Cutler v Derwent Howard Media Pty Ltd, in the matter of Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) (No 2) [2011] FCA 939

FEDERAL COURT OF AUSTRALIA

Cutler v Derwent Howard Media Pty Ltd, in the matter of Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) (No 2) [2011] FCA 939 Citation: Cutler v Derwent Howard Media Pty Ltd, in the matter of Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) (No 2) [2011] FCA 939

Parties: NICHOLAS CUTLER v DERWENT HOWARD MEDIA PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 129 920 458, NICHOLAS CRAIG MALANOS and CHRISTOPHER DAMIEN DARIN

File number(s): NSD 830 of 2010

Judge: JAGOT J

Date of judgment: 19 August 2011

Corrigendum: 7 October 2011

Catchwords: CONTRACT – whether employer entitled to summarily terminate employee's contract of employment – whether employee engaged in "serious misconduct" – whether employee in breach of contractual obligation to avoid conflicts of interest and/or contractual restraint of trade – whether contractual restraint of trade should be read down or was invalid – whether employee in breach of implied duty of good faith and fidelity – whether employer entitled to rely on conduct of employee not known at time of termination – employee's readiness and willingness to perform contract of employment – whether employer entitled to rely on employee's breach of contract if itself in breach of implied duty of trust and confidence – employee's entitlement on termination to payments for annual leave, long service leave and amounts claimed EVIDENCE – onus of proof – which party bore onus of proving facts said to justify termination of employee's employment

Legislation: Corporations Act 2001 (Cth) ss 436A, 444A, 588G, 1308A, 1321 Long Service Leave Act 1955 (NSW) s 4 Restraints of Trade Act 1976 (NSW) s 4