Is that correct?

A:        That’s true.

Q:        Yes.  And the second option or any other options that were then discussed?

A:        Well, Mr Furness said – I think Mr Furness was – was a little perplexed by the question, but said that – well, I presumed it would be immediate termination without payment in lieu of notice, or words to that effect.

Q:        All right.  And what was Ms Manning’s response, if any, to that?

A:        I can’t recall the specific response.  I can’t recall a response.

Q:        Are you saying that she said nothing to that, or simply that you cannot recall whether she responded?

A:        Well, I think it was – it was mainly in relation to the – sorry – the – the payment in lieu of notice, and she did make a response in relation to that, and she basically said that – or rather flippantly, ‘Why would I bother about a few thousand dollars’.

Q:        All right.  Now, I take it that relates to whether or not she’s going to receive pay in lieu of notice.  Is that right?

A:        It does, yes.

Q:        That was in the context of Mr Furness saying, ‘Well, one of the other options, or the other option is, immediate termination with no pay in lieu of notice’?

A:        That’s right, yes.

…

Q:        All right.  Didn’t Ms Manning say – I withdraw that.  Didn’t she say words to the effect of, ‘I don’t think you can do that, that’s not right’?

HIS HONOUR:   In relation to what?

            In relation to not paying, not giving her pay in lieu of notice.  Didn’t she say words to the effect of, ‘You can’t do that,’ or ‘That’s not right’?

A:        I can’t recall those words.  The words I remember her mentioning was a flippant comment about ‘Why would I bother about a few thousand dollars?’  They’re the only words I can remember.”

33                  The final piece of evidence is a note of Mr Furness’ account of the meeting taken by Mr Baber on 21 January.  I will set out the note in full.  It is a business record of Arrive and, if it matters, all the parties to the conversation were called to give evidence.  The note relevantly reads: 

“6.10pm

Level 4

Quiet room

•          Michael acknowledged phone call to resign

•          Michael let her know what would happen tomorrow,

                        David Baber coming down tieing [sic] up the issues tomorrow

•          Michael mentioned continuing the employee [sic], not required to come in, serving out 4 weeks

•          Angela said Gardening leave?

•          Michael Yes

•          Angela; not comfortable with that

•          Michael; need to go in to detail tomorrow

•          Angela said I have had advice around the enforceability of that

•          Michael said would mean foregoing entitlements in lieu

Angela said she reserved the right to the payment in lieu

Michael said we’ll not debate it here

            valuable to our business but we need to discuss

•          set up meeting for tomorrow

•          Mentioned can’t talk to clients

•          Angela said she spoke to 10-15 client saying she was leaving

•          Angela said PwC wasn’t doing the right thing any more …… It was an issue

O/S ↓                           •           She handed over letter

Quiet                           •           AMEX card & security card – MF

↓

Moved back to her work station

Angela pointed out some things IP of Arrive leave it behind

End 6.45pm”

34                  Ms Manning contends that an agreement was reached that in consideration for the release by her of her right to receive four weeks’ pay, Mr Furness agreed that Arrive would release her from her obligation to serve out a four week notice period.  The question is whether the parties gave their assent to this asserted exchange of promises.  On balance, and I must say that I have wavered on the point, I do not think they did.  Ms Manning’s case hinges on my acceptance of the proposition that she had agreed to give up four weeks’ pay.  This is to be inferred from her statement that she was not worried about a few thousand dollars.   It may be accepted that in the situation in which she found herself Ms Manning was not “worried” about such a relatively small amount.  But I do not accept that Ms Manning said that she was prepared to forego that payment.  Nor is it clear that Mr Furness agreed to release Ms Manning from her contract.  First, I do not believe that Mr Furness understood Ms Manning to be making an offer to give up her pay.  Mr Baber’s note records that “Angela said she reserved the right to the payment in lieu” and that Mr Furness responded:  “We’ll not debate it here.”  This has the ring of probability about it.  Second, Mr Furness’ statement that Ms Manning’s position would be resolved at the meeting with Mr Baber (a statement which I accept he made) puts an end to the argument that the parties had reached any final agreement on Ms Manning’s position that evening. 

35                  This conclusion receives strong confirmation from the letter dated 21 January which Ms Manning delivered to Mr Furness immediately following her meeting the next morning with Mr Baber, Mr Furness and Mr Reid, as well as an e-mail from her solicitor dated 23 January 2004.  Each deals with the purported termination of Ms Manning’s employment.  But the manner in which the employment contract is said to have been terminated is different from the manner now alleged.  In her letter Ms Manning wrote: 

“I remind you that on my delivering my 4 weeks’ written notice of resignation on 20 January 2004 I was immediately required to surrender my access card and corporate credit card and instructed not to attend for work. 

The summary termination of my employment in the circumstances referred is a repudiation of the obligations of the Company under my contract of employment which I accept, reserving my entitlement to be paid for the period of 4 weeks written notice referred to in my letter of resignation.”

In the e-mail Ms Manning’s solicitor wrote: 

“In circumstances where an employee’s access and credit cards are impounded, her phone is required to be surrendered, she is instructed not to attend at her ordinary place of work and is watched while she removes personal effects from her office we think it is clear her employment is being terminated.”

This shows that Ms Manning was not then acting on the basis that her employment contract had been terminated by agreement.  I accept that there is a limit to what one can make of a party’s conclusion about the legal effect of a conversation.  When a court is required to determine whether parties have assented to an agreement it is necessary for the court to look to the external or objective appearance of the parties’ intention as manifested by their actions and not to their subjective intentions.  The objective theory applies equally to an agreement to discharge an agreement.  So the fact that neither Ms Manning nor her solicitor was of opinion that there was such agreement is, on one view, irrelevant.   On the other hand it does suggest that non-contractual language passed between the parties. 

36                  Returning to the narrative, the next relevant event is the meeting with Mr Furness, Mr Reid and Mr Baber.  The meeting began around 10.00am on 21 January.  Mr Furness handed Ms Manning a letter which drew to her attention her “continuing contractual obligations” including the confidentiality clause (cl 9) and the post-employment restraint clause (cl 11).  The letter went on to say:  “During the remainder of your notice period there will generally be no need for you to attend the office (except perhaps to assist with the handover of your clients to other Arrive planners – in which case I [Mr Furness] will let you know).  I should remind you that you remain an employee during this period and must not act against Arrive’s interests.”  Nothing else of any consequence occurred at the meeting. 

37                  In the days following the meeting Ms Manning continued to telephone her clients, especially those with whom she had a close relationship.  For the most part this was a relationship that had been established while Ms Manning was at PwC as most of her clients had followed her to Arrive.  In all she called approximately 80 clients to tell them she was leaving.  Around 75% of those clients moved with her to GSJBW.

38                  It is now convenient to mention what happened to Ms Manning’s group, in particular Ms Harkness, Mr Hufton, Mr McGrath and Mr McCarthy.  Within a day or so of Ms Manning giving notice, each of them had applied for, and a short time later was offered, a position with GSJBW.  Ms Harkness sought a position in an e-mail she sent to Mr Moir at 10.42pm on 20 January.  Mr Moir responded at 7.16am the next morning.  He informed Ms Harkness that she would be interviewed on 22 January.  By 10.42am on 21 January the others had contacted Mr Moir also seeking employment.  Five days later each had been interviewed and was offered a position.

39                  It is alleged that Ms Manning improperly persuaded the group to leave Arrive and join GSJBW.  Ms Manning says she was not involved in their decision to move.  Indeed, in her affidavit Ms Manning said that it was only after the members of the group had resigned that she was told that each had decided to leave.  I simply do not accept this story.  For one thing, during her cross-examination Ms Manning conceded that each member of the group had told her they had applied for employment with GSJBW.  For another thing, Ms Manning’s telephone records indicate that between 21 January and 27 January she spoke on several occasions with each of Ms Harkness, Mr Hufton and Mr McCarthy.  Then there is the fact that around 27 January Ms Manning discussed with Mr Moir the bonus commissions that should be paid to “people that may join” GSJBW.  Ms Manning said that in this discussion no names were mentioned because she had been instructed (presumably by her solicitor) that she should not “talk specifics”.  Nonetheless, from what Ms Manning told Mr Moir he was able to determine the commission to be offered to each member of the group.  Finally there is the fact that each member of the group sent his or her application for employment to Mr Moir.  This is no coincidence.  I have no doubt that Ms Manning suggested that the applications should be directed to Mr Moir.  If she did not tell them all she informed at least one who then told the others.

40                  It may be convenient at this point to summarise my findings in relation to Ms Manning’s involvement in the group leaving Arrive.  First, Ms Manning kept to herself that she was contemplating taking a position with GSJBW.  Second, she told the group of her move on 20 January.  Third, following that announcement it is likely that Ms Manning spoke to some of the group about them applying for a position at GSJBW.  For example, I am sure that she spoke to Mr Hufton before he applied for a position.  On the other hand, I suspect she did not discuss the matter with Ms Harkness, at least not before the latter sent her application.  Fourth, Ms Manning did not encourage the group to move to GSJBW.  The members needed no such encouragement.  They had been with Ms Manning since their time at PwC.  They formed a successful working unit.  They knew that GSJBW was expanding its advisory division.  They no doubt knew without being told that Ms Manning would support their move.  Fifth, there was no prearrangement between Ms Manning and GSJBW that if any member of her group applied for a position one would be offered.  To the contrary, the evidence obtained under subpoena from GSJBW suggests that each application for employment were considered on its merits.  Finally, although Ms Manning did not induce her group’s move, she facilitated the move at least by suggesting an appropriate guarantee bonus to be offered and she may also have been involved in finalising other terms and conditions. 

41                  The next issue to be resolved is precisely when Ms Manning’s employment with AMP Services came to an end.  Her employment contract required four weeks’ notice so unless terminated earlier the contract would have terminated by effluxion of time on 17 February 2004.  In fact it was terminated earlier. 

42                  In Ms Manning’s letter of 21 January 2004 she asserted that her employment had been summarily terminated on 20 or 21 January on the basis that AMP Services had repudiated the employment contract which entitled her to bring the contract to an end.  The conduct said to be repudiatory was the instruction not to attend work together with the confiscation of her corporate credit card and security access card. 

43                  Ms Manning accepts (correctly in my opinion) that upon giving notice she could be instructed to stay away from work during the notice period if there was an express term to that effect.  On the other hand she says (also correctly in my opinion) that if there was no such term then AMP Services was obliged to provide work for Ms Manning because part of her remuneration was based on performance:  see eg William Hill Organisation Ltd v Tucker [1999] ICR 291. 

44                  In this case the employment contract permitted the employer, AMP Services, to require Ms Manning not to attend work for some or all of the notice period while continuing to pay her wages.  I have already set out cl 7 of the employment contract.  It is convenient to repeat para 3 of that clause which provides:  “AMP may elect to pay you salary in lieu of notice or require you to work during part or all of your notice period.”  What Ms Manning was told at the meeting on 20 January amounted to the exercise of the option conferred by that clause.  The instruction was repeated at the meeting on 21 January, as well as in AMP Service’s letters of 23 and 27 January to Ms Manning’s solicitors.  The instruction was not a repudiation of the employment contract.  It was the exercise of a right conferred by the contract. 

45                  During the course of argument Ms Manning attempted to rely on two other incidents as a repudiation of the contract which justified her purported termination of it on 21 January.  The first is steps taken around 23 January to revoke Ms Manning’s status under the Corporations Act 2001 (Cth) as an Authorised Representative of Arrive and the second is the instruction on 4 February to terminate Ms Manning’s fortnightly salary payments.  This conduct is not repudiatory.  Even if it were, it would not assist Ms Manning.  It is a well established rule of contract law that if a party gives an incorrect reason for terminating a contract this does not prevent him from later asserting a good reason, whether or not he was aware of the reason when he brought the contract to an end:  Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, 377-378.  The rule is so well established it needs no elaboration.  But the rule only applies if the unstated (and sometimes unknown) ground was available at the time the contract was brought to an end.  If the repudiatory conduct occurs later it cannot be relied upon retrospectively but only as a trigger for a later acceptance, and there was none.  Further, by the time the second of the events had occurred Ms Manning had begun to work for GSJBW although still an employee of AMP Services.  For example, she attended GSJBW’s office on most working days, she sat in on at least one interview with a client (and probably gave advice to the client during the course of the interview), she helped draft letters to clients of Arrive to assist them to transfer their business to GSJBW and she presented a paper at an in-house conference.  This put her in breach of her employment contract (a breach not pleaded) and disentitled her from terminating the contract for repudiation:  Foran v Wight (1989) 168 CLR 385. 

46                  Ultimately the employment contract was terminated on 16 February.  On that day Arrive wrote to Ms Manning stating that in view of certain (unstated) matters that had come to light “it appears that you have committed acts which justify AMP now summarily terminating your employment.  Accordingly your employment is terminated as of 16 February 2004.”  It is common ground that if not discharged earlier the contract came to an end on 16 February 2004. 

47                  I will now deal with the most important part of the case, the conversations between Ms Manning and her clients.  I should first point out that the only evidence of these conversations is that given by Ms Manning.  This was the result of tactical manoeuvring on both sides.  Either the plaintiffs or Ms Manning could have called the clients (or some of them) but decided not to do so, perhaps in the expectation that the other side would call them or perhaps in the hope they would not be called at all.  This was in circumstances where the parties knew what the clients, if called, would say.  The plaintiffs’ senior legal counsel (Katriina Tahka) and Victorian State Manager (Manny Fiteni) had conducted telephone interviews with many of the clients to find out what Ms Manning had said to them.  Notes of these interviews were produced on discovery.  The defendants sought to tender the notes but, following a voir dire, I ruled them not to be admissible as business records by reason of s 69(3)(a) of the Evidence Act 1995 (Cth).  The result was that the plaintiffs had in their possession documents (the interview notes) which are likely critical to the resolution of the issue at hand but would not permit their tender or call the clients, while the defendants knew what the clients would say but would not bring them to court. 

48                  If it were possible, I would have called the clients myself in order to get to the truth of the matter.  After all, the principal object of a court proceeding is to find the truth and arrive at the right result.  Or at least that should be the object.  Unfortunately, while the adversary system is touted as “the greatest legal engine ever invented for the discovery of truth” (5 Wigmore on Evidence (3^rd ed, 1940) §1367) it often falls well short of the mark.  The problem is that the system leaves it to the parties to shape the issues to be litigated and to call the evidence they feel will resolve those issues.  And in a civil case it is not permissible for the judge to go behind the parties to call witnesses:  Enoch and Zaretzkey, Bock & Co’s Arbitration [1910] 1 KB 327.  Perhaps this will one day be reformed.  But until that occurs all a judge is able to do when faced with a refusal by a party to call relevant evidence is, if appropriate, to apply the rule in Jones v Dunkel (1959) 101 CLR 298. 

49                  The conditions for the application of that rule are explained in Payne v Parker [1976] 1 NSWLR 191, 201-202.  Opinions have differed as regards whether these conditions can be satisfied when a witness is equally available to both parties.  Some judges have said that in such circumstances no inference is available:  see eg Claremont Petroleum NL v Cummings (1992) 110 ALR 239.  This is not a universally accepted view.  For example, in Earle v Castlemaine District Community Hospital [1974] VR 722, 728, a decision of the Full Court of the Supreme Court of Victoria, Little J, cites with approval the following passage from 2 Wigmore on Evidence (3^rd ed, 1940) §288, 169-171:  “The more logical view is that the failure [by both parties] to adduce is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances.  To prohibit the inference entirely is to reduce to an arbitrary rule of uniformity that which really depends on the varying significance of facts which cannot be so measured.”  The judge went on to say that it would be erroneous to lay down any “general rule” that if a witness was available to both parties no inference could be drawn against either and that it must depend on the facts and circumstances of a particular case.  This, I think, is the correct view.