" In my view, when the fundamental requirement for granting rectification is a continuing common intention of the parties, it is of more assistance to concentrate on what is needed before an intention of the parties to a negotiation counts as a common intention. In my view, when that intention relates to the terms upon which they will contract with each other, it is still necessary for them to know enough of each other's intentions for it to be said that there is a common intention. They might come to know of each other's intentions in this way through those intentions being directly stated, or they might come to know of them through the various other means by which one person's intention can become known to another person. Those means can sometimes involve a process of conscious and deliberate inference. Those means can sometimes involve simply perceiving a gestalt in a series of events. Those means can depend to some extent on the people involved sharing a common understanding of how particular bodies of knowledge or markets or social institutions they are operating in work - the experienced surgeon, or the experienced chess player, can sometimes see what another surgeon, or chess player, is seeking to do, in a way that an inexperienced person cannot. What matters for present purposes is that for a negotiating party to perform actions or say words from which the other party can gather his or her intention is itself a form of communication. Negotiation of any contract takes place in a context in which various facts are known or assumed by the negotiating parties. Sometimes, for example, if a contract is negotiated in a context where there are well understood business practices and conventions, and nothing is said about those practices and conventions not applying, it can be legitimate to conclude that both parties to the contract intended to act in accordance with those practices and conventions, even if they did not expressly communicate to each other that they intended to act in accordance with those practices and conventions. This view of what is needed before an intention is a common intention, accords, it seems to me, with the Australian case law since Joscelyne ."
70 The difficulty for Architectus in this case is that it has not established a common intention not to have clause 12.2(b) included in Mr Hennessy's contract of employment with Architectus. There are several reasons for this.
71 First, there was no common intention that the contract would not last for at least two years. Indeed my finding that Mr Hennessy thought that his employment with Architectus would be for the longer term was at least consistent with a two year term being incorporated into the written form of the agreement.
72 Second, another way that Architectus sought to show that there was a common intention not to include clause 12.2(b) in the contract of employment is to assert that Mr Hennessy (and Architectus) had a belief that was inconsistent with clause 12.2(b) remaining in the agreement, namely a belief that his employment contract could just be terminated on reasonable notice. But my findings above show that this case fails. Mr Hennessy had no such belief.
73 Third, as Campbell JA explained at [281] when the common intention being asserted relates to the terms upon which the parties will contract with each other "it is still necessary for them to know enough of each others intentions for it to be said there was a common intention". The only way that the parties communicated their final intentions in this case was by means of the provision of the Employment Deed. It turns out that neither side read this document closely, despite the detail of its terms and its importance. In my view all that can be inferred from the parties' conduct in this case is that they intended to be bound by the many unread terms of this document, whatever they might be. They contained clause 12.2(b) along with many other unread terms. No common intention not to include that term in the contract of employment is established.
Quantum Issues
74 Mr Hennessy is entitled to the benefits conferred on him by clause 12.2(b). In my view he is entitled two years salary from 2 September 2008 less any other earnings, he has received during that two years and consequent upon his early termination. There were three quantum issues: what was the base salary for calculating his losses; should certain Centrelink payments be deducted from the losses claimed; and, should the Court take into account in the assessment of damages events after a District Court hearing in February this year.
75 On the first of these issues, Mr Hennessy did agree to reduce his annual salary from $155,000 to $139,000. There is no evidence as to how long this reduction would have lasted had Mr Hennessy remained with Architectus. In my view, as it was a "temporary" measure it would be reasonable to assume that it would have lasted six months from the date that he was first paid at this lower rate. Thereafter it should be assumed that he would have been paid at the original contracted higher rate of $155,000. The parties should undertake their calculations on this basis.
76 The second issue is crediting Centrelink payments. Mr Giles has appropriately conceded there is no evidence that these are actually employment related benefits. In those circumstances they should not be deducted from the damages.
77 Mr Berwick also argued that the Court should not deduct Mr Hennessy's earnings from his present job from the calculation of loss. This was put on the basis that if the matter had been tried in the District Court in February this year, when it was originally listed, that Mr Hennessy would not have had to deduct those earnings. In my view, the assessment takes place at trial in light of the actual events that have occurred, including his current employment. This argument fails and these earnings should also be deducted.
Conclusions and Orders
78 I have found that clause 12.2(b) of the Employment Deed is part of Mr Hennessy's employment contract with Architectus and that he is entitled to recover his losses as a result of his early termination by Architectus. The parties should undertake a calculation of these losses in accordance with these reasons. I will then hear argument, if any, about interest or costs.