Network Ten Pty Ltd v Rowe [2005] NSWSC 1356

New South Wales Supreme Court

CITATION : Network Ten Pty Ltd v Rowe [2005] NSWSC 1356

HEARING DATE(S) : 28 December 2005

JUDGMENT DATE : 30 December 2005

JUDGMENT OF : Simpson J

DECISION : (i) the summons is dismissed; (ii) the plaintiff is to pay the defendant's costs of the proceedings.

CATCHWORDS : contract of employment - date of expiration of employment contract - whether contract contains entire agreement - requirements for termination of contract - whether oral term limiting contract period to two years - conditions necessary for implied term of contract - whether plaintiff waived rights under contract and therefore ought to be estopped from asserting them - whether notice of termination of contract given - whether injunctive relief available

BP Refinery (Westernport) Pty Ltd v President, Councillors and Rate Payers of the Shire of Hastings (1977) 180 CLR 266 CASES CITED : Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337

Network Ten Pty Ltd - Plaintiff PARTIES : Jessica Rowe - Defendant

FILE NUMBER(S) : SC 50187/05

DP Robinson SC, with SR Meehan - Plaintiff COUNSEL : R Goot SC, with P Braham - Defendant

Blake Dawson Waldron - Plaintiff SOLICITORS : Harmers Workplace Lawyers - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

SIMPSON J

Friday 30 December 2005

50187/05 Network Ten Pty Ltd v Jessica Rowe JUDGMENT 1 HER HONOUR: In these proceedings the plaintiff, Network Ten Pty Ltd, claims injunctive, declaratory and other relief in relation to a contract of employment between it and the defendant. The proceedings were brought on, in Court vacation, as a matter of urgency, and requiring expeditious determination. If these reasons are less comprehensive, or less carefully expressed, than they otherwise would have been, that is the explanation. I am, however, confident that the luxury of additional time would not have affected the outcome. 2 The relevant facts and circumstances are scarcely in dispute. To the extent that there was any factual dispute, it was within an extremely narrow range, limited to two matters of conversation, neither of them of great moment. Background 3 The plaintiff owns and operates a television station, known as Channel Ten. The defendant is currently engaged, by contract, as a news presenter on the station. She has been so engaged, pursuant to a series of six contracts, since 1995. The contract under which she is currently engaged is contained in a letter written on the letterhead of the plaintiff and dated 10 December 2003, and accepted by the defendant, by her affixing her signature, on 12 December 2003. It is the proper construction of this contract that is at issue. The dispute between the parties involves one simply stated question: what is the expiration date of the contract? In my opinion, the answer is equally simple, derived from the terms of the contract itself, and favours the defendant. However, in order to do justice to the arguments of the parties, it will be necessary to say something about the history of their relationship. 4 All contracts between the parties follow a similar form. Each is contained in a letter written on behalf of the plaintiff to the defendant, addressing her by her first name, and opens with words to the following effect: "This letter confirms the (new) terms and conditions under which you have agreed to be employed by Network TEN ('TEN') as News Presenter ..." 5 There follows a series of provisions setting out the terms and conditions of the defendant's employment, including, in each document, the specification of the remuneration to be paid to the defendant. The first of these letters is dated 20 November 1995; the second 8 December 1997; the third 19 January 1999; the fourth 16 December 1999; the fifth 24 December 2001; and the final, and current, letter, 10 December 2003. There was never any issue that each letter constituted a contract between the parties. Each contains a provision to the effect that any prior agreement between the parties for the provision of the defendant's services is terminated upon the defendant's signing the letter, and is replaced by the terms of the new agreement. I can take the relevant provisions from the last mentioned document. It opens with the words: "I am pleased to confirm the new terms and conditions of your employment, commencing 1 January 2004, with Network Ten Pty Limited ..." 6 Thereafter the following provisions are of present relevance: "3. Entire Agreement This letter sets out the whole of the terms that relate to your entitlements arising from your employment by TEN. You will not be entitled to any other benefits whatsoever, financial or otherwise, during your employment by TEN or upon or following its termination, other than as set out in this letter. 4. Remuneration and Associated Arrangements (a) For the period from 1 January 2004 to 31 December 2004, you are entitled to receive total remuneration to the value of [$x] per annum before tax. (b) For the period from 1 January 2005 to 31 December 2005, you are entitled to receive total remuneration to the value of [$x + y] per annum before tax. ... 9. Termination (a) Your employment may be terminated by the giving of 26 weeks notice in writing by either party or, in the case of termination by TEN, by payment of an amount equivalent to 26 weeks salary in lieu of notice. ... 11. Unique Services You acknowledge that the services you provide are of a special, unique and extraordinary character; and have a peculiar value, for the loss of which we could not be reasonably or adequately compensated in damages, and that a breach by you of the provisions hereof would cause TEN irreparable injury and damage. Accordingly you agree that TEN shall be entitled to seek such relief including injunctive relief to prevent any such breach."