Network Ten Pty Ltd v Rowe [2006] NSWCA 1

Reported Decision : 149 IR 280

New South Wales Court of Appeal

CITATION: Network Ten Pty Ltd v Rowe [2006] NSWCA 1 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 January 2006

JUDGMENT DATE: 10 January 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 21; Hunt AJA at 22

EX TEMPORE JUDGMENT DATE: 01/10/2006

DECISION: Appeal dismissed with costs, including the costs of the interlocutory application in this Court.

CATCHWORDS: Employment contract - whether for closed period or open-ended but terminable by notice - construction of particular document in light of earlier documents.

PARTIES: Network Ten Pty Ltd - Appellant Jessica Rowe - Respondent

FILE NUMBER(S): CA 40001/06

COUNSEL: D P Robinson SC & A Scotting - Appellant R Goot SC & T Donaghey - Respondent

SOLICITORS: Blake Dawson Waldron - Appellant Harmers - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 50187/05

LOWER COURT JUDICIAL OFFICER: Simpson J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40001/06 SC 50187/05

GILES JA SANTOW JA HUNT AJA

Tuesday 10 January 2006 NETWORK TEN PTY LTD v ROWE Judgment 1 GILES JA: Ms Jessica Rowe had been employed by Channel 10 as a news presenter since 1995 under a series of six contracts. The most recent contract was in a letter from Channel 10 dated 10 December 2003. In December 2005 Ms Rowe took employment with Channel 9, a rival television station, to commence on 1 January 2006. Channel 10 contended that she was not free to do so because her 2003 contract with it continued until terminated by the giving of six months written notice, which had not been given. Ms Rowe contended that the contract was for a period expiring on 31 December 2005 unless terminated prior to that date by the giving of the six months written notice. 2 This principal issue between the parties was decided by Simpson J adversely to Channel 10. In my opinion, this appeal from her Honour's dismissal of Channel 10's summons should itself be dismissed. It is not necessary to consider the availability of injunctive relief if Channel 10's contention had been upheld. My reasons are as follows. 3 The contracts preceding the 2003 contract were all in letter form. The first, in a letter dated 20 November 1995, began, "This letter confirms the terms and conditions under which you have agreed to be employed … ". The subsequent contracts began, "This letter sets out the new terms and conditions under which you have agreed to be employed … " or "I am pleased to confirm the new terms and conditions of your employment … ". The 2003 contract began in the last-mentioned manner. 4 The first contract was expressed to commence at a "date to be advised" and to be "continuous subject to the termination provision provided herein". It stated salary and benefits from its "effective date" for year 1 and for year 2, followed by - " Review TEN shall have an option to review the remuneration and benefits of this agreement for a further period of one (1) year on terms to be mutually agreed upon. Either party to inform the other of its intention six months prior to the end of year two salary and benefits." 5 The later contracts all provided for commencement of the employment on a stated date, but did not have the reference to continuity or the option to review remuneration and benefits for a further year. 6 A letter of 8 December 1997 provided for commencement on 1 January 1998, and stated remuneration for 1998 and for 1999. A letter of 19 January 1999 provided for commencement on 1 January 1999 until 31 December 1999; it nonetheless stated remuneration "per annum". It was the only contract to express an end date for the employment, and was effectively a replacement for 1999 in the 1997 contract. It referred to annual review, but did not provide for review, during 1999 or at all. A letter of 16 December 1999 provided for commencement on 1 January 2000, and stated remuneration for 2000 and for 2001; it included that following the increase on 1 January 2001 salary "will be reviewed annually and as a result of this review the total remuneration may be subject to adjustment by TEN at TEN's absolute discretion." 7 The immediate predecessor to the 2003 contract was in a letter dated 24 December 2001. It provided for commencement on 1 January 2002, and stated remuneration for 2002 and for 2003. It included as cl 4(f) - "(f) Following the increase on 1 January 2002, your salary will be reviewed annually and as a result of this review the total remuneration may be subject to adjustment by TEN at TEN's absolute discretion, but will be no less than the amounts referred to in 4(a) for each of the periods mentioned in 4(a)." 8 In each of these letters, including the first, it was said that any prior agreement between the parties for the provision of Ms Rowe's services was terminated on her signature of the letter and replaced by its terms. Each provided, with some variation in language, for termination by the giving of six months notice in writing by either party or, in the case of termination by Channel 10, by payment of six month's salary in lieu of notice, or for termination summarily by Channel 10 for misconduct. Each also provided, again with some variation in language, that it set out the whole of the terms relating to Ms Rowe's entitlements arising from her employment by Channel 10 and that she would "not be entitled to any other benefits whatsoever, financial or otherwise, during [her] employment by TEN or upon or following its termination, other than as set out in this letter". 9 The 2003 contract followed the same format. The letter provided for commencement on 1 January 2004, and stated remuneration for 2004 and for 2005. It did not have a provision equivalent to cl 4(f) set out above, nor did it otherwise provide for review. Its provisions particularly relevant to the issue between the parties were - " 2. Previous Agreement and Release Any prior agreement between us for the provision of your services is terminated upon your signing this letter and replaced by the terms of this agreement. Salary owing for work already performed and continuity of service are unaffected by this clause. 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.