Qantas Airways Ltd v Rohrlach

Background

1. Before turning to the reasoning of the primary judge and consideration of the sole proposed ground of appeal, it is necessary to set out the background to the dispute in a little more detail as well as the contractual documents with which it is concerned.

The Employment Agreement

1. On 17 December 2015, Mr Rohrlach accepted an offer of employment from Qantas in the position of "Executive Manager Strategy and Customer - Jetstar" (the Employment Agreement).
2. Clause 1 of the Employment Agreement provided that: "1.1 Position (a) The Company appoints the Employee as an employee of the Company and the Employee accepts that appointment. (b) The Employee's initial appointment is to the Position. (c) If there is a business need to do so, the Company may transfer the Employee to a position with any member of the Qantas Group or to another position within the Company, provided it has first consulted with the Employee about the change. (d) If the Position changes for any reason, including as a result of a promotion or transfer, then the terms of this agreement (including clause 10) will continue to apply unless expressly varied by the parties in writing. 1.2 Appointment (a) The Company employs the Employee on the terms set out in this agreement. … 1.3 Term The appointment of the Employee on the terms of this agreement begins on the Effective Date, and continues until the employment is terminated in accordance with this agreement."
3. Clause 1.6 of the Employment Agreement provided that his position would initially be based in Singapore but that, following consultation, Mr Rohrlach may be required to relocate, temporarily or permanently, to other locations.
4. The Employment Agreement provided that Mr Rohrlach could terminate his employment with a notice period of three months: cl 10.3.
5. Clause 11 of the Employment Agreement relevantly provided that: "11 CONFIDENTIAL INFORMATION 11.1 Prohibition on use and disclosure of Confidential Information The Employee must: (a) only use Confidential Information in the proper performance of the Employee's duties; (b) keep any Confidential Information secret and confidential, except to the extent that the Employee is required by law to disclose it, or authorised to disclose it under clause 11.1(d); (c) take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information; and (d) not disclose Confidential Information to any third party without first obtaining the written consent of the Chief Executive Officer, except in the ordinary and proper course of employment with the Company. … 11.3 Obligations on termination (a) On termination of the Employee's employment or at any time on request by the Chief Executive Officer or the Employee's manager, the Employee must: (i) return to the Company all original Confidential Information; (ii) provide to the Company all copies, extracts and notes of or recordings of the Confidential Information (or any part of the Confidential Information) in any format or media; or (iii) if directed by the Company, destroy the material referred to in paragraph (i) and/or (ii) of this clause 11.3(a), and certify to the Company that the Employee has complied with these obligations, as appropriate. (b) The Employee's obligations under clause 11 continue to apply after the termination of the Employee's employment with the Qantas Group."
6. Clause 13.2 of the Employment Agreement provided that for a period of six month after termination or, alternatively, three months if the period of six months was held to be "invalid at law", Mr Rohrlach was not to be "engaged, concerned or interested in any business or activity in competition with the Qantas Group, in any capacity similar to the role or roles held by the Employee during the 12 month period prior to the Employee's last date of active service with the company."
7. Clause 16.1 of the Employment Agreement provided that: "This agreement is governed by the law in force in Singapore. The parties agree to submit to the exclusive jurisdiction of the Courts of Singapore."
8. Clause 16.4 of the Employment Agreement, entitled "Entire agreement" provided that: "This agreement (including any schedules) constitutes the entire agreement between the Company and the Employee in relation to its subject matter, except to the extent that a subsequent written agreement between the parties expressly provides that it overrides or varies either part or all of this agreement".

Assignment to Japan

1. As contemplated by the Employment Agreement, in November 2017, Mr Rohrlach was relocated to Japan. In correspondence between the parties at the time, this was referred to as an overseas assignment (the Assignment). This involved him assuming the position, effective as at 1 September 2017, of Executive Director.
2. The terms and conditions governing the Assignment were contained in a letter dated 6 September 2017 and countersigned by Mr Rohrlach on 8 November 2017 (the Assignment Letter). The Assignment Letter commenced as follows: "We are pleased to offer you an overseas assignment … in the position identified in Item 1 of Annexure 2 to this Assignment Letter, based in the location identified in Item 2 of Annexure 2 to this Assignment Letter … on the terms and conditions outlined in this Assignment Letter and the post employment obligations in the attached Deed Poll in Annexure 4 (which you must also sign). We will assist you to relocate from your current location as identified in Item 3 of Annexure 2 to this Assignment Letter ('Home Location') to the Host Location. The terms of the Relocation Benefits that are offered in conjunction with the Assignment to facilitate your relocation to the Host Location (and your return to the Home Location at the end of the Assignment) are outlined in Annexure 1 to this Assignment Letter."
3. It is sufficient for present purposes to note that cl 3.5 of Annexure 1 to the Assignment Letter provided for repatriation from the host location to the home location. The home location was Singapore and the host location was Japan.
4. In countersigning the letter, Mr Rohrlach acknowledged that he had: "read, understood and accept[ed] the terms and conditions outlined in [the] Assignment Letter (including the Deed Poll in Annexure 4), including the tax implications that may arise as a result of [his] Assignment under [the] Assignment Letter".
5. As will be seen, the Deed Poll (which comprised Annexure 4 to the Assignment Letter) referred to in the opening section of the Assignment Letter and in Mr Rohrlach's acknowledgement, was of central significance to the parties' dispute.
6. A number of terms and conditions of the Assignment Letter should be noted.
7. Clause 1 of the Assignment Letter provided: "1. RELATIONSHIP WITH EXISTING EMPLOYMENT CONTRACT During the period of the Assignment, you will continue to be employed by us, on the terms and conditions of your existing Home Location employment contract as amended from time to time ("Employment Contract"), and as varied by this Assignment Letter. In the event of any inconsistency between the terms of your Employment Contract and the terms of this Assignment Letter, the terms of this Assignment Letter will prevail to the extent of such inconsistency."
8. Clause 5 provided: "5. TERM Subject to any earlier termination in accordance with clause 14 or this clause, the Assignment will end on the date set out in Item 5 of Annexure 2 to this Assignment Letter, unless we mutually agree to extend. The Assignment can only be extended up to a total period of 5 years. If either of us wishes the Assignment to continue beyond 5 years, it is likely that you will be required to permanently transfer to local employment arrangements. You should also understand that, due to our future requirements or developments beyond our control, we may need to end the Assignment early. If we need to end the Assignment early, we will provide you with at least 4 weeks' notice unless otherwise agreed."
9. Clause 14 relevantly provided: "14. TERMINATION OF THE ASSIGNMENT …. If, prior to the completion of the Assignment, you terminate your employment or your employment is terminated by [Qantas] for misconduct: ● You will be immediately repatriated to your Home Location (pursuant to paragraph 3.5 of Annexure 1); ● You will not receive any further benefits in accordance with Annexure 1 or Annexure 2; and If your employment terminates, you will be subject to any post employment obligations under your Home Location contract of employment and the Deed Poll in Annexure 4 (unless we agree otherwise). In these circumstances, the post employment restraints in each document will operate independently of one another and are not intended to limit the operation of the other."
10. Clause 18 provided: "18. VARIATION AND ENTIRE AGREEMENT This Assignment Letter may only be varied or replaced by agreement in writing signed by you and an authorised representative on our behalf. This Assignment Letter, read in conjunction with your Employment Contract, embodies the entire understanding and agreement between you and us as to the terms of the Assignment. All previous negotiations, understandings, representations, warranties, or commitments in relation to the Assignment are superseded by this Assignment Letter."
11. Clause 19 provided: "19. APPLICABLE LAWS Except for the Deed Poll in Annexure 4 which will be governed by the laws in the Host Location, this Assignment Letter will be governed by the laws of the place nominated in the Applicable Laws clause contained in your Employment Contract. In the event that disputes arise in respect of this Assignment Letter, these laws will take precedence over the laws of any other jurisdiction."

The Deed Poll

1. It is convenient to set out the entirety of the Deed Poll in an Appendix to these reasons, as did the primary judge. Key features and terms of the Deed Poll should, however, be expressly noted.
2. First, cl 2 of the Deed Poll provided that: "The obligations set out in this Deed Poll are in addition to the post employment restraints set out in [the] Employment Contract, which continue to apply. The restraints in this Deed Poll and [the] Employment Contract operate independently of one another and are not intended to limit the operation of the other."
3. Second, cl 3 of the Deed Poll was a non-solicitation clause. Relevantly for present purposes, it would operate for a period of 12 months after Mr Rohrlach's employment ended.
4. Third, cl 4 of the Deed Poll provided that: "4 Post employment restraint Except with prior written consent of the Chief Executive Officer of the business unit you were working in, you must not, for a period of six months after your employment ends, be directly or indirectly engaged, concerned or interested in, or provide services (as an employee or contractor) to, any business or activity in competition with the Qantas Group: (a) in any capacity similar to the role or roles held by you at any time during the 12 month period immediately prior to the end of your employment; or (b) in any capacity or role in which you may be able to make use of the Confidential Information to the detriment of any member of the Qantas Group." (emphasis in original)
5. Fourth, cl 5(b) of the Deed Poll, in recording that "[y]ou have agreed to the restraints in this Deed Poll in consideration of Qantas' agreement to offer you the Assignment (including the entitlements to the benefits and entitlements set out in the Assignment Letter)", meant, as a matter of law, that the Deed Poll even in its unexecuted state (for it was never signed by Mr Rohrlach) had legal effect as a collateral contract. It was no doubt for this reason that the primary judge recorded that Mr Rohrlach accepted that he was bound by its terms (PJ [16]) and that it had "independent binding effect in its own right": PJ [50]. Alternatively, as Mr Rohrlach, by countersigning the Assignment Letter, had agreed to sign the Deed Poll he was probably bound in equity by its terms notwithstanding that it had not been executed: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) at [3-170].
6. Fifth, it should be noted that cl 6(a) of the Deed Poll employed, as is conventional in employment contracts containing restraints of trade, a drafting technique directed towards facilitating contractual severance in the event that one or more of the restraints was declared unenforceable. It provided that: "… If a court of competent jurisdiction finally decides that any such restraint is unenforceable in whole or in part, the enforceability of the remainder of that restraint provision and any other restraint will not be affected."
7. Sixth, unlike the Employment Agreement, the Deed Poll contained no jurisdiction clause, exclusive or otherwise. The Deed Poll did, however, provide in cl 6(c) that "[t]he terms of this Deed Poll will be governed by the laws of Japan." Japan was of course the location to which Mr Rohrlach had been assigned in 2017 from his original location in Singapore.

Events leading to litigation

1. Against this background, it is convenient to adopt the primary judge's narrative of the genesis of the parties' dispute which has led to this litigation.
2. The starting point is that, on 18 December 2020, intending to join Virgin (one of Qantas' major competitors), Mr Rohrlach gave written notice of his resignation to Qantas. He was placed on "gardening leave" until 17 March 2021, when his employment formally came to an end. This corresponded with the three month notice period required by cl 10.3 of the Employment Agreement: see [15] above.
3. On 15 January 2021 Qantas wrote to Mr Rohrlach and Virgin, expressing concern about Mr Rohrlach's proposed commencement with Virgin. In particular it was put that, in the course of being interviewed for and following his acceptance of the Qantas Loyalty position in November and early December 2020, Mr Rohrlach had been privy to highly confidential information that was strategically and competitively sensitive and significant. Qantas demanded that, in accordance with the restraints contained in the Employment Agreement and the Deed Poll, Mr Rohrlach not commence with Virgin until 18 September 2021.
4. At that time, Qantas was relying both on the restraints in the Employment Agreement itself and on those in the Deed Poll. I interpolate that it is plain and not in issue that any dispute relating to the enforceability of the restraints contained in the Employment Agreement would fall within the scope of the Singapore exclusive jurisdiction clause (cl 16.1) contained in that Agreement. This, it may safely be inferred, is at least one of the reasons why Qantas no longer seeks to rely upon that restraint in the proceedings commenced in this Court: see [47]-[48] below.
5. By letter dated 21 January 2021, Mr Rohrlach denied that the restraints were enforceable.
6. By letter dated 29 January 2021, Qantas foreshadowed commencing proceedings if suitable undertakings were not received from Mr Rohrlach.
7. By letter dated 25 February 2021, Qantas indicated it would commence the proceedings if appropriate undertakings were not received by 1 March 2021.
8. On 1 March 2021, Mr Rohrlach commenced the Singapore Proceedings. His claim in the Writ of Summons is as follows: "1. The Plaintiff is an employee of [Qantas]. He is currently the co-CEO of Jetstar Japan (a related company of [Qantas]). 2. The Plaintiff tendered his resignation on 18 December 2020, and has been placed on gardening leave. His last day with [Qantas] will be 17 March 2021. 3. The Plaintiff intends to join the 2nd Defendant, Virgin Australia as CEO of Velocity (Virgin Australia's Loyalty Programme) after his departure from the Plaintiff [scil. Qantas]. He intends to commence his employment with the 2nd Defendant on or after 3 May 2021. 4. [Qantas] has objected to the Plaintiff joining the 2nd Defendant and has threatened to sue the Plaintiff for breach of the restraint of trade covenants in his employment agreements, namely: (1) Clause 13.2 of the Plaintiff's Employment Agreement with the 1st Defendant dated 17 December 2015; and (2) Clause 4 of the Restraint Deed Poll (contained in Annexure 4 of the Assignment Letter dated 6 September 2017) ('Restraint Deed Poll'). (collectively, the 'Restraint of Trade Covenants') 5. The Plaintiff avers that he did not sign the Restraint Deed Poll and is not bound by the terms of the Restraint Deed Poll. 6. The Plaintiff further avers that the Restraint of Trade Covenants are void and unenforceable. 7. The Plaintiff claims against the Defendants: (1) A declaration that Clause 13.2 of the Plaintiff's Employment Agreement with the 1st Defendant dated 17 December 2015 is void and unenforceable; (2) A declaration that Clause 4 of the Restraint Deed Poll has no legal effect and/or is void and unenforceable; (3) Costs; and (4) Such further or other order relief as this Honourable Court deems fit." (emphasis in original)
9. The Singapore Proceedings may be broadly characterised as being for negative declaratory relief, a technique sometimes (but not always successfully) deployed in transnational litigation where jurisdictional jockeying is perceived as having some tactical advantage: see Messier-Dowty Ltd v Sabena SA [2000] 1 WLR 2040; Centrebet Pty Ltd v Baasland [2013] NTSC 59 at [112]-[130]; and see AS Bell, "The Negative Declaration in Transnational Litigation" (1995) 111 LQR 674; Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305; [1972] HCA 19. However, quite apart from forum considerations, such applications are not unknown in the context of litigation concerning restraints of trade where a person prima facie found by a restraint seeks to have its enforceability resolved prior to embarking on a venture which might contravene it, and are specifically contemplated by the Restraints of Trade Act 1976 (NSW) s 4(3).
10. On 5 March 2021, as has already been noted, Qantas commenced its proceedings in this Court. The relief sought on a final basis in the Summons, apart from injunctions giving effect to the post-employment restraints, was an anti-suit injunction restraining Mr Rohrlach from continuing his claims in the Singapore proceedings for negative declaratory relief as well as from taking any steps in Singapore to restrain the continuation of the NSW proceedings.
11. Also filed on the same day as the Summons in the NSW proceedings was an affidavit of Mr Gareth Jolly, the solicitor for Qantas. Paragraphs 10-13 of that affidavit should be noted. Mr Jolly said: "Mr Rohrlach is subject to post employment restraints in both his contract of employment from 2015 (Singaporean contract, Singaporean restraint) and an assignment letter for his current role in 2017, together with an annexed but unsigned deed poll (Japanese contract, Japanese restraint). Qantas considers that Mr Rohrlach is precluded from commencing employment [with] Virgin before 18 September 2021 by the Japanese restraint. After Qantas advised that it would be commencing proceedings against Mr Rohrlach and Virgin in the Supreme Court of New South Wales, Mr Rohrlach commenced proceedings … in the High Court of the Republic of Singapore against Qantas - with Virgin as the second defendant. Qantas has elected not [to] rely on the Singaporean restraint and will be advising Mr Rohrlach's solicitors of this today." (emphasis in original)

The primary judgment

1. Qantas' Notice of Motion and Mr Rohrlach's application for a stay of the NSW Proceedings were heard concurrently. As the primary judge observed: "6 They largely turn on whether an exclusive jurisdiction clause in the written employment agreement dated 17 December 2015, under which Qantas employed Rohrlach in the position of "Executive Manager Strategy and Customer - Jetstar" … captures the proceedings. 7 Qantas argues that the clause does not apply to its claim against Rohrlach. If this is correct, Rohrlach accepts that Qantas is entitled to succeed in its application and Rohrlach's application for a stay must fail. 8 If, however, the exclusive jurisdiction clause does cover Qantas' claim, Qantas accepts that it should be enforced unless there are strong reasons why it should not be. Qantas argued, albeit faintly, that there are such strong reasons."
2. On the hearing of the application for leave to appeal, there was some discussion and debate in relation to what the primary judge said in [7] of his judgment, extracted above. What was there said assumed, hypothetically, that Qantas succeeded in its argument as to whether or not cl 16.1 of the Employment Agreement "captured", to use the primary judge's terminology, the NSW Proceedings. As, for the reasons explained below, Qantas has not succeeded on this argument, it will not be necessary to determine whether an anti-suit injunction would have been granted to restrain Mr Rohrlach from concurrently pursuing his claims for negative declaratory relief in Singapore. It is well to observe, however, that just because a party successfully resists an application to stay local proceedings, it does not automatically follow that concurrent or overlapping proceedings in a second jurisdiction will be will be liable to be restrained as vexatious and oppressive on the principles described in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33. See, for example, TS Production LLC v Drew Pictures Pty Ltd (2008) 172 FCR 433; [2008] FCAFC 194; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 1) (1996) 64 FCR 1; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 2) (1996) 64 FCR 44 and note the discussion in to Re Treadtel Pty Ltd [2014] NSWSC 1406 at [14]-[24].
3. Returning to the judgment at first instance, the primary judge's reasoning was as follows: "43 The thrust of Qantas' argument is that whilst it accepts the exclusive jurisdiction clause binds Qantas and Rohrlach in relation to the Agreement and the Assignment Letter, it puts that it does not apply to enforcement of the Deed Poll. 44 It argues that the Deed Poll is a self-contained instrument which stands apart from the Agreement and the Assignment Letter. It points to the fact that some of the persons who are intended to be beneficiaries of the Deed Poll (i.e. members of the Qantas Group) are not themselves parties to the other instruments. 45 It argues that the Deed Poll does not incorporate the terms of the other instruments or provide that they govern its operation. 46 It argues that there is no sensible reason to apply the exclusive jurisdiction clause, which is in an instrument governed by the laws of Singapore, whereas the Deed Poll is governed by the laws of Japan. It argues that the parties would not have expected the original clause to apply where Singapore law no longer applies. 47 These submissions are unsustainable. 48 The Deed Poll is not a standalone instrument. It is one of a coherent and congruently operating suite of three agreements. 49 The opening paragraph of the Assignment Letter provides that the assignment is on the terms and conditions of the letter and the Deed Poll. Clause 1 of the Assignment Letter expressly provides that Rohrlach will continue to be employed on the terms and conditions of the Agreement as varied by the Assignment Letter. Paragraph 14 of the Assignment Letter records that Rohrlach will be subject to any post-employment obligations under the Agreement and the Deed Poll. By paragraph 7(b) of the Deed Poll, definitions in the Assignment Letter are incorporated in the Deed Poll. 50 The Deed Poll has independent binding effect in its own right, but as between Qantas and Rohrlach, the Assignment Letter itself provides that he will be subject to the restraints in the Deed Poll, and it is not in issue that the exclusive jurisdiction clause covers the Assignment Letter. 51 There is no real constructional choice to be made here. Clause 16.1 of the Agreement is an agreement in unrestricted terms to submit to the exclusive jurisdiction of the Courts of Singapore. This clause was part of the offer which Qantas made. It may be inferred that it saw the submission as being in its commercial interests. 52 The submission that Qantas' construction is supported by the fact that the Deed Poll is for the benefit of non-party beneficiaries is undermined by the facts that each of those beneficiaries is a Qantas associate and that the Agreement itself provides that the restraints in it are for the benefit of the Qantas Group (which is defined in not dissimilar terms in the Deed Poll). 53 The submission that the choice of Japanese law in the Deed Poll supports Qantas' construction is undermined by the fact that the Deed Poll contains no submission to the jurisdiction of the Courts of Japan. 54 One consequence of upholding Qantas' construction is that there would be a binding submission to jurisdiction for one part of the party's contractual dealings but none in relation to another part. Qantas could not sue anywhere but in Singapore under the Employment Contract, but could go elsewhere, as it seeks to here, if it sued exclusively under the Deed Poll. This gives rise to incongruent operation between different components of one overall contractual arrangement. Added to this, it is unlikely that they intended that different disputes should be resolved before different tribunals or that there should be a firm jurisdictional choice for one category of dispute while leaving another dispute about the same subject matter (a restraint) at large. 55 The result is that, in my view, the exclusive jurisdiction clause applies to the claim which Qantas seeks to make in the proceedings."

Draft Notice of Appeal

1. Qantas relies on a single ground of appeal, if leave to appeal is granted, namely that: "The primary judge erred in finding that the exclusive jurisdiction clause in clause 16.1 of the employment contract comprised of the letter dated 17 December 2015, from the Appellant to the First Respondent, applied to the claim which the Appellant seeks to make in the proceedings below."

Consideration

1. Although the Employment Agreement, the Assignment Letter and the Deed Poll may be referred to as a "coherent and congruently operating suite of three agreements", they are three agreements and, as the primary judge observed at PJ [50], the "Deed Poll has independent binding effect in its own right." There may be a degree of tension between this observation and his Honour's earlier observation (at PJ[48]) that the "Deed Poll is not a standalone instrument" but his Honour was in this paragraph of the judgment no doubt referring to the fact that the Deed Poll was an annexure to the Assignment Letter, that Mr Rohrlach agreed in the Assignment Letter to execute the Deed Poll and that the restraints in the Deed Poll operated from the termination of Mr Rohrlach's employment with Qantas under the Employment Agreement.
2. The fact that Mr Rohrlach agreed, in the Assignment Letter, to be bound by the terms of the Deed Poll does not detract from two important points which Qantas emphasised in its submissions on appeal: first, as the primary judge observed, the Deed Poll has independent and binding effect in its own right; and, second, Qantas has elected to sue to enforce only the post-employment restraint of trade clause contained in cl 4 of the Deed Poll and seeks no relief under either the Employment Agreement or the Assignment Letter.
3. The fact that Qantas has elected only to seek relief under the Deed Poll is not, however, the end of the matter. It is for this reason that Qantas' submission on appeal that "no part of the Deed Poll incorporates the operative provisions of the Employment Contract or Assignment Letter" does not avail it.
4. Whether or not Qantas' claim under the Deed Poll is caught by the Singapore exclusive jurisdiction clause contained in cl 16.1 of the Employment Agreement is a matter of the proper construction of that clause. It does not turn on the terms of the Deed Poll, noting that there is no inconsistent jurisdiction clause in the Deed Poll nor an entire agreement clause which states that the Deed Poll supersedes any prior agreements, arrangements or understandings between the parties. Indeed, notwithstanding the stated independent operation of the restraints contained in the Deed Poll, it is of significance that, as cl 1 of the Assignment Letter made plain, Mr Rohrlach continued to be employed on the terms and conditions of the Employment Agreement whilst on assignment in Japan
5. The reason why the question of whether or not Qantas' claim under the Deed Poll is caught by cl 16.1 of the Employment Agreement is a matter of the proper construction of that clause is because the scope of any given exclusive (or non-exclusive) jurisdiction (or arbitration) clause may extend beyond purely contractual claims arising under the contract in which the jurisdiction clause is contained. Indeed, as a matter of contractual theory, a jurisdiction clause, as with an arbitration clause, may be regarded as a separate or separable contract which stands outside the wider commercial agreement in which such clauses are traditionally located: see FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559 at 566-568; A Briggs, Agreements on Jurisdiction and Choice of Law (2008, Oxford University Press) at [1.20]-[1.21], [3.13].
6. In Satyam Computer Services Ltd v Upaid Systems Ltd [2008] EWCA Civ 487; [2008] 2 All ER (Comm) 465, CA at [93], Lawrence Collins LJ (as his Lordship then was) observed that "[w]hether a dispute under a different contract is within a jurisdiction agreement depends on the intention of the parties as revealed by the agreement".
7. It is thus necessary to attend closely to the language of cl 16.1 of the Employment Agreement. It is expressed in simple language: "The parties agree to submit to the exclusive jurisdiction of the Courts of Singapore."
8. The use of the word "exclusive" makes plain that the parties were intending by this clause to do something more than simply to render themselves amenable to being sued in the nominated jurisdiction. A "submission to jurisdiction" clause has the effect of permitting the nominated court to exercise personal jurisdiction over the parties so submitting even though one or more of those parties is not resident in the nominated jurisdiction. It also permits jurisdiction "in the international sense" to be exercised over those parties which may be important for the subsequent recognition and/or enforcement abroad of any judgment given in that jurisdiction: see Nygh at [7.2]. But, critically, the use of the word "exclusive" in the present case indicated that Singapore was the only jurisdiction in which the parties intended that any litigation between them and within the scope of the clause would be fought out.
9. As is not uncommonly the case with jurisdiction or forum clauses in commercial contracts, cl 16.1 is somewhat elliptical because it does not spell out what disputes were intended to be submitted to the exclusive jurisdiction of the courts of Singapore. As observed elsewhere, "dispute resolution clauses may be crafted and drafted in an almost infinite variety of ways and styles": Inghams Enterprises Pty Limited v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82 (Inghams) at [48]. (For a catalogue containing examples of the wide variety of forms which jurisdiction clauses may take, see the Appendix to the judgment in Inghams).
10. The ambit or scope of a jurisdiction or exclusive jurisdiction clause (or an arbitration clause) is generally demarked by phrases such as "all disputes under this Contract", "all disputes arising from or out of this Contract", "all disputes arising from or out of or in any way related to this Contract" and so forth. Depending upon the width of any given clause, an assessment can be made as to whether a particular claim falls within or outside its scope. Adjectival disputes of this nature typically arise when applications are made for a stay of proceedings or the grant of an anti-suit injunction in circumstances where proceedings have been commenced abroad and the claim in the foreign proceedings is said to fall within the scope of a local exclusive jurisdiction clause.
11. In the present case, however, the scope of the exclusive jurisdiction clause is, as I have observed above at [61], elliptical. Its breadth is to be divined from the construction of the Employment Agreement as a whole by reference to ordinary principles of contractual construction.
12. In this context, it should be noted that a body of principles has evolved in relation to the interpretation of the scope or ambit of jurisdiction clauses and agreements. I sought to identify those principles in Lepcanfin Pty Ltd v Lepfin Pty Ltd (2020) 102 NSWLR 627; [2020] NSWCA 155 at [78]-[94] (Lepcanfin); see also Inghams at [53]-[67]. They are not in truth to be understood as any different in substance to the principles applicable to the interpretation of commercial agreements more generally, save for the fact that "commercial common sense" in the context of dispute resolution points strongly in favour of a broad interpretation being given to the scope of such clauses. As Gleeson CJ said in a frequently cited passage from Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165, commercial parties: "are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument."
13. In addition to those principles, useful observations to similar effect have been made in a series of English cases which have dealt with forum disputes where, as in the present case, the parties to the dispute are or have been party to more than one potentially relevant agreement. Thus, in Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998; [2011] 1 Lloyd's Rep 106 at [41]-[42], Thomas LJ (as his Lordship then was) observed that: "just as parties to a single agreement do not intend as rational businessmen that disputes under the same agreement be determined by different tribunals, parties to an arrangement between them set out in multiple related agreements do not generally intend a dispute to be litigated in two different tribunals. However, where there are multiple related agreements, the task of the court in determining whether a dispute falls within the jurisdiction clauses of one or more related agreements, depends upon the intention of the parties as revealed by the agreements against these general principles …" See also UBS AG v HSH NordBank AG [2009] EWCA Civ 585 at [83]; [2009] 2 Lloyd's Rep 272; Airbus SAS v Generali Italia SpA [2019] EWCA Civ 805; [2019] 2 Lloyd's Rep 59 at [59]-[61].
14. These themes loomed large in the primary judge's decision in the present case: see especially PJ [54] set out at [51] above.
15. Although the parties did not define the scope of cl 16.1 of the Employment Agreement, at the very least it must be taken to have been intended to apply to any disputes in connection with or relating to the subject matter of that Agreement. Such a construction conforms with the principles summarised in Lepcanfin. It is also supported by the fact that cl 16.4 of the Employment Agreement states that that Agreement represented the entire agreement between Qantas and Mr Rohrlach as to its subject matter.
16. As Mr Shariff SC, who appeared for Mr Rohrlach, submitted, the fact that the parties did not seek to delimit the scope of cl 16.1 was itself suggestive of the fact that they intended it to be broad in its reach. It made commercial sense for the parties to have as broad an exclusive jurisdiction agreement as possible, especially in the context of an employment position which itself contemplated mobility either on a permanent or temporary basis and in an industry which was international by nature and in which a senior executive could transfer to a competitor in any number of different jurisdictions around the world.
17. If, as I consider to be the case, cl 16.1 was intended to extend to any dispute relating to or in connection with the subject matter of the Employment Agreement, that subject matter must be identified. Fundamentally, it concerned Mr Rohrlach's employment with Qantas and the terms and conditions of that employment. The "subject matter" extended to confidential information (cl 11), the termination of Mr Rohrlach's employment and his obligations after termination of that employment.
18. The subject matter also extended to Mr Rohrlach's potential temporary or permanent transfer during the course of his employment to another location (see cls 1.1(d) and 1.6(d)), as indeed occurred in September 2017. The parties, moreover, contemplated that in that event, the Employment Agreement could be varied in writing, as it was by the terms of the Assignment Letter.
19. The Assignment Letter largely varied the Employment Agreement by the addition of terms relevant to the assignment. Significantly, however, the Entire Agreement clause in the Employment Agreement was varied so that the entire agreement and understanding of the parties came, by virtue of cl 18 of the Assignment Letter, to be embodied by "[t]his Assignment Letter, read in conjunction with [the] Employment Contract". It is also to be recalled that part of cl 14 of the Assignment Letter provided that: "If your employment terminates, you will be subject to any post employment obligations under your Home Location contract of employment and the Deed Poll in Annexure 4 (unless we agree otherwise)."
20. There is no reason to suppose that the parties intended that the jurisdiction clause would cease to apply in the event that Mr Rohrlach was relocated but continued to be employed under the terms of the Employment Agreement, albeit supplemented by the terms of the Assignment Letter. Indeed, the Assignment Letter expressly provided in cl 1 that, whilst on assignment, the terms of the Employment Agreement (as varied by the Assignment Letter) continued to apply to Mr Rohrlach. Those terms included cl 16.1.
21. In my opinion, the dispute sought to be agitated in the NSW Proceedings relates to or is in connection with the subject matter of Mr Rohrlach's Employment Agreement with Qantas and therefore fell within the scope of cl 16.1 of the Employment Agreement.
22. The dispute concerns whether or not Mr Rohrlach is to be restrained from working for a competitor of Qantas for a period of six months following the termination of that Employment Agreement. It matters not, in my opinion, that the source of the right to restrain him from so doing that Qantas seeks to rely upon is contained in a separate agreement, namely the Deed Poll, and that the restraint clause in the Deed Poll is said to be independent of the restraint clauses in the Employment Agreement. The Deed Poll is only relevantly engaged because Mr Rohrlach was employed by Qantas under the terms of the Employment Agreement and chose to terminate the Employment Agreement. The restraints in the Deed Poll operate by reference to the termination provisions in the Employment Agreement and Mr Rohrlach agreed to be bound by the Deed Poll as a function of his execution of the Assignment Letter.
23. For these reasons, the decision of the primary judge was correct.
24. If the Deed Poll had its own exclusive jurisdiction clause, such a clause may well have been taken to have superseded the operation of cl 16.1 of the Employment Agreement in respect of any dispute falling within the scope of the former clause. In those circumstances, the principles stated by Hamblen LJ in BNP Paribas SA v Trattamento Rifiuti Metropolitani SpA [2019] EWCA Civ 768; [2020] 1 All ER 762 at [68], relating to cases involving related agreements with more than one jurisdiction clause would have been engaged. See also Monde Petroleum v Westernzagros Ltd [2015] EWHC 67 (Comm); [2015] 1 Lloyd's Rep 330, in which a dispute resolution clause in a settlement agreement superseded a dispute resolution agreement in the underlying contract out of which the dispute that was settled arose; see also more generally Concut Pty Ltd v Worrell (2000) 176 ALR 693; [2000] HCA 64 at [19]; Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 at [22].
25. So, too, if the Deed Poll contained an entire agreement clause. Depending on its precise wording, such a clause would generally be taken to have superseded cl 16.1 even if, viewed in isolation, a dispute relating to the post-employment restraints in the Deed Poll fell within its ambit. But this would not have been because the scope of cl 16.1 was different but simply because the clause had ceased to have operative effect vis-à-vis the Deed Poll.
26. In the absence of such clauses, however, the scope of cl 16.1 could not be affected by any of the terms of the Deed Poll. It was for this reason that a number of the arguments advanced on appeal by Qantas missed the mark.
27. Qantas' argument that the reference to "a court of competent jurisdiction" in cl 6(b) of the Deed Poll "suggest[ed] no exclusive jurisdiction clause is applicable" appears to have been an argument to the effect that this reference in some way impliedly defeated the operation of cl 16.1 of the Employment Agreement. I do not consider that to be its effect. That clause was included in the Deed Poll for the purposes of severing an unenforceable part of the restraint clause from the balance in the event that a court of competent jurisdiction held part of it to be unenforceable. A "court of competent jurisdiction" would be a court with personal and subject matter jurisdiction over the parties and the dispute. An exclusive jurisdiction clause does not oust the jurisdiction of other courts such that the parties' reference to a "court of competent jurisdiction" is not conceptually inconsistent with the parties' ongoing agreement exclusively to submit their disputes to the courts of a nominated country.
28. Similarly, the fact that the Deed Poll contained a Japanese choice of law clause did not operate to oust the operation of the exclusive jurisdiction component of cl 16.1 of the Employment Agreement. There was no doubt a very good reason for the introduction of such a clause in the Deed Poll given that Mr Rohrlach was to be on assignment in Japan. Just because a contract may be governed by the law of one country or legal system does not mean that the parties may not also agree, whether in the same or a different contract or agreement, to resolve their disputes in a jurisdiction other than that which supplies the governing law. This is an area of the law where, subject to certain exceptions not applicable to the present case, party autonomy is an important value: see generally P Nygh, Autonomy in International Contracts (1999, Clarendon Press). Choice of law and choice of jurisdiction are distinct concepts albeit that, as in cl 16.1, they are often coupled together as a matter of contractual drafting.
29. Qantas' submission that it was unlikely that the parties contemplated that cl 16.1 would apply where Singapore law was not the governing law does not bear on the question of the proper construction of the scope of cl 16.1. That scope was not altered by a subsequent agreement that the Deed Poll would be governed by Japanese law. A Singapore court would be no less adept at applying or giving effect to Japanese law than a New South Wales court is in applying foreign law, as not infrequently occurs in the Commercial List. In any event, given that the Assignment Letter expressly contemplated that Mr Rohrlach would be repatriated to Singapore after his employment with Qantas terminated, it made perfect commercial sense for the parties not to amend the Assignment Letter to vary cl 16.1 of the Employment Agreement, or to seek to include a different jurisdiction clause in the Deed Poll. Qantas is a sophisticated commercial operator. It would have been open to it to include such a clause in the Deed Poll but it evidently did not consider that was necessary as it had expressly negotiated to continue to have the benefit of the existing exclusive jurisdiction clause in favour of Singapore by providing, in the Assignment Letter, for the continuing operation and effect of the terms of the Employment Agreement.
30. Finally, Qantas' submission that the interpretation favoured both by the primary judge and myself "would extend to … a claim in tort or for misleading conduct arising long after Mr Rohrlach left Qantas' employment and having nothing to do with his employment" is not correct. There must be a nexus with that employment. Plainly, there was.

Conclusion

1. For all the above reasons in addition to those succinctly expressed by Brereton JA, I would grant leave to appeal but dismiss the appeal with costs.
2. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Bell P, with which I entirely agree. However, I wish to state, albeit briefly, my own essential reasoning for concluding that, as a matter of construction of the suite of documents that govern Mr Rohrlach's employment by Qantas, the claim which Qantas seeks to agitate is one in respect of which, as the primary judge held, the parties have agreed to submit exclusively to the jurisdiction of the courts of Singapore.
3. Under the Employment Agreement of 17 December 2015 - the so-called "Singapore contract" - Mr Rohrlach was employed by Qantas on the terms of that agreement (clause 1.2(a)), initially in the position of 'Executive Manager Strategy and Customer - Jetstar' (clause 1.1(b)), located in Singapore (clause 1.6(a)), but with the prospect of transfer to another position, or promotion, and/or temporary or permanent relocation (clause 1.6(d)), in which events the terms of the Employment Agreement were to continue to apply, unless expressly varied in writing (clause 1.1(d)). Clause 16.1 of the Employment Agreement provided: "This agreement is governed by the law in force in Singapore. The parties agree to submit to the exclusive jurisdiction of the Courts of Singapore."
4. For the reasons given by Bell P, [1] that clause must be taken to have been intended to apply, at least, to any disputes in connection with or relating to that agreement and Mr Rohrlach's employment under it.
5. Clause 16.2 provided that the agreement may only be amended or supplemented in writing, and clause 16.4 provided that it constituted the entire agreement in relation to its subject matter, except to the extent that a subsequent written agreement expressly provided that it overrode or varied either part or all of the agreement.
6. The Assignment Letter of 6 September 2017 made provision in respect of a temporary (see clause 5) assignment to Japan. It continued to treat Singapore as Mr Rohrlach's "Home Location", while Japan was the "Host Location", and envisaged his return to Singapore on completion of the assignment (clause 14). It expressly recognised that the Employment Agreement continued to apply to his employment, save only to the extent that it was varied by the Assignment Letter (clause 1), and provided that the Assignment Letter was to be "read with" the Employment Agreement (clause 18). Clause 19 provided: "Except for the Deed Poll in Annexure 4 which will be governed by the laws in the Host Location, this Assignment Letter will be governed by the laws of the place nominated in the Applicable Laws clause contained in your Employment Contract. In the event that disputes arise in respect of this Assignment letter, these laws will take precedence over the laws of any other jurisdiction."
7. The Deed Poll, which was an annexure to the Assignment Letter, execution of which was stipulated for in the Assignment Letter, and acceptance of which was incorporated in the memorandum of acceptance of the Assignment Letter, recited that execution of the Deed Poll was a condition of the assignment (clause 1), and imposed restraints referable to the end of Mr Rohrlach's employment - not the end of the assignment. Consistently with clause 19 of the Assignment Letter, clause 6(c) provided: "(c) The terms of this Deed Poll will be governed by the laws of Japan."
8. Neither the Assignment Letter nor the Deed Poll contained any express provision concerning jurisdiction, as distinct from choice of law - a distinction of which, as clause 16.1 of the Employment Agreement shows, the parties were well aware.
9. The Employment Agreement provided the overarching architecture governing Mr Rohrlach's employment - including any temporary assignment, subject only to any express variation made in connection with such assignment. The Japan assignment sat within that architecture. Indeed, the Assignment Letter confirmed the application of the Employment Agreement to the Japan assignment, save to the extent that it was amended by the Assignment Letter (including the Deed Poll). A dispute as to whether Mr Rohrlach would be in contravention of the restraints in the Deed Poll (and whether those restraints are valid and enforceable) is, therefore, a dispute in connection with or relating to his employment under the Employment Agreement.
10. Neither the Assignment Letter nor the Deed Poll expressly provided that it overrode or varied the jurisdiction clause in clause 16.1 of the Employment Agreement. That suffices to conclude that it continued to apply in respect of his employment on the Japan assignment. Again, however, the Assignment Letter went further, by confirming the application of the Employment Agreement to the Japan assignment, save to the extent that it was amended by the Assignment Letter (including the Deed Poll). While the Assignment Letter (and the Deed Poll) amended the choice of law clause in so far as the Deed Poll was concerned, by providing that the law of Japan would apply to it, neither purported to amend the jurisdiction clause.
11. It follows that a dispute as to whether Mr Rohrlach would be in contravention of the restraints in the Deed Poll (and whether those restraints are valid and enforceable), being a dispute in connection with or relating to his employment under the Employment Agreement, is one in respect of which the parties have submitted to the exclusive jurisdiction of the courts of Singapore.
12. The primary judge therefore rightly held that the exclusive jurisdiction clause applied to the claim which Qantas seeks to agitate. Because the question is one which will practically dispose of the proceedings in this Court, I agree that leave to appeal should be granted, but the appeal must be dismissed.
13. I agree with the orders proposed by Bell P.

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APPENDIX SCHEDULE ANNEXURE 4 - RESTRAINT DEED POLL Deed dated __________________ By: Nick Rohrlach of [ ] For the benefit of the Qantas Group as follows: (a) Qantas Airways Limited ("Qantas"); (b) any related body corporate (as that term is defined in the Corporations Act 2001 (Cth)) of Qantas; (c) any entity that controls, is controlled by or is under common control with Qantas; (d) any other entity that is connected with Qantas or any other member of the Qantas Group by a common interest in an economic enterprise, for example, a partner or another member of a joint venture. 1 Background You have agreed to the terms and conditions of the Assignment set out in the Assignment Letter. As a condition of the Assignment, you are also required to execute this deed poll ("Deed Poll"). 2 Obligations under your Employment Contract The obligations set out in this Deed Poll are in addition to the post-employment restraints set out in your Employment Contract, which continue to apply. The restraints in this Deed Poll and your Employment Contract operate independently of one another and are not intended to limit the operation of the other. 3 Non-solicitation Except with prior written consent of the Chief Executive Officer of the business unit you were working in, you must not for a period of 12 months after your employment ends, either on your own account, or jointly with any other person, or through any other person or entity: (a) solicit, persuade or induce or attempt or prepare to solicit, persuade or induce from any person or entity who or which was or is a client, customer or supplier of the Qantas Group with whom you had dealings at any time within the 12 months immediately prior to the end of your employment, to cease doing business with the Qantas Group, reduce the amount of business which the person or entity would normally do with the Qantas Group, or divert any new business from the person or entity away from the Qantas Group; or (b) induce or attempt or prepare to induce any director, employee, agent or contractor of the Qantas Group, to terminate their employment or relationship with the Qantas Group, whether or not that person would commit a breach of that person's contract of employment. 4 Post employment restraint Except with prior written consent of the Chief Executive Officer of the business unit you were working in, you must not, for a period of six months after your employment ends, be directly or indirectly engaged, concerned or interested in, or provide services (as an employee or contractor) to, any business or activity in competition with the Qantas Group: (a) in any capacity similar to the role or roles held by you at any time during the 12 month period immediately prior to the end of your employment; or (b) in any capacity or role in which you may be able to make use of the Confidential Information to the detriment of any member of the Qantas Group. 5 Restraints reasonable You acknowledge and agree that: (a) Prior to and during your Assignment you will acquire significant commercially sensitive information about the business (including, but not limited to corporate plans, budgets and prospective financial information), have access to Confidential Information and develop relationships with customers, clients, suppliers, directors, employees, agents and contractors. Accordingly, the restraints imposed under this Deed Poll are reasonable and not greater than are necessary to protect the Qantas Group in relation to the Confidential Information, its goodwill, relationships and legitimate business interests, and the parties intend the provisions to operate to the maximum extent possible at law. You acknowledge that damages are not an adequate remedy for the breach of this Deed Poll; and (b) You have agreed to the restraints in this Deed Poll in consideration of Qantas' agreement to offer you the Assignment (including the entitlements to the benefits and entitlements set out in the Assignment Letter). 6 General (a) Each restraint contained in clauses 3 and 0 [sic] of this Deed Poll constitutes a separate and independent provision, severable from other restraints. If a court of competent jurisdiction finally decides that any such restraint is unenforceable in whole or in part, the enforceability of the remainder of that restraint provision and any other restraint will not be affected. (b) Qantas recommends that you obtain independent legal advice about this Deed Poll, and you acknowledge having had a reasonable opportunity to obtain such advice. (c) The terms of this Deed Poll will be governed by the laws of Japan. 7 Definitions (a) "Confidential Information" means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of the Qantas Group, or of any customer or supplier of the Qantas Group including, without limitation: (i) all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records; (ii) all business and marketing plans and projections, details of agreements and arrangements with third parties, and customer and supplier information and lists; (iii) all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays; (iv) all information concerning any employee, customer, contractor or agent of the Qantas Group; (v) trade secrets and confidential know-how; (vi) Qantas Group policies and procedures; and (vii) all information contained in the Assignment Letter and this Annexure, but excludes information that has come into the public domain other than by a breach of your confidentiality obligations. (b) Any defined terms not defined in this Deed Poll have the meaning set out in the Assignment Letter. EXECUTED as a deed. Executed by Nick Rohrlach in the presence of __________________ Nick Rohrlach

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Signature of witness

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Name of witness (print)

Endnote

1. See at [67] supra. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2021