This passage was quoted with approval by Hely J in Reynolds v Southcorp Wines Pty Ltd (2002) 115 IR 152.
30 As is made clear by the observations I have just set out, remuneration at the contracted rate for the balance of the fixed term is, in a case of the present kind, not recoverable under the contract and is no more than a starting point in the assessment of damages in the ordinary way. The claim is therefore of an unliquidated nature, as are any damages awarded.
31 The second item in the total of $703,193.39 in paragraph 8, said to be a liquidated sum of $295,710, is for "loss of chances" to obtain bonuses under the contract. The stated sum is based on projected or budgeted turnover and profit figures. That alone is sufficient to show that the claim is not a liquidated claim. If damages including such a component were to be awarded, the court would have to come to a view of its own as to the future turnover and profit figures, assuming that it considered them capable of meaningful determination. But even then, the very description of the claim as being for "loss of chances" makes it clear that it involves an estimate by the court as to the likelihood of Poulsen's obtaining the benefits at all. The matter is governed by principles referred to in the following passage in the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 349:
"In the realm of contract law, the loss of a chance to win a prize in a competition resulting from breach of a contract to provide the chance is compensable, notwithstanding that, on the balance of probabilities, it is more likely than not that the plaintiff would not win the competition."
32 In addition, considerations similar to those relevant to the claim for future salary arise in relation to the second item concerning future bonuses. As with that claim, there are questions about the possibility that Poulsen would not have continued in his employment to the point at which the entitlements to bonus crystallised, quite apart from the questions about the likely state of the business and its profitability. In this case too, the claim is obviously a claim for unliquidated damages.
33 The third, fourth, fifth and sixth items ($32,607.11 for "loss of use of automobile", $13,528.00 for travel to Denmark and return, $48,555.42 for "loss of superannuation" and $1,560.00 "telephone bill") are, in concept, the same as the second. There is, in each case, an attempt to assign a fixed value to an element of remuneration or perquisite by reference to not only an assumption as to quantum but also the assumption that the employment would have continued to the end of the contracted term or, in the case of the travel claim, until the qualifying period had expired. These too are really claims for loss of the chance to obtain future benefits and are accordingly of an unliquidated character.
34 It is not necessary to consider the claims in paragraphs 9 and 10 of Poulsen's originating process. These, as I have said, represent entitlements that crystallised before termination of employment and are agreed to be outside the insurance policy.
35 Poulsen's claim in paragraph 11 of his originating process was for failure to reimburse expenses actually and reasonably incurred in the course of employment. As with the items in paragraphs 9 and 10, this, although of a liquidated nature (Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 139), relates to an entitlement that crystallised before termination and cannot be regarded as covered by the policy. The claim in paragraph 12, however, is different. It relates to loss of an asserted entitlement to have personal possessions transported to Denmark after termination of employment and, not being based on any provision of the contract, can only be regarded as an element of the overall claim to be compensated, by unliquidated damages, for loss occasioned by breach of contract.
36 For the reasons stated, any recoveries achieved by Poulsen upon the claims in paragraphs 1 to 8 and 12 of his originating process would not have been "liquidated damages" and, as a matter of construction, the exclusion in paragraph (b) of the policy's definition of "Damages" would not have operated.
Exclusionary paragraphs (d) and (e)
37 The next question is whether the exclusion in paragraph (d) or paragraph (e) of the "Damages" definition would have operated. That question also encompasses the question posed by paragraph (b)(iii) and (iv) of Section II cl.3, in that each turns upon whether payments made to Poulsen upon his assumed success in his action as pleaded would have come from either any express obligation to make payments or a breach of any express obligation to make payments.
38 In the light of what I have already said about the nature of Poulsen's claims, it will be clear that I do not consider that these questions can be answered favourably to Lumley. The claims in paragraphs 1 to 8 and 12 of Poulsen's originating process in no sense involve payment obligations or the enforcement of payment obligations. They are claims for breach of contract damages.
"Amounts to which this policy applies"
39 The remaining question is whether recoveries upon Poulsen's claims would have been "amounts to which this policy applies" (as referred to in the definition of "Damages") - a question to be answered by reference to paragraphs (a) to (e) of the insuring clause (Section II, cl.1). The only element of this about which there is controversy concerns paragraph (a) and the question whether Poulsen's recoveries would have been such as to "result from" an "Employment Practice".
40 Given their nature as claims for damages for breach of the employment contract (by reason of dismissal amounting to breach), the recoveries would be of that character, bearing in mind that "Employment Practice" includes "Wrongful termination of employment". A contract of employment is, of its nature, capable of being terminated by either party at any time. But if the termination is inconsistent with the terms of the contract itself - that is, amounts to a breach of contract - the party who terminated is exposed to an action for damages. The word "wrongful" generally connotes deliberate infringement of another's rights: see, for example, Beca Developments Pty Ltd v Idemeneo (No 92) Pty Ltd (1990) 21 NSWLR 459. In the particular context of a contract of employment, an employee whose contract is terminated by the employer otherwise than as the contract allows is accurately described as a "wrongfully dismissed employee" whose remedy is "damages, not wages as such": Gregory v Philip Morris Ltd (1988) 80 ALR 455 per Wilcox and Ryan JJ at 480.
41 The existence of statutory provisions at both Commonwealth and State levels dealing with dismissal in circumstances that are "harsh, unreasonable or unjust" (eg, s.170CE of the Workplace Relations Act 1996 (Cth) and s.84 of the Industrial Relations Act 1996 (NSW)) and the fact that monetary remedies (such as backpay upon enforced reinstatement) are available through those statutory avenues in no way detracts from the proposition that, as a matter of ordinary language, dismissal in breach of contract is properly regarded as within the description "wrongful termination of employment". It is the infringement of the employee's right to due performance and observance of the contract that makes the termination "wrongful".