FEDERAL COURT OF AUSTRALIA

Keays v J P Morgan Administrative Services Australia Limited [2011] FCA 358

THE COURT ORDERS THAT:

1.    The application be dismissed.

THE COURT DIRECTS THAT:

1.    Any application for costs be made in written submissions filed together with evidence in support within 14 days.

2.    If the respondent opposes an application for costs it must do so by written submission together with any further evidence upon which it relies within 14 days of service of the applicant’s written submissions.

3.    Any submissions or evidence in reply should be filed within a further seven days.

4.    If no party seeks an oral hearing the question of costs will be dealt with on the basis of material filed in compliance with directions 1, 2 and 3 above.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    The respondent (“JPM”) is the management company of a well known Australian merchant bank, which is part of a world-wide group of companies of the same character. The applicant (“Mr Keays”) is a very experienced and successful senior executive, specialising in sales of interest rate derivatives products, who was recruited from Deutsche Bank Australia (“Deutsche”) in late 2005 to work for JPM.

2    Contrary to expectations, Mr Keays’ employment with JPM was relatively short-lived. His services were terminated on 5 June 2008 for the stated reason that his position had been made redundant. Mr Keays’ case is that JPM’s conduct in connection with the formation of his contract of employment contravened s 52 and s 53B of the Trade Practices Act 1974 (Cth) (“TP Act”) (i.e. it was misleading or deceptive or likely to be misleading or deceptive, or was liable to mislead Mr Keays about aspects of his employment with JPM) and that JPM breached his contract of employment. Mr Keays has sought damages calculated, generally speaking, on the premise that he should be paid all his expected remuneration until 4 January 2018 (when he would be 60 years of age). The total amount was substantial. It exceeded $6 million.

Background

3    In late 2005 Mr Keays was 47 years old and approaching his 48th birthday. In the years since he graduated from the University of Western Australia in 1982 with the degree of Bachelor of Economics, he had worked for Wardley Australia Limited (which was taken over by HSBC), Citigroup and Deutsche. On his evidence, at Wardley Australia/HSBC he was one of the first people to operate in the derivatives market. After working for Wardley Australia/HSBC for about 13 years Mr Keays was approached by Citigroup. His evidence was that he was offered a position in charge of derivatives sales. After he commenced employment on that understanding the position was not made available and he was consigned to a lesser role. This experience contributed to his insistence, when approached in due course on behalf of JPM, on having a written position description as the basis for his employment.

4    Mr Keays took employment with Deutsche in 1996. He commenced in the position of an “associate director” in charge of derivatives sales for New South Wales. He progressed to “director”. His earnings increased (taking into account base salary, bonuses and stock entitlements) from $575,000 in 1998 to $715,000 in 2000 and 2001, fell back to $660,000 in 2002 (without a “stock bonus”), rose again to $843,750 in 2003 and were finally $1,174,500 (a “stellar year”) in 2004. Mr Keays left Deutsche in late 2005 before bonuses for that year were announced and forfeited a number of stock entitlements at the same time. Those matters were addressed in the arrangements made with him by JPM.

5    For the purpose of the present proceedings it is necessary to note a distinction between “public” and “private” side operations of a merchant or investment bank. The term “private side” refers to confidentiality arrangements made within merchant and investment banks, normally under the supervision of a compliance department, whereby “insider knowledge” acquired in the course of developing, proposing and constructing transactions for clients is kept confidential until released generally into the market. By way of example relevant to the present case, someone working on the private side at JPM is taken to know all the information held by JPM (and its related companies globally) and to be restricted accordingly. Those operating on the “public side” are not (nor presumed to be) privy to such information unless they are “wall-crossed” for particular transactions or dealings, when they come under specific restrictions concerning those transactions or dealings. Those on the private side are, subject to some very limited exceptions, always on the private side. Those on the public side, by contrast, only work under private side restrictions when wall-crossed for particular transactions. The separation between private side and public side operations is generally (and was at JPM) reflected by a physical separation of working space and strictly restricted access to private side areas and operations.

6    At Deutsche, Mr Keays worked on the public side. His evidence was that there was not, initially at least, a private side operation at Deutsche. During his career Mr Keays developed a reputation for putting together derivatives product solutions tailored to the particular circumstances of his clients. Except when he had been wall-crossed he was not restricted at Deutsche in the way he could propose such solutions. He clearly felt comfortable operating in that fashion and was successful at it.

7    As will become clear shortly, when Mr Keays was recruited to work for JPM it was to a position on the public side, as he had worked at Deutsche. Although, in that position, he was wall-crossed from time to time he was able to operate, as he had at Deutsche, in an environment where he was free, generally speaking, to devise derivatives products solutions for, and market them to, both JPM clients and the clients of other banks in an unrestricted way. He was not (except when wall-crossed) attributed with any insider knowledge that those in JPM on the private side might have about that, or any other, client. On the other hand, he was (except when wall-crossed) not privy to information that might have been turned to account in tailoring specific solutions to the needs of clients for whom JPM might be working on transactions not yet known to the market.

8    Mr Keays preferred the public side method of operating. However, as will be seen, his superiors at JPM came to the view that JPM’s interests would be better served if Mr Keays was moved to the private side. Mr Keays thought this course of action would jeopardise his earnings. His superiors did not. It was the disagreement about how, and from which “side”, he should perform his role which led in due course to the cessation of his employment with JPM. That circumstance, and the failure of JPM to compensate him as he wished for the loss of his employment, has led to the present proceedings.

The approach to Mr Keays by JPM

9    In late 2005 Mr Keays was approached by a representative of Highland Partners, a consultancy firm engaged by JPM to assist it to recruit a replacement for Mr Andrew Barnett who had recently left JPM. Mr Barnett’s position had been on the public side. On Mr Keays’ evidence he was not then seeking to leave Deutsche but such approaches were not uncommon and the position sounded interesting. Some exploratory meetings were held. Mr Keays was short listed by Highland Partners. There was some evidence which tended to suggest that Mr Keays was actually quite disaffected with Deutsche at about this time but it is not necessary to resolve any potential conflict in this area. Whether Mr Keays was an enthusiastic, or merely willing, recipient of the approach which was made to him is not to the point for the resolution of any relevant factual or legal issue in the case.

10    On 1 November 2005 Mr Keays was interviewed by Mr Russell Taylor, Head of Institutional and Credit Sales for JPM and Mr Stuarte Dagg, Head of Rates Trading and Risks. During that interview Mr Keays requested a written job description for the position in question. By way of explanation of his request he referred to his Citigroup experience. Mr Taylor prepared a job description and forwarded it to Highland Partners on 10 November 2005. It was then provided to Mr Keays. The document sent to Highland Partners and provided to Mr Keays, was the third iteration. The position title was to be “Head of Corporate Derivative Marketing”. That is the title which was later given to Mr Keays when he commenced at JPM and the title he had when his employment was terminated. The job description contained the following statement:

The “Head of Corporate Derivative Marketing” role will be a wall straddling position with the opportunity to have desks on the Investment Bank (private side) floor and one in the dealing room. It is expected the person will attend virtually all IB planning sessions, weekly meetings and client and transaction briefs in an effort to identify and educate both the IB specialist staff and customers of derivative needs, opportunities and hedging solutions. The IB bankers will rely heavily on the skills and product knowledge of the marketer to assess timing of involvement and dialogue with clients, types of risk management products suitable that may cover FX, rates, credit and equities. This person will be the essential link between the execution team and markets businesses and the Investment banking clients.

(Emphasis added)

11    “Wall straddling” is not the same as wall-crossing. Apart from this description, the paragraph I have extracted, on the evidence, generally identified work that would be carried out from the private side, either on a permanent basis or by being wall-crossed for the purpose. An earlier iteration of the job description had actually described the position as a “private side position” rather than a “wall straddling position” but was otherwise in very similar terms to that shown to Mr Keays. Further paragraphs in the job description identified work that could be done either on the public side only or on either the public or private side.

12    The use of the term “wall straddling”, the earlier idea of describing the position as a private side one and the emphasis given to the private side contribution in the paragraph I have extracted, were all, it became clear from the evidence, inappropriate in the operating context at JPM at that time. Mr Taylor’s evidence was that his first inclination to call the position a private side position was abandoned for the reason that the position was to report to Mr Taylor, whose own position was on the public side. Because it was not appropriate to have a private side position reporting to a public side superior, Mr Taylor modified the initial description of the position as a private side position, to one where it was described as a wall straddling position. However, that proposal was also discontinued after a short time, in part in response to Mr Keays’ own views.

13    Mr Keays was never shown the earlier version of the job description, where the position was described as a private side one. He saw only the version provided to Highland Partners where the position was described as a “wall straddling” one. However, he had reservations about the practicality of that proposal. He took the view that JPM’s compliance department was unlikely to allow him to “wall straddle” on a permanent basis. Nevertheless, he was prepared to remain open to the possibility when the idea was put to him so long as he could still work on the public side. He therefore did not resist the description. He was certainly happy to be wall-crossed from time to time for specifically identified transactions. Mr Taylor subsequently came also to the view that it would not be appropriate for a wall straddling position to report to a public side superior any more than it would be for a private side position to do so. As a result, the wall straddling proposal never came into operation. Although the job description was not amended before Mr Keays’ employment commenced, both he and JPM understood that the position was not a wall straddling one but a public side one.

14    The day after the interview with Mr Taylor and Mr Dagg, Mr Keays met with Mr Robert Priestley, the Australian CEO of JPM. Mr Priestley interviewed three persons for the position but Mr Keays was the leading candidate. There is adequate material to support the conclusion that Mr Keays was identified relatively early as the best choice and that this impression was confirmed as discussions progressed. It was a short time later that the idea that the position should be a wall straddling one was abandoned within JPM, a circumstance which Mr Keays accepted, agreeing to “be brought over” (the wall) as and when required.

15    Mr Keays and Mr Priestley met again on 28 November 2005. By then almost all matters had been negotiated. There remained the final questions of remuneration and status, as well as a small number of questions from Mr Keays about specific issues. At the meeting with Mr Priestley on 28 November 2005 those further questions were dealt with. There was a short successful discussion about remuneration. Mr Priestley agreed to pay a sign on bonus of $500,000 to replace the 2005 Deutsche bonus which Mr Keays would forego, to guarantee a bonus of USD$450,000 for 2006 and to pay a base salary of $325,000. The base salary was within the band for “managing director” (in the world of merchant banking this had nothing to do with a position on any board of directors). Managing director status was Mr Keays’ final, but firm, requirement. It was not within Mr Priestley’s gift, but it was approved internationally after further representations by Mr Priestley.

16    At one point in the process Mr Keays had a video link conference with a number of JPM related senior international executives. As his evidence about one aspect of this meeting is the central element of one part of his claims for relief I shall set it out:

Who was Ralph Parks?---He was the – he was head of J.P. Morgan Asia except Japan, so he was responsible for all of their operations in Asia, apart from the Japan office.

Right. And do you recall the conversation with him at this point of time?---I recall bits of the conversation. I was – I was brought into a video conference room and sat there for a couple of hours talking to people I hadn’t met before via a big screen, but I do recall one specific line from Ralph Parks.

And what was that?---It was the fact that before I went in for this conference I was speaking to my wife on the phone and she said, “I hope it all goes well, making a move this late in your career.” I mentioned that to Ralph Parks at the end of the conversation and he smiled and said, “You can tell your wife you’ve done good.”

17    This remark by Mr Parks, coupled with Mr Keays’ explanation that he did not anticipate a further career move before retirement, became the foundation for a suggestion that Mr Parks (and therefore JPM) promised Mr Keays ongoing permanent employment. It is convenient to indicate at once that, having regard to the whole of the circumstances, including the formalities attending Mr Keays' engagement, Mr Parks’ remark does not qualify for attention either as a contractual term (whether express or implied) or as a representation about an existing or future matter which was misleading or deceptive or likely to be so. As will be seen, the terms of the written contract of employment to which Mr Keays bound himself shortly thereafter left no room for any contractual term of permanent employment. Nor is there any evidence to suggest that Mr Keays was (or was likely to be) misled to believe that the terms of his employment would be other than those on which he was to formally and expressly contract.

The contract of employment

18    A formal offer of employment was made to Mr Keays by letter dated 14 December 2005. It was accepted by being countersigned by him the same day. On that day also Mr Keays gave three month’s notice of resignation to Deutsche and was immediately relieved of the requirement to attend work for that period, an outcome he described as “gardening leave”, which in his experience accorded with market practice. The position offered at JPM was identified in the formal offer of employment as “initially in the position of Head of Corporate Derivative Marketing, in the Credit & Rates Market division”. Mr Keays was to report to Mr Taylor. His title would be Managing Director. The letter of offer confirmed a base salary of $325,000 per annum (including superannuation contribution), a sign-on guarantee of $500,000 and a first year bonus guarantee of USD$450,000. In addition his forfeited, unvested, Deutsche stock or stock options were to be effectively replaced by JPM stock. The terms as to title, status and remuneration were all in accordance with the outcome of the negotiations.

19    The contract was to be terminable on three month’s notice by Mr Keays, or three month’s notice or payment in lieu by JPM. This period of notice conformed to what the evidence disclosed was common practice at this level of seniority in the merchant banking sector, at least in New South Wales. It was referred to often in the evidence as “gardening leave”. It was the period of notice that Mr Keays gave to Deutsche, which expired on 13 March 2006. I am satisfied that these terms were acceptable to Mr Keays and were accepted by him.

20    The letter of offer did not set out the specific responsibilities of Mr Keays’ position . However, I am satisfied that, as modified in discussion with Mr Keays between 10 and 28 November 2005, the agreed responsibilities and duties applying to the position of Head of Corporate Derivative Marketing were as set out in the job description provided by Mr Taylor to Highland Partners on 10 November 2005, which was given to Mr Keays to meet his request for such a written statement, except that the paragraph extracted earlier in the judgment was effectively inoperative. Although the job description was never re-written I am satisfied that the description of the position as a “wall straddling position” was treated by both JPM and Mr Keays as excised and the accompanying private side requirements were removed. That was the clear effect of the evidence and accords with the fact that Mr Keays did not ever work in a way, nor was required to work in a way, which accorded with that paragraph. I am satisfied that his was a position on the public side, which was wall-crossed as required. Mr Priestley’s evidence was that this was also “implicit” in his discussions with Mr Keays on 2 November 2005. Mr Priestley said the position could never have been a wall straddling position. That was a designation reserved for people like Mr Priestley himself, who authorised “wall-crossing”, not those who were “wall-crossed” like Mr Keays. To that extent, Mr Taylor’s proposal proceeded upon a misconception which never came to fruition and which was, as I have said, abandoned before Mr Priestley and Mr Keays met for a second, more decisive time to finalise matters within Mr Priestley’s discretion.

The first two years

21    Mr Keays commenced his employment with JPM (after his enforced gardening leave from Deutsche) on 14 March 2006. In accordance with arrangements discussed with him and referred to in the job description, he assumed responsibility for foreign exchange sales as well as other derivatives marketing. He operated from the public side and was wall crossed on a number of occasions. According to his evidence he generally met his targets.

22    Although his job remained unchanged during this period there were changes to his lines of reporting. Mr Keays accepted that such changes were normal in an organisation like JPM. He ceased reporting to Mr Taylor, was for a time reporting to Hong Kong and then reported to a Mr Wilcox in London.

Mr Herbert-Smith

23    JPM was in an expansion phase. Mr Keays’ recruitment was part of a methodical process under Mr Priestley’s stewardship (having become co-CEO in July 2002 and sole CEO in 2003) to build JPM’s business. In late 2007 Mr Jeffrey Herbert-Smith was recruited from Citigroup to work at JPM at the level of managing director as Head of Fixed Income. Mr Keays was to report to him from Mr Herbert-Smith’s commencement on 25 February 2008 (after his own period of three months gardening leave from Citigroup). Before Mr Herbert-Smith commenced he and Mr Keays met over lunch. Mr Herbert-Smith outlined his plans for the area of the business he would supervise at JPM. One of the initiatives he revealed to Mr Keays was a plan to bring in someone else (a Mr Jani with whom Mr Herbert-Smith had worked at Citigroup) to look after foreign exchange sales. He wanted to move Mr Keays to the private side. Mr Keays, on his evidence, showed immediate resistance to the idea of losing responsibility for foreign exchange sales. Nevertheless, when Mr Herbert-Smith commenced, the plan was implemented. Mr Jani was employed and given responsibility for foreign exchange sales. Mr Keays protested to Mr Herbert-Smith and to Mr Priestley, but to no avail.

24    Mr Keays appears to have been concerned about two principal issues arising from the proposed changes in arrangements. One was the reduction in his apparent level of responsibility. The other was the potential effect on his earning capacity. He felt that the likelihood of substantial bonus payments (generally the majority of his earnings) would be jeopardised by both aspects of Mr Herbert-Smith’s plan for his responsibilities. He also disagreed, as a matter of business methodology, with the private side model proposed by Mr Herbert-Smith for how he should discharge his principal function of selling derivatives products. Although Mr Keays accepted that he had the capacity to perform a role of the kind envisaged by Mr Herbert-Smith it also seems likely that he would have been, initially at least, outside his “comfort zone” operating in an environment, and subject to restrictions, which were not usual for him as a permanent way of doing business.

25    Mr Herbert-Smith did not share Mr Keays’ pessimism about the likely rewards. Nor did Mr Priestley. In addition, Mr Herbert-Smith seemed to have a clear idea of where he wanted to position that part of the business which was under his direct supervision and he had Mr Priestley’s backing. The difference of opinion between Mr Herbert-Smith and Mr Keays produced an uncomfortable compromise. Mr Keays lost his foreign exchange responsibilities, which were transferred to Mr Jani. He therefore lost some of the responsibilities explicitly identified in his job description. He did not, however, suffer any immediate financial prejudice, and may never have done so, despite his apprehension. His salary was unchanged and no occasion arose to assess the impact of this change on any bonus. The other changes proposed were, however, stated by Mr Herbert-Smith and Mr Priestley in their evidence, to be ones which, if accepted by Mr Keays, would have been to his overall benefit financially. That estimate was made by referring to the earnings available to Mr Keays’ replacement, who worked under the arrangements proposed to Mr Keays by Mr Herbert-Smith.

26    Although he could do nothing about the loss of responsibility for foreign exchange sales Mr Keays declined to accept the other changes proposed to him. There followed a period of time in which Mr Herbert-Smith attempted to persuade Mr Keays to a change of mind, and Mr Keays resisted. As part of the discussions Mr Keays requested that his proposed role be set out in writing. Mr Herbert-Smith provided a written description of the role on 20 May 2008. Although it included many responsibilities then being discharged by Mr Keays, and included also some attention to foreign exchange risks and solutions, it was to be a position entirely on the private side. On 28 May 2008 Mr Keays sent Mr Herbert-Smith the following email:

In anticipation of our 2:30pm meeting today, I thought you should have the following heads up.

I have read and carefully considered the job specifications provided last week for the new role. Whilst I appreciate the position may work, I cannot accept that role. I am ready to re-commence the role that I was employed to do, as described by the job specs that I agreed to before signing my original employment contract. As you have mentioned previously that this was not negotiable, then I can only surmise that my original role has been terminated, and as such assume that you will have placed me on a redundancy list.

regards

Colin

27    Shortly afterwards there was a meeting between Mr Keays and Mr Herbert-Smith. Each reiterated, and maintained, the position he had already taken. Mr Herbert-Smith did not have authority to agree that Mr Keays be treated as redundant. However Mr Herbert-Smith was prepared to support the idea and agreed to “speak to HR about whether that’s possible or not”. I infer that each of Mr Keays and Mr Herbert-Smith anticipated that some additional payment would be offered to Mr Keays if he was treated as “redundant” although they may not have shared a common idea of the possible scale of such a payment. There was a further, shorter, formal meeting on 5 June 2008. Mr Keays was provided with a letter terminating his employment. The letter commenced:

This letter confirms the recent advice given to you by Jeff Herbert-Smith that your position has been made redundant. Your employment with J.P. Morgan Administrative Services Australia Limited (JPMorgan) will conclude 5 June 2008. You will not be required to attend work after 5 June 2008.

28    The letter set out some apparently standard matters, including an offer of financial planning advice and what would happen in the event of re-employment within a short period. Relevantly for present purposes, it also stated the following:

(i)    Benefits and Compensation

(a)    Compensation

Upon the termination of your employment and based on your current Total Remuneration, you will be paid:

•    3 months’ pay in lieu of notice; and

•    a severance payment equal to 12 weeks pay.

All payments will be made less appropriate Australian taxes. In addition, you will receive statutory payments for any accrued and unused annual leave and long service leave (if applicable) less appropriate Australian taxes.

…

(iv)    Long Term Incentive Plan Awards

With respect to a position elimination, the terms and conditions of outstanding awards of Restricted Stock / Units and stock options / stock appreciation rights under LTIP granted on or after January 1, 2003 for heritage JPMorgan Chase employees or on or after July 1, 2004 for most other employees require the execution of the enclosed Release. If this Release is not executed, outstanding LTIP awards granted on or after January 1, 2003 for heritage JPMorgan Chase employees or on or after July 1, 2004 for most other employees will be forfeited as of the termination date. For awards granted before January 1, 2003 for heritage JPMorgan Chase employees or before July 1, 2004 for heritage Bank One employees, you are not required to execute a Release. Such awards will be treated in accordance with their terms and conditions applicable to a position elimination. Please refer to your Award Agreement(s) and the respective terms and conditions for additional information.

If you are a participant in the Deferred Compensation Plan, contact the Deferred Compensation Call Centre by calling (1-212) 552-5100.

…

Subject to your executing the deed of release enclosed with this letter and returning it to me, the payments outlined in section I of this letter will be made to you.

(Emphasis added)

29    The attached deed of release included the following provisions:

2.    Return of Deed Release and Payment

2.1    Provided JPM is in receipt of this deed duly executed by Mr Keays within 28 days of original signing, JPM will pay to Mr Keays:

2.1.1    A sum equal to 12 weeks pay based on a Total Remuneration of AUD375,000 per annum.

2.1.2    An additional sum equal to three months pay in lieu of notice.

2.1.3    An additional amount in respect of any accrued but unused statutory entitlements as at 5 June 2008.

2.2    JPM will within 30 days after receipt of this deed executed by Mr Keays, but no earlier than 5 June 2008, pay to Mr Keays the sums as outlined above less appropriate Australian taxes and Mr Keays agrees to accept such sums.

2.3    Notwithstanding any contrary provision in this deed, Mr Keays acknowledges and agrees that, in respect of any long term incentive plan (“LTIP”) awards (“Awards”) in which he may have participated as an employee of JPM:

2.3.1    In respect of Awards granted on or after 1 January, 2003, the terms and conditions of the LTIP provide that, in order for entitlements under such Awards to vest following termination of employment, rather than being subject to forfeiture, Mr Keays must execute a deed of release in respect of such termination, such requirement being satisfied by execution of this deed.

2.3.2    In respect of Awards granted prior to 1 January, 2003, such requirement does not apply and vesting of such Awards will be in accordance with the terms and conditions of the relevant LTIP pertaining to termination of employment.

2.3.3    Nothing in this deed alters or waives the terms and conditions of any relevant LTIP and any vesting of Awards will take place in accordance with and subject to the terms and conditions of the relevant LTIP. For that purpose, Mr Keays must comply with any requirements of the LTIP relating to vesting of Awards, including as to supply of information and documentation.

2.3.4    JPM has provided Mr Keays with information relating to the impact of termination on vesting of Awards and contact details of persons able to provide further information or clarification required by Mr Keays. Mr Keays has investigated and satisfied himself as to this issue and as to the terms and conditions of the relevant LTIP(s), relying on his own skill and judgement and legal and accounting advice in doing so.

3.    Release and Indemnity

3.1    Mr Keays agrees that the payment to be made pursuant to this deed fully satisfies any right (however described and however arising) and/or any claim that Mr Keays or any person or entity claiming through him has or may have against any member of the JPM Group in connection with his employment, the termination of his employment and/or any contract, agreement or arrangement between him and any member of the JPM Group.

3.2    Mr Keays releases each member of the JPM Group in connection with any present and/or future claims that he has or may have against any member of the JPM Group in connection with his employment, the termination of his employment, and/or any contract, agreement or arrangement between him and any member of the JPM Group.

3.3    This release covers all claims however described and however arising. It covers claims by and liability to anyone or any entity who or which claims through Mr Keays. It covers claims and liability that arise in the future. It does not cover any claim or liability in respect of workers compensation under any applicable legislation.

3.4    Mr Keays indemnifies each member of the JPM Group against any expenses, liabilities or losses incurred by them with respect to or arising from any claim made by Mr Keays or any person claiming through him against any of them relating to any liability of the type released under clauses 3.1 to 3.3.

…

5.    Non-Disclosure

5.1    Mr Keays agrees that he will not divulge to any persons the financial circumstances surrounding the conclusion of or the termination of his relationship with any member of the JPM Group, and specifically the amount and basis of computation of any payments made to him or the terms of this deed, except:

(a)    by the express prior written agreement of JPM;

(b)    to a professional adviser for the purposes of obtaining advice from that adviser where such adviser is ethically bound to keep client confidences; or

(c)    as compelled by law and Mr Keays agrees that damages would not provide an adequate sole remedy for any breach of this clause and that, without prejudice to any other remedies, JPM may seek equitable relief to restrain a breach.

…

8.    Bar to proceedings

8.1    The parties agree that this deed may be pleaded by all or any of them as a bar to any actions, suits, claims, demands or legal proceedings instituted by any other in respect of any matter arising out of or in connection with the subject matter of this deed.

9.    Acknowledgment

9.1    The parties acknowledge and agree that the terms of this deed are in full and final accord and satisfaction of each and every right (whether under statute or otherwise) which exists (or, but for this deed may hereafter have existed) with respect to any of the matters referred to in this deed.

30    Mr Keays had 28 days in which he might execute the deed of release, but he declined to do so. Entitlement to some of the proposed payments referred to in clause 2.1 clearly did not depend upon execution of the deed of release. Neither the unilateral announcement in the letter of 5 June 2008, nor the terms of the deed of release, could have that result. Although JPM thereafter paid Mr Keays his statutory entitlements and an amount representing three months pay in lieu of notice, JPM did not pay him any amount of severance pay on account of the redundancy of his position. He received nothing for his unvested shares. On 2 September 2008 Mr Keays commenced the present proceedings.

The pleadings

31    The case proceeded to trial on the basis of a further amended statement of claim, after a number of amendments had been made to the initiating process. The causes of action presented by the further amended statement of claim alleged breach of Mr Keays’ contract of employment and breach of s 52 and s 53B of the TP Act.

Contractual terms

32    The asserted terms of the contract of employment, which it was claimed were breached, were pleaded as follows:

27    It was an express condition of the Agreement that:

(a)    the JP Morgan role was at Managing Director level;

(b)    the JP Morgan role was superior, or alternatively, would represent a promotion, to the position the applicant held with Deutsche;

(c)    the JP Morgan role was an ongoing and long term role, the nature of which was as set out in the Job Description and the Taylor representation;

(d)    if, in accepting the JP Morgan role, the applicant suffered any loss of Deutsche stock entitlements, that JP Morgan would fully compensate him for such loss by way of cash payment and/or issue of equivalent JP Morgan stock interests;

…

28    Further, and in the alternative, it was an implied term of the Agreement that should the applicant’s employment with JP Morgan be terminated, then the applicant would be given reasonable notice of termination.

Particulars

This term is implied by law.

29    Further, and in the alternative, it was an implied term of the Agreement that should the applicant’s employment with JP Morgan be made redundant that JP Morgan would compensate the applicant for any loss relating to:

(a)    the position of significant seniority, which seniority was known to the market, that the applicant had attained at Deutsche;

(b)    the security of being a long term employee, which the applicant enjoyed at Deutsche; and

(c)    the entitlement, in the event that his employment should be made redundant, to significant payments such as the applicant would receive from Deutsche.

Particulars

This term is implied as a matter of fact.

33    The case was not conducted with complete fidelity to these pleaded assertions. In particular, a claim was made during the course of submissions for payment in satisfaction of an alleged contractual term, not identified in the pleadings, that Mr Keays be paid redundancy pay in accordance with a JPM policy said to have been incorporated in his contract of employment. The claim, so identified, was based on two circumstances. One was that the deed of release presented to Mr Keays contemplated payment for redundancy calculated in accordance with the policy. The second element of the claim, which was necessary to provide a contractual foundation for it, was that the policy in question had been incorporated into Mr Keays’ contract of employment. Ultimately, the evidence did not support that contention.

34    In addition to the pleaded (and asserted) contractual terms it was also pleaded that presenting Mr Keays with a deed of release represented a breach, or an anticipatory breach, of his contract of employment and that events which occurred after Mr Herbert-Smith’s engagement, constituted a repudiation of Mr Keays’ contract of employment.

Trade Practices Act

35    A number of representations, each of which was claimed to have been misleading and deceptive, and liable to mislead Mr Keays about aspects of his potential employment with JPM, were asserted. The ones that remained relevant to consider once the evidence had concluded (some of which were restated more than once) were:

-    that the JP Morgan role would be superior, or alternatively, would represent a promotion, to the position the applicant held with Deutsche;

-    that the JP Morgan role would be an ongoing and long term role; and

-    that if he accepted the JP Morgan role, and were to suffer any loss of Deutsche stock entitlements by so doing, that JP Morgan would fully compensate him for such loss by way of cash payment and/or issue of equivalent JP Morgan stock interests.

36    It was also asserted that representations were made by JPM that Mr Keays would have “complete responsibility for the corporate derivatives marketing and foreign exchange sales business on both the private and public sides of JP Morgan’s business”.

37    The representations were asserted to be ones as to future matters and therefore subject to the operation of s 51A of the TP Act. Section 51A of the TP Act provides:

51A(1)    For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.

(2)    For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.

(3)    Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead.

38    The operation of s 51A was considered in McGrath v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 (see especially [44], [192] and [198]). Provided some evidence was adduced by JPM relating to the question of whether there were reasonable grounds for making a relevant (and established) representation the onus of proving the absence of reasonable grounds rested with Mr Keays.

39    In the written submissions, a further contention was advanced which was not pleaded. It was that Mr Keays had been misled by JPM into accepting a public side position when JPM always intended that the position would become a private side one.

Was there a breach of contract?

Anticipatory breach

40    It was alleged that providing Mr Keays with the deed of release to sign on 5 June 2008 was an anticipatory breach of contract. It was not. The contract was brought to an end on 5 June 2008 independently of the provision of the deed of release. There was no anticipatory breach. Whether there was an actual breach of any contractual term is a separate question.

Repudiation

41    It was alleged by the further amended statement of claim that JPM repudiated the contract of employment because it “manifested its unwillingness to perform” the contract and “wrongfully terminated” it. The two allegations raise different issues for consideration. If JPM, by its actions, repudiated the contract of employment Mr Keays would have a right to elect whether to keep the contract on foot or to terminate it. In either case he would have a right to sue for damages.

42    The only real basis for the suggestion of a repudiatory breach of contract by JPM was the removal from Mr Keays, upon the engagement of Mr Jani, of Mr Keays’ responsibility for management of foreign exchange sales. This was one area expressly mentioned in the job description. In my view, Mr Keays had a contractual right to remuneration based on those responsibilities and he clearly asserted it. When those functions were removed from him Mr Keays protested immediately and thereafter consistently. His efforts to reclaim the responsibilities were ongoing. Those efforts had not come to an end, or been exhausted, in the relatively short period before his employment was terminated. By his conduct he affirmed the contract of employment and retained the right to sue for damages arising from JPM’s repudiatory conduct.

43    However, there was no basis disclosed by the evidence upon which any conclusion would be available that Mr Keays was likely to lose any particular level of remuneration as a result of the alteration to his duties. His usual pay did not reduce. The time for the allocation of bonuses for 2008 had not yet arrived. As events transpired, his employment came to an end before any loss was suffered and it is not clear that any loss would necessarily have been suffered if his employment had continued. In the circumstances there is no case for relief for breach of contract arising from the circumstance that his earlier responsibility for management of foreign exchange sales was removed from him.

44    Next, attention is required to the actual circumstances in which the contract was terminated, which I set out earlier. Although the further amended statement of claim asserted that Mr Keays accepted JPM’s repudiation and vacated the offices of JPM after his employment was terminated this contention is an attempt to rewrite the factual position. Mr Keays’ employment was directly and expressly terminated by the letter to him on 5 June 2008. The cessation of Mr Keays’ employment, when it occurred, corresponded (at least in terms of procedure) with his proposed solution to the impasse which developed when he declined Mr Herbert-Smith’s invitation to take up a position on the private side. Mr Keays could not be forced to agree to that proposition. That was because he had a contract upon which he was entitled to rely, which sufficiently identified his position as a public side one. However, there was no repudiation of the contract constituted by Mr Herbert-Smith’s proposal that Mr Keays work on the private side. Mr Keays was not forced to do so. His contract was terminated instead.

45    If JPM had a right to terminate the contract, and acted in accordance with it, there could be no repudiation. It did have such a right under the express terms of the contract. The contract was terminated by JPM on 5 June 2008 by written notice to that effect. Termination of the contract by JPM in that way was legally effective. That was not repudiation as the law understands the term. Moreover, there was no other breach of contract involved unless JPM then, or later, refused to honour its obligations to make a relevant payment, or afford a relevant entitlement, as a result of the contract coming to an end.

46    The three principal matters which require consideration in that respect are: what payment should have been made by JPM in lieu of notice; whether Mr Keays had an entitlement to a further payment because Mr Keays’ position was stated by JPM to be redundant; and, whether Mr Keays had a right to avoid forfeiture of unvested stock entitlements and/or to payment of their value. In each case it is necessary to identify the source of any relevant contractual obligation which might be relied upon to support an argument that JPM breached Mr Keays’ contract of employment. That requires consideration of the express terms of the contract, terms alleged to be implied into it and terms alleged to have been incorporated in it.

Express terms

47    Various specific breaches of contract were alleged by Mr Keays. Some depend on attributing to representations, which he claims were made to him, the status of express contractual terms. This approach is misconceived. It ignores a fundamental requirement of the law of contract; namely, that the parties have mutually intended that their legal rights and obligations be governed by the alleged terms and have mutually agreed to enter into legal relations on that basis.

48    In the present case Mr Keays’ employment with JPM was the subject of a written offer which was countersigned by him by way of acceptance. It is, initially at least, by reference to the terms of that document that the express terms of the contract must be identified. Relevantly, so far as the allegations of breach of contract earlier set out are concerned, the contract expressly gave Mr Keays the title of Managing Director. It provided expressly for a sign-on payment of $500,000, reflecting the outcome of the negotiations for compensation to replace the foregone Deutsche bonus for 2005. It provided expressly for a bonus guarantee for 2006 of USD$450,000, also reflecting the outcome of the negotiations about the transition of Mr Keays’ employment from Deutsche to JPM. It stipulated Mr Keays’ normal base salary (which included a superannuation contribution) and allowed for annual discretionary bonus payments. Each of these matters (and all in combination) addressed in express contractual terms the basis upon which Mr Keays would become employed by JPM. Those express contractual terms, specifically negotiated and agreed, leave no room for any suggestion that by implication or prior representation Mr Keays could hope to look back to the position he was leaving at Deutsche as a foundation for any suggestion that JPM owed him a higher level of compensation during his employment with JPM. Nor could his remuneration at Deutsche be relevant, on the facts of the present case, to any entitlement on Mr Keays’ departure from JPM.

49    I am satisfied also that the job description, modified as I have discussed, became part of the express terms of the contract. The contract made on 14 December 2005 included the following provisions:

Other Terms & Conditions:

•    All agreements regarding employment, compensation and benefits must be documented and approved by Human Resources or a Director of JPMorgan.

    …

•    This document represents the total employment contract between you and JPMorgan and supersedes any verbal undertakings that may have been given to you regarding employment arrangements.

50    It is not necessary to enter upon a detailed discussion of the legal effect of “entire agreement” clauses. In each case the task is to construe the terms of the contract in question, having regard to all relevant matters. The second of the provisions set out above could not operate to prevent the job description given to Mr Keays being also incorporated into the contract of employment. The job description identified and gave content to the responsibilities of the position for which he was being engaged. The job description was modified before its incorporation into the contract of employment. It did not contain the misconceived description set out earlier suggesting the position was a wall straddling one or the accompanying orientation to the private side. Subject to those matters, however, the job description, as drafted and refined, was approved by Mr Taylor and therefore met the first requirement set out above.

51    It was not a term of the contract, as alleged in the further amended statement of claim, that the position with JPM was “an ongoing and long term role” if by that allegation it was meant that there was a fetter upon termination (by either party) in accordance with the express terms of the contract. Employment was, under the terms of the contract, terminable by either party by giving three months notice or by JPM on making payment in lieu of notice. JPM was entitled therefore, under the express terms of the contract, to terminate Mr Keays’ employment upon giving him three months payment in lieu of notice. JPM complied with that obligation.

52    The written contract made no reference to the possibility that Mr Keays’ employment might be terminated on account of the redundancy of his position. I shall deal with Mr Keays’ claims for an additional payment in this circumstance shortly.

53    The written contract did make explicit reference to the vesting arrangements for stock. It made no provision for the monetary payment for unvested stock. I shall also deal with this matter shortly.

Implied terms

54    Notwithstanding that the express terms of the contract permitted termination of Mr Keays’ employment by JPM, on payment in lieu of three months notice, Mr Keays argued that a term should be implied into his contract of employment requiring a higher payment.

55    It is usually accepted that the tests to be met for the implication of terms in a formal contract are those as stated in B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283:

… for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

(See also Secured Income Real Estate (Australia) Limited v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605 – 606; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347, 404; Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274 at 282; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422, 441; Moneywood v Salamon Nominees Pty Ltd (2001) 202 CLR 351 at 374.)

56    It was alleged in the further amended statement of claim that a term was implied by law in the contract of employment that Mr Keays would be given “reasonable notice of termination”. Based on that suggested implication a claim was made that Mr Keays should be awarded 12 months pay as damages for breach of the term. This claim cannot succeed.

57    In the present case there was an express term governing termination of employment. It was reciprocal in its operation. It matched the standard generally observed in the industry, of which Mr Keays’ own conduct when he left Deutsche was an example. The suggested implication fails every test and must be rejected. There was no breach of any implied term of contract by JPM when it terminated Mr Keays’ employment accompanied by three months’ pay in lieu of notice.

58    A further suggested implied term was alleged as follows:

29.    Further, and in the alternative, it was an implied term of the Agreement that should the applicant’s employment with JP Morgan be made redundant that JP Morgan would compensate the applicant for any loss relating to:

(d)    the position of significant seniority, which seniority was known to the market, that the applicant had attained at Deutsche;

(e)    the security of being a long term employee, which the applicant enjoyed at Deutsche; and

(f)    the entitlement, in the event that his employment should be made redundant, to significant payments such as the applicant would receive from Deutsche.

Particulars

The term is implied as a matter of fact.

59    There was no evidence to sustain the proposition that Mr Keays was entitled at Deutsche to particular entitlements concerning maintenance of seniority, security of tenure or redundancy entitlements. Much less was there any evidence that would support a proposition that a guarantee of the kind alleged by him was necessary to give his contract of employment with JPM business efficacy. Furthermore, as I have already indicated, the suggested implied term was contradicted by the express terms of the written contract, which left no room for the implication.

60    It follows that no case has been made out of breach of any implied term of contract.

Redundancy

61    Mr Keays claimed 12 months additional pay on account of redundancy. Any claim for an extra payment arising from the fact that Mr Keays’ position was stated by JPM to be redundant must have a legal foundation. So far as the foundation for a claim for severance pay on account of redundancy was suggested to be in Mr Keays’ contract of employment it would be necessary to identify a relevant term to be enforced, and its source. The written contract of employment made no provision for redundancy pay. No other contractual source was ever identified to support the initial claim for an extra 12 months pay on account of redundancy.

62    At one point a suggested term was identified in argument for Mr Keays to support an alternative claim for 12 weeks additional pay. That suggested term was said to arise from the first sentence in the following paragraph in the letter of offer to Mr Keays dated 14 December 2005, which was accepted by him on that day:

Other Terms & Conditions:

All employees are subject to JPMorgan’s Human Resources policies. Your manager will explain these to you and they are also available on accessHR, in JPMorgan’s intranet site.

63    The contention based on that sentence was that Mr Keays became entitled, at a minimum, to a payment in accordance with a policy or guideline which was in force during his employment, and at the time it was terminated, which provided for 12 weeks additional pay to a person of 2-3 years service whose position was made redundant. It may be recalled that Mr Keays was offered such a payment by the letter of termination of his employment, subject to him signing a deed of release. If the payment was obliged as a matter of contractual obligation he was entitled to the payment whether or not he signed a deed of release, and would be entitled in the present proceedings to an order to that effect. Resolution of the question would turn on whether a relevant policy or guideline, requiring such a payment to be made, became incorporated into the contract of employment, either by reason of the sentence set out earlier or for some other reason.

64    Generally speaking, unless the language of the sentence relied on was sufficient to provide contractual force to an identifiable element of a particular policy, it would be necessary to find, in some identified policy, language consistent with an objectively ascertained view that JPM’s policies, or a particular policy in particular respects, were intended by the parties to the contract (here Mr Keays and JPM) to have contractual significance and effect (see Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 per Black CJ at [19]-[23]). Ultimately, the argument advanced about this issue broke down at every level. First, there was no evidence that any policy or guideline about redundancy was provided to Mr Keays at the time he was engaged or that he was aware of such a policy or guideline at that time. Secondly, no relevant policy, which had been placed on the intranet, was identified. Thirdly, although this point was not reached, the fact that the letter of offer drew attention to the fact that JPM’s human resources policies might, from time to time at JPM’s discretion, be placed on a corporate “intranet” would not suffice without more to imbue those policies with contractual force.

65    In the circumstances, no contractual entitlement to an additional payment on account of redundancy was established. The offer of such a payment on 5 June 2008 must be treated as a voluntary one, accompanied by a condition which Mr Keays was not prepared to meet.

Stock entitlements

66    At the time of the termination of his employment $675,596.45 worth of stock entitlements, granted to Mr Keays as discussed hereunder, had not vested. When he refused to execute the deed of release the value of those stock entitlements was denied to him. Although there was no direct evidence about the terms upon which stock entitlements were made available to Mr Keays, the contract of employment provided for stock entitlements to be granted to him in three circumstances.

67    First, the letter of offer of 14 December 2005 referred to the award to him of “JP Morgan Chase Restricted Stock Units” to replace the Deutsche stock entitlements which he would forfeit when he joined JPM. Of the replacement JPM stock, the letter said:

Restricted stock units will vest on the vesting dates set forth in the award agreement, conditioned on your continued employment as of each vesting date and the terms and conditions set forth in the associated award agreement.

68    Secondly, the letter of offer recorded that Mr Keays’ guaranteed bonus for 2006 of USD$450,000 might also be satisfied in part by the award of JPM “Restricted Stock” and/or stock options. The letter of offer said, in connection with stock awarded for this reason:

Vesting of Restricted Stock is conditioned on your continued employment as of each vesting date, and the terms and conditions set forth in the associated award agreement.

69    The terms of the letter of offer clearly suggested that unvested stock in the first two categories would not vest after termination of employment. Some of the JPM stock, referable to replacing Deutsche stock, had vested before Mr Keays’ employment with JPM came to an end; some had not. None of the stock referable to the guaranteed bonus for 2006 had vested. The “associated award agreement” referred to in the two sentences in the letter of offer which I have extracted was not put into evidence by either party.

70    Thirdly, the letter of offer referred to a “discretionary Incentive Compensation Award scheme”. This was a reference to annual bonuses. As to this the letter of offer said:

Under current arrangements a proportion of any discretionary bonus may be awarded in the form of stock units, stock options or other long term incentive awards. The nature, proportion of total bonus and terms of these awards may change from time to time at the sole discretion of the firm.

71    Stock entitlements in the third category also remained unvested at the time of termination of Mr Keays’ employment. Counsel for Mr Keays submitted that, notwithstanding any discretionary element in the original allocation of such stock, once granted such stock represented an entitlement by way of bonus which could not be made subject to a further condition, such as the execution of a deed of release.

72    It is desirable to say something about two attempts made by JPM during the course of final submissions to address the significance of the lack of any direct evidence about the terms of the plan (or plans) under which stock entitlements were granted. Normally, the contents of a document should be proved in one of the ways contemplated by s 48 of the Evidence Act 1995 (Cth) (“Evidence Act”) – e.g. by tendering a copy of the document. Presumably, the decision by JPM not to put any plan concerning stock entitlements into evidence in this way was a tactical one, although the advantage to JPM’s case of such a decision is not clear to me. During the course of JPM’s final submissions it was argued that the terms of the proposed deed of release provided sufficient evidence about the legal operation of the plans. The proposed deed of release (in paragraph 2.3) made statements about the terms of such plans. Those statements were to the effect that, under the terms of the relevant long term incentive plan, Mr Keays would need to execute a deed of release in order for unvested stock entitlements to vest in him. Those statements were said to be admissible as evidence about the requirements of the plan in accordance with s 60 of the Evidence Act (evidence admitted for a non-hearsay purpose). Section 60 (1) and (2) provide:

60(1)    The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.

(2)    This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of subsection 62(2)).

73    In the circumstances of the present case it is not necessary to come to a final view about this argument or to consider whether the use of the deed of release in this way should, in fairness, be limited (s 136 of the Evidence Act) in light of the fact that the relevant plan could no doubt simply have been put into evidence by JPM at an appropriate time. After submissions in reply had been made for Mr Keays (i.e. final submissions had finished) counsel for JPM sought to re-open JPM’s evidentiary case to deal further with this issue. I rejected the application to re-open the evidence as I was satisfied that JPM had ample time to assemble its case.

74    Notwithstanding the matters to which I have referred, I am satisfied that the onus lay on Mr Keays to prove that he had an unsatisfied entitlement to the unvested stock. Mr Keays was not able to point to an entitlement to unvested stock in any of the three categories I earlier identified. As to the first two categories, the letter of offer made plain that vesting depended on continued employment. As a matter of entitlement arising from the terms of the contract of employment itself, therefore, a claim for the value of unvested stock in the first two categories cannot succeed. No other entitlement was identified. As to the third category (stock or stock options as part of annual bonuses), a schedule provided in the course of submissions (the elements of which were agreed between the parties) showed that stock in the third category (which was all awarded on 22 January 2008) was to vest in part on 25 July 2009, in part on 25 January 2010 and in part on 25 January 2011. It was accepted by counsel for Mr Keays that an award of stock in this form (with delayed vesting) operated as a “golden handcuff”. That concept is inconsistent with any notion that the stock would automatically vest on earlier termination, even in the event of redundancy. In order for this part of his claim to succeed (in respect of any of his stock entitlements) it was necessary for Mr Keays to show that he had an entitlement to the stock which survived the termination of his employment. He has not been able to identify any such entitlement.

75    There is no basis to conclude that JPM refused to honour any legal obligation with respect to the vesting or payment of any stock entitlements. Payment in respect of unvested stock was offered to Mr Keays but his refusal to sign a deed of release represented a failure to fulfil a stated condition for such payment.

Conclusion on contract claims

76    No repudiation or breach of contract has been established.

Sections 52 and 53B of the Trade Practices Act

77    Mr Keays also put a case based on s 52 and s 53B of the TP Act. Section 52 of the TP Act provides (relevantly):

52 (1)    A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

78    Section 53B of the TP Act provides:

53B    A corporation shall not, in relation to employment that is to be, or may be, offered by the corporation or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of, or any other matter relating to, the employment.

79    As I earlier indicated, s 51A of the TP Act operates in some circumstances to impose a practical onus on a corporation to adduce some evidence that there were reasonable grounds for making a representation, or face a statutory presumption (in the absence of any such evidence) that reasonable grounds for making the representation did not exist and the representation was, accordingly, misleading. Section 51A affects both s 52 and s 53B. In the present case JPM did adduce evidence sufficient to displace the statutory presumption. Accordingly, insofar as the representations about which Mr Keays complained were ones about future matters the onus remained with him to show that there were no reasonable grounds, at the time, for making them.

80    The conduct which Mr Keays asserted was in breach of s 52 and s 53B of the TP Act consisted of the alleged representations which I set out earlier. In the further amended statement of claim those alleged representations were repeated and relied upon in various ways but, at least in the pleaded case, they reflected the following basic premises: Mr Keays was being offered a promotion; he would suffer no financial loss as a result of accepting the JPM role; his position would be ongoing (i.e. permanent until he chose to retire) and; his role and responsibilities would (except with his agreement) remain as set out in the job description (i.e. on the public side with full responsibility for the management of foreign exchange sales business).

81    In the written submissions, Mr Keays’ contentions expanded to include a further proposition. In those submissions, Mr Keays argued that JPM had always intended that his role would be (or become) a private side one. Mr Keays’ argument was that, despite the terms of the job description provided to him in November 2005, which were discussed with him before he accepted employment with JPM on 14 December 2005, JPM and its officers, Mr Priestley and Mr Taylor, always had it in mind that his position would be transferred to the private side and kept that information from him. Mr Keays’ evidence was that he would not have accepted a job on the private side and therefore, so the argument went, he gave up the guarantee of secure continuing employment with Deutsche only to find himself confronted after a short time with a requirement to move to the private side, which requirement gave effect to JPM’s original undisclosed intent.

82    In my view, the fundamental elements of this argument should not be accepted. Mr Taylor, it is true, had originally constructed a job description which referred to the position as a private side position but that idea was abandoned before any document was shown to Mr Keays. Mr Taylor worked entirely on the public side and it seems likely he did not initially appreciate the complexities his original proposal would involve. The substitute idea, that the position be a wall straddler, was also misconceived, as Mr Keays correctly appreciated. That idea was abandoned (to Mr Keays’ knowledge) before Mr Keays accepted the position. As Mr Keays also correctly appreciated, what was left operative in the job description implied a public side position leaving open the possibility of wall-crossing as required. That was how he operated without any evidence of resistance or demur from JPM until Mr Herbert-Smith’s engagement.

83    I am satisfied that Mr Herbert-Smith brought new ideas into play. In particular, he favoured a different approach to that which Mr Keays was then employing. Mr Herbert-Smith wanted a private side “model”; Mr Keays did not. Mr Herbert-Smith tried to persuade Mr Keays to change his view and co-operate in an endeavour for which, they both agreed, Mr Keays had the skills and capacity. Mr Herbert-Smith thought Mr Keays’ personal earning capacity would not suffer but Mr Keays was not persuaded. Eventually, they agreed that Mr Keays’ way of doing things, and his “public side” position, were redundant to JPM’s current wishes. None of that history or those developments signify that Mr Keays was misled, or was liable to be misled, by any conduct of JPM or its officers in late 2005. I am satisfied that Mr Herbert-Smith’s plans represented an evolution in thinking and in direction. The implications for Mr Keays’ position were ones that emerged well after he was engaged. He was not obliged to agree to the proposed changes. He had a contract for a public side position. That contract, however, was terminable on 3 months notice or pay in lieu. That was what he had agreed to. Whether or not Mr Herbert-Smith appreciated the complexities of the legal position, he seemed to understand that Mr Keays could not be forced to the private side against his wishes. He gave him time. He tried to persuade him. His failure to do so does not mean that Mr Keays may claim that his position was immunised from any possibility of change or that he could insist on compensation for changed circumstances.

84    No case has been made out that JPM engaged in misleading conduct in connection with its offer of employment to Mr Keays so far as it concerned the nature of Mr Keays’ position – i.e. public side rather than private side.

85    The other allegations of misleading conduct may be dealt with more briefly. Mr Keays was promised and given a position at managing director level. That was what he required as a condition of engagement. It is not to the point to debate whether the position represented a “promotion”, although it certainly, as Mr Keays desired, represented an elevation in his relative status in the industry. “Promotion” is a concept normally reserved to describe movement within the same organisation. More to the point, the position was offered and accepted on the basis of freely negotiated, mutually acceptable, terms and conditions. Those terms and conditions included arrangements which effectively replaced benefits which Mr Keays would lose when he left Deutsche. In the circumstances of the present case, where the arrangements with JPM were freely negotiated and mutually understood and agreed, it would not have mattered if some loss had been involved. Mr Keays was under no obligation to accept the position at JPM. When he did so it was on the terms which he had negotiated. The agreed terms included specific terms dealing with the possibility that his employment might come to an end. He was not asked to, and did not, bind himself indefinitely to JPM any more than JPM was asked, and agreed, to accept his services indefinitely.

86    The other way in which Mr Keays claims he was misled was from the comment he attributed to Mr Parks in the evidence I set out earlier. The comment made by Mr Parks, accepting it at face value, cannot bear the weight which Mr Keays wishes to attribute to it. It cannot be viewed as a promise of permanent employment. It was no doubt a well-intentioned statement, intended to reflect Mr Park’s recognition of Mr Keays’ preparedness to leave Deutsche for JPM, but it cannot be regarded as a substitute for, or a free-standing addition to, the terms which had been negotiated and committed to writing. Mr Keays was promised employment on the terms negotiated. That is what he was afforded. The whole of JPM’s conduct must be taken into account in assessing whether either s 52 or s 53B of the TP Act was infringed (see Butcher v Lachlan Elder Realty Pty Limited (2004) 218 CLR 592 at [39], [109]; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [102]). The circumstances which must be (objectively) examined to assess whether JPM’s conduct did infringe either s 52 or s 53B include the following: there were direct negotiations about the terms on which Mr Keays would leave Deutsche and move to JPM; those negotiations dealt expressly with the levels of immediate and ongoing reward for Mr Keays’ services; the terms negotiated, and other terms, were reduced to writing and presented to Mr Keays formally; those terms were countersigned by Mr Keays by way of acceptance; and the terms thus concluded dealt expressly with rights (and obligations) in relation to termination of Mr Keays’ employment, including JPM’s (and Mr Keays’) right to terminate it. The arrangements concerning termination were reciprocal in nature. That is usual. There can be no doubt that Mr Keays would have felt free to leave JPM’s service (on pain of three months gardening leave) if it suited his purposes to do so, as he had left Deutsche.

87    Mr Keays’ own conduct in relation to the negotiations and conclusion of the contractual terms is not a neutral circumstance. As the High Court pointed out in Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 (at [45]):

45    It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.

88    Mr Keays’ engagement by JPM, on the terms negotiated, depended on his acceptance of the terms set out in the offer to him on 14 December 2005. He accepted those terms. He was under no constraint and no disability when he did so.

89    Taking all those matters into account, JPM’s conduct was not misleading. Mr Parks’ comment provides no basis for relief. There is no other basis for relief under s 52 or s 53B of the TP Act.

Damages

90    It is not possible to deal in any useful way with the various postulates about the calculation of damages, or their potential mitigation, in circumstances where the premises upon which the calculations depend have not been accepted. The attempt to do so would be unduly speculative. It would be impossible to settle upon a satisfactory scenario (necessarily accepting some, even if not all, matters rejected on the evidence) upon which any such hypothetical calculation could proceed.

Conclusion

91    No case for relief has been established. The application must be dismissed. The respondent has sought an opportunity to make further submissions about costs. I will make directions with respect to that issue.

Associate:

Dated:    13 April 2011