Saridas v Papuan Oil Search Ltd

any v Dillon (1993)176 CLR 344; [1993] HCA 4 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Bott v Carter [2012] NSWCA 89 Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; 246 IR 138 Butt v McDonald (1896) 7 QLJ 68 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) NSWLR 41; [2021] NSWCA 246 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115; [2007] HCA 61 Kyrwood v Drinkwater [2000] NSWCA 126 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 Murray Darling Basin Authority v Doyle's Farm Produce Pty Ltd [2021] NSWCA 191 Newey v Westpac Banking Corporation [2014] NSWCA 319 Purcell v Tullett Prebon (Australia) Pty Ltd [2010] NSWCA 150 R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601; [1938] HCA 44 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 Shaw v State of New South Wales [2012] NSWCA 102 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Stevens v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Willmott Growers Group Inc v Wilmott Forests Ltd (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592; [2013] HCA 51 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681; [2021] HCA 23 Category: Principal judgment Parties: Aynet Saridas (Plaintiff) Papuan Oil Search Ltd (Defendant) Representation: Counsel: D Hooke SC (Plaintiff) D O'Dowd (Plaintiff) I Neil SC (Defendant) B Rauf (Defendant)

Solicitors: Gillis Delaney Lawyers (Plaintiff) Kingston Reid (Defendant) File Number(s): 2021/324287

Judgment

1. Ms Saridas was employed for some months as the Chief Financial Officer designate of Papuan Oil Search Limited. The parties executed a deed of release before her employment came to an end, on an agreed date in November 2020. By her amended statement of claim Ms Saridas pleaded that beforehand, Oil Search had breached her contract of employment and the whistleblower provisions of the Corporations Act 2001 (Cth): Pt 9.4AAA and that afterwards, it also breached the deed as well the whistleblower provisions. Ms Saridas pursues damages for breach of the employment contract, the deed and the whistleblower provisions.
2. The claims are all defended. By its cross-claim Oil Search also claimed that in commencing the proceedings Ms Saridas had herself breached the deed and thus sought to be indemnified in respect of loss, damage or liability arising out of the proceedings. Alternatively, it sought to be repaid the sums it had paid Ms Saridas under the deed.
3. By its amended 29 April 2022 motion Oil Search sought orders under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) dismissing parts of Ms Saridas' amended statement of claim as disclosing no reasonable cause of action and involving an abuse of the Court's processes. In the alternative, orders striking out aspects of the claim under r 14.28 as not disclosing a reasonable cause of action or have a tendency to cause prejudice, embarrassment or delay are sought.
4. Those orders were opposed, but Ms Saridas also filed a motion seeking leave to further amend her statement of claim. That was formally opposed, but the parties directed their cases on the strike out application to the claims which she wished to advance by that pleading. They also agreed that other problems with the proposed pleading raised by the motion would be the subject of further discussion between them, after this judgment was given.
5. Oil Search also seeks to have set aside a notice to produce served by Ms Saridas in March 2022 by its 1 April 2022 motion. Its fate is also tied to the outcome of the strike out motion and is thus also to be the subject of further consideration by the parties, after the delivery of this judgment.

Issues

1. There was no issue as to the evidence on which the parties advanced their respective cases, or: 1. as to how the deed came to be entered and the payments agreed were made to Ms Saridas in accordance with its terms. In written submissions it was also accepted that those terms were intended "to finalise and determine" the parties' rights in respect of the circumstances of her employment; and 2. that it was intended that the non-disparagement terms of the deed would survive the termination of the employment, those provisions being intended to regulate how the parties later conducted themselves.
2. In issue is whether: 1. the employment contract and the deed contained the implied terms which Ms Saridas pleaded; and 2. breach of the deed entitled Ms Saridas to pursue the pleaded claims for breach of her employment contract, as well as the claimed breaches of the whistleblower provisions, the breaches rendering the deed void ab initio, that is, from the start.

Conclusion

1. I am satisfied that but for the whistleblower claims which relate to Oil Search's claimed conduct after the deed was entered, the orders which Oil Search pursued at the hearing must be made. Other objections to Ms Saridas' proposed further amended statement of claim and notice to produce are to be further discussed in light of this conclusion.
2. For reasons I will explain, I have concluded that even if the claimed terms on which Ms Saridas' case rests were implied in her employment contract and it was found that they had been breached by Oil Search, the evidence establishes that she was not constructively dismissed.
3. Further, Ms Saridas' claim that the deed of release was void ab initio because it was breached by Oil Search, is legally untenable. The result is that her claims for damages for breach of the employment contract and the whistleblower provisions of the Corporations Act during the course of her employment cannot succeed, released as they all were by the deed.
4. But I have reached a different conclusion in relation to Ms Saridas' claims that Oil Search also breached the whistleblower provisions when it breached the non-disparagement provisions of the deed, after the termination of her employment.

The parties' cases

1. Oil Search's motion was supported by affidavits sworn by its solicitor, Ms DeBoos. Ms Saridas relied on affidavits sworn by her solicitor Mr Gillis. Their evidence was uncontested.
2. Oil Search's case was that the deed provided a complete bar to Ms Saridas' pleaded claims other than in relation to the claimed breaches of the deed, relying as they do on terms of her contract and statutory rights and duties which operated during her employment, which were all a subject of the release which she gave by the deed. Other than the claimed breaches of the deed, her claims all arose out of the employment and were resolved by the deed, which continues to bind the parties, even if it was later breached as Ms Saridas claims.
3. Ms Saridas' case was that the deed provided no bar to any of her claims because: 1. she had been constructively dismissed, her position having been made untenable as the result of various breaches of her contract; 2. the employment contract contained an implied term that Oil Search would provide her with a safe place of work, which it had breached; 3. Mr Lee, Oil Search's chairman, had a statutory duty to ensure her health and safety, which he had breached; 4. the deed contained essential terms as to steps to be taken to avoid her suffering reputational damage; 5. it was an implied term of the deed that Oil Search would advise its officers and employees of its and their contractual obligation not to disparage her; 6. Oil Search and others had breached the non-disparagement provisions of the deed; 7. this had involved a repudiation of essential terms of the deed which she was entitled to accept; 8. the breaches of the deed evinced Oil Search's intention not to be bound by the deed, making the deed void ab initio; and 9. this not only entitled her to pursue the damage she had suffered as a result of the breaches of the deed, but also those which she had suffered as the result of the breaches of her employment contract and statutory rights.
4. Further, that if the amended statement of claim contained any insufficiency which could be cured by further pleading amendment, Ms Saridas had to be given that opportunity, rather than the Court summarily dismissing or striking out her claim.

Is Ms Saridas entitled to pursue the pleaded claims for breach of her employment contract?

The test

1. Summary dismissal of a claim without a hearing on the merits is not lightly granted: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at [129]-[130]. What is required is a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [44]-[46]; Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24].
2. While proceedings should not generally be dismissed if there is "a real question to be tried", where "upon full legal argument it is established that there was no legally tenable cause of action, summary dismissal is an appropriate course": Bott v Carter [2012] NSWCA 89 at [13].
3. What lies in issue now also has to be considered in the context of the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings.
4. It follows that if it is accepted that the amended statement of claim advances a case which the Court is satisfied cannot succeed, it must be dismissed, rather than allowing the pursuit of a pleading amendment which would involve useless expense. That is because s 56 limits the circumstances in which the Court, satisfied that the dismissal power is available to be exercised, might be inclined to refuse relief on discretionary grounds: Bott at [14].
5. In Murray Darling Basin Authority v Doyle's Farm Produce Pty Ltd [2021] NSWCA 191, it was agreed on an application for leave to appeal from strike out orders, that three questions should be returned to the trial judge. They were then considered in the appeal determined in Doyle's Farm Produce Pty Ltd v Murray Darling Basin Authority (No 2) (2021) NSWLR 41; [2021] NSWCA 246 at [14]-[16], but that leads to no different test on an application such as this.

How was the employment terminated?

1. The undisputed evidence establishes the terms of the contract under which Ms Saridas was employed and how it came to an end.

The employment contract

1. The May 2020 contract specified Ms Saridas' total fixed remuneration and superannuation: cl 7. It also referred to a short term incentive plan and a long term incentive plan, which it noted she "may be eligible to participate in", but which did not guarantee her any payment under either plan: subcl 8.1. Those plans are not in evidence.
2. The contract also contemplated that Ms Saridas might become a director, but that this would not entitle her to any additional remuneration under the contract: cl 9. There is no suggestion that Ms Saridas did become a director.
3. The contract noted that Ms Saridas' annual leave entitlement was that provided for by the Fair Work Act 2009 (Cth): cl 11.
4. The contract could be terminated by Oil Search for any reason with 6 months' written notice or payment in lieu and by Ms Saridas, by the giving of 6 months' notice, which Oil Search could then elect to pay out: subcll 19.3 and 19.4.

The termination

1. In November 2020 Ms Saridas wrote to Mr Lee, advising him of matters which she had found "disturbing and unacceptable" and considered had undermined her ability to transition into the CFO role and so she sought to discuss with him her exit. Her further amended statement of claim incorporates this letter.
2. The deed was later agreed and her employment came to an end on 30 November, in accordance with its terms, on her resignation.

The Deed

1. The recitals to the deed recorded that Ms Saridas' employment was to end on 30 November 2020 and that: "Without admission of liability, the Company and the Employee have agreed to resolve any matters in actual or potential dispute between or in connection with them or directly between or in connection with the Employee and any member of the Group on the terms set out in this Deed."
2. The term "Group" was defined in the deed to mean "the Company and Related Bodies Corporate of the Company, and all directors, officers and employees and former directors, officers and employees of the Company and Related Bodies Corporate of the Company, jointly and severally." That definition included Mr Lee and the CEO and CFO, about whom Ms Saridas had complained in her November letter. The deed was entered without admission of liability by any member of the Group, otherwise than under the deed: cl 4.
3. The deed provided for a termination payment totalling $856,757.15 for payments in lieu of notice, pro rata short term incentive and ex gratia payments, as well as a leave payment: cl 2. It there provided: "2. PAYMENT AND OTHER BENEFITS 2.1 Subject always to strict compliance by the Employee with the terms and conditions of this Deed and the receipt of this Deed duly executed by the Employee, the Company agrees to provide to the Employee the payment set out in Schedule 1 to the Deed within 14 Business Days of the Termination Date provided that the Employee has returned a duly executed Deed. 2.2 The Termination Payment will be provided to the Employee by way of direct deposit into the Employee's bank account. 2.3 The Company agrees, as part of the Termination Payment, to exercise its discretion and pay the Employee a pro-rata Short Term Incentive in respect of the 2020 performance year less deductions for all relevant taxes. 2.4 The Termination Payment includes an ex-gratia cash payment in lieu of Performance Rights to be awarded on the commencement of the Employment in accordance with the Oil Search Long Term Incentive Plan. 2.5 The Employee acknowledges and agrees that there are no outstanding amounts owed to the Employee by the Company or Group."
4. The payments which Ms Saridas received in return for the releases she gave, in addition to her annual leave entitlement, appeared in schedule 1: Pay Components Total Weeks TFR Weekly Rate Total Payment Payment in lieu of Notice 26 $15,384.62 $400,000.00 Payment in lieu of Notice - Super Payable -$1,807.85 Pro-Rata Short Term Incentive (Subject to Deed of Release) $139,200.00 Ex-Gratia Payment (Subject to Deed of Release) $119,365.00 Ex-Gratia Payment Equivalent to Three Months TFR (Subject to Deed of Release) $200,000.00 Total Gross Termination Payment $856,757.15

1. How the termination was to be communicated by Oil Search was also agreed. Subclause 3.1 Communication provided: "The Company will use the communication contained in Schedule 2 to this Deed both internally and externally to explain (where necessary) the Termination."
2. Schedule 2 provided: "Oil Search CFO Designate Ayten Saridas has decided to resign from her position to pursue other opportunities in the corporate sector. Ms Saridas will finish with Oil Search on 1 December 2020 by mutual agreement. Oil Search CEO and Managing Director Keiran Wulff wished Ms Saridas all the best in her next career chapter and thanked her for her valuable contributions made to both corporate strategy and financial stewardship during her time with the company."
3. There was also an agreed non-disparagement provision: cl 5. In Ms Saridas' case subcl 5.1 required her not to: "a) disparage or otherwise bring any member of the Group or any employee, manager or director of the Group into disrepute as a result of or in connection with the Termination of her Employment. b) do any act or thing or make or cause to be made any statement reasonably likely to damage the Company or Group business or reputation and Employee agrees to use all reasonable efforts to ensure that Employee's partner or spouse does not do any such act or thing or make or cause to be made any such statements."
4. For its part subcl 5.3 required Oil Search "not to disparage or otherwise bring the Employee into disrepute as a result of or in connection with their Employment and Termination." Subclause 5.4 also provided: "The Company will make all reasonable endeavours to ensure that its employees who have knowledge of the terms of this Deed conduct themselves in accordance with clause 5.3. Clause 5.3 does not apply to the Company or Group in circumstances where any of its employees make disparaging comments or criticism in respect of the Employee without the knowledge or consent of the Company."
5. The parties also agreed to a release and indemnity, which in Ms Saridas' case provided: "6.1 In consideration for the payments and other benefits outlined at clause 2 this Deed, the Employee hereby agrees: a) to release and does unconditionally release the Company and each of its Related Bodies Corporate from all Claims (including, without limitation, any claims for salary, notice of termination or payment in lieu of notice, severance or redundancy pay, annual holidays, long service leave, bonus payments, performance or incentive payments, commissions, fees, drawings, expenses, shares, share options, dividends, any other remuneration or employment benefit) that she has or may have, of whatever nature howsoever arising, or but for this Deed may have had against the Company or the Group, relating to or arising from her Employment, the Termination of Employment or any subject matter relating to or arising from the Recitals, whether known to the Parties or not known at the time this Deed is executed; b) not to make, or institute or assist any third party to make any Claims, demands, actions, proceedings, suits, complaints, liabilities, sums of money, damages and costs (including, without limitation, any claims for salary, notice of termination or payment in lieu of notice, severance or redundancy pay, annual holidays, long service leave, bonus payments, performance or incentive payments, commissions, fees, drawings, expenses, shares, share options, dividends, any other remuneration or employment benefit) that they have or may have or any third party may have, or but for this Deed may have had, against the Company or the Group (jointly or severally), relating to or arising from their Employment, the Termination of Employment, the making by any third party of any Claim of any kind against the Group, or any subject matter relating to or arising from the Recitals whether known to the Parties or not known at the time this Deed is executed; and c) to indemnify and keep indemnified the Group in relation to any loss, damage or liability suffered by it as a result of any Claims of the type referred to in clause a) and b) above."

The pleaded claim

1. The further amended statement of claim pleads the claimed implied terms at pars 5-7: "5. It was an implied term of the Employment Contract that the plaintiff would be provided with a safe place of work free from intimidation, harassment, disrespectful behaviour, discriminatory conduct and bullying by fellow workers and superiors. 6. It was a further implied term of the Employment Contract that the plaintiff would be provided with appropriate resources and opportunities to fulfil her executive responsibilities. 7. It was a further implied term of the Employment Contract that POSR would, as part of its obligations to provide a safe workplace, provide a safe environment in which to report and address and potentially remedy and prevent occasions of bullying behaviour, intimidation, belittlement, harassment, and disrespectful conduct."
2. Breaches of the contract are pleaded at par 8: "8. During the period of the plaintiff's employment and in breach of the implied terms cited above the plaintiff was: (a) subjected to bullying, intimidatory conduct, both physical and psychological, harassment, belittlement, and disrespectful conduct at the hands of the Dr. Kieran Wulff- Chief Executive Officer ("Wulff') and Gardener; and (b) was not provided with an induction plan; and (c) was subjected to belittling conduct in front of fellow workers; and (d) was not provided with a defined transition plan with the incumbent CFO; and (e) was excluded from critical meetings, including Board meetings and from meetings and projects in which she ought to have been involved as part of her role and duties as CFO Designate; and (f) was constantly undermined in her decision making attempts to discharge her duties by the Wulff and Gardener; and (g) was not provided with a safe environment in which to report, address and potentially remedy and prevent occasions of bullying behaviour, intimidation, belittlement, harassment, and disrespectful conduct."
3. Ms Saridas claims that as a result, she suffered significant detriment to her health and wellbeing, which is not particularised: par 10. She also pleads that as a result her position became untenable, resulting in the cessation of her employment: par 11. Additionally, that she was constructively dismissed: "12. The conduct of POSR through the actions of Wulff, Gardener and POSR's failure to provide a safe workplace including without limitation the breaches pleaded in paragraph 8 above amounted to conduct on the part of POSR which was either intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end, thereby amounting to a constructive dismissal of the plaintiff in breach of the Employment Contract."

The implied terms

1. Implication of terms in a contract involves a test of necessity, in order to give the contract "business efficacy": Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 at 345. There is limited scope for a court to rewrite a contract, even by permissible consideration of surrounding circumstances, when the contractual language is unambiguous: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91].
2. In an employment contract terms may also be implied where, absent the implication, "the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined" or the contract would be "deprived of its substance, seriously undermined or drastically devalued": Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [29], applying Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 at 450 and 453.
3. The requirement for satisfaction that a term must be implied is that what is claimed, is what the contract actually means. It is not enough for a court to consider that the implied term expresses what it would have been reasonable for the parties to agree to: Barker at [22].
4. The necessity to imply the claimed terms in Ms Saridas' employment contract arises to be considered in the context not only of the express terms of her contract, but also of terms which are recognised at common law to be implied, and of statutory obligations imposed on Oil Search.
5. That is because both the common law and legislatures have long recognised that there is a power imbalance in the employment relationship and a resulting need for employees to be protected, in relation to certain fundamental matters, including safety at work.
6. Thus, at common law there is a term of mutual trust and confidence implied in employment contracts, breach of which can amount to a constructive dismissal: Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2008) 72 NSWLR 559; [2008] NSWCA 217 at [33]. This is a term which can be affected by express agreement: Shaw v State of New South Wales [2012] NSWCA 102 at [44]-[46].
7. A duty on the part of an employer to take reasonable care for the safety of employees, including the duty to provide a safe system of work, has also been recognised and accepted as extending even to independent contractors: Stevens v Brodribb Sawmilling Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 at 31.

Ms Saridas did not accept Oil Search's repudiation of her contract

1. There is no issue that the employment came to an end after Ms Saridas wrote to Mr Lee to raise conduct concerns which she now claims involved not only a breach of her employment contract, but also resulted in her constructive dismissal.
2. What Ms Saridas told Mr Lee in her letter was that her experiences with Oil Search's CEO and CFO had affected her health and wellbeing and had led her to consider whether it was tenable for her to continue working for OiI Search. On this application it must be assumed that what she so claimed was true. Ms Saridas also sought without prejudice discussions with Mr Lee about exiting the business, pending which she proposed to take leave. She also reserved her rights.
3. Ms Saridas did not suggest, however, that Oil Search had repudiated her contract; that she had accepted its repudiation; or that she had been dismissed. Instead, consistently with the contract then remaining on foot, she pursued negotiations and reached an agreement as to what she would be paid on her resignation, how the parties would conduct themselves in future and a mutual release of claims.
4. In oral submissions it was argued, however, that the date of termination of Ms Saridas' employment specified in the deed was when her constructive dismissal took effect. I am satisfied that this cannot be accepted. But even if it were, the claim which she had for damages resulting from her constructive dismissal, which was not referred to in the deed, was also released by what was there agreed.

Repudiation of a contract

1. It must be remembered that employment is a contractual relationship under which both parties have certain rights and obligations: WorkPac Pty Ltd v Rossato (2021) 95 ALJR 681; [2021] HCA 23.
2. All contracts may be brought to an end, in a variety of ways. They include one party giving notice of termination in accordance with the terms of the contract to the other; by mutual agreement; or by repudiation by one party, which is accepted by the other. But it is not every breach of contract which is repudiatory.
3. In Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15 it was explained, there in the context of a contractual guarantee, that breach of an essential term or a breach going to the root of the contract "will of course discharge the surety from future liability if the surety elects to rescind for breach": at 555. Further, that courts will not lightly hold that a term is of such a kind: at 556-557.
4. It is when a condition that is an essential promise is broken, that the innocent party has the right to treat the contract as discharged and then recover damages. Conduct which evinces an unwillingness or an inability to render substantial performance of the contract, that is, an intention to no longer be bound by the contract, or to fulfil it only in a manner substantially inconsistent with the party's obligations, will also be repudiatory. As will conduct conveying to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115; [2007] HCA 61 at [44] referring to Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23 at 659.
5. Thus, of significance is "the common intention of the parties, expressed in the language of their contract, understood in the context of the relationship established by that contract" and the purpose it serves, which determines whether a term is "essential", so that any breach will justify termination: Koompahtoo at [48]. In some cases, breach of a non-essential term may also be repudiatory, if it will deprive the party not in default of substantially the whole benefit which it was intended that they should obtain from the contract: at [49].

Constructive dismissal

1. In the case of an employment contract, it is settled that constructive dismissal results from a repudiation: Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney. That is, conduct by an employer inconsistent with the mutual trust required for the employment relationship, which the employee is entitled to treat as a repudiation of the contract of employment: at [33].
2. On this application it must also be assumed that the conduct about which Ms Saridas complained was repudiatory. But such repudiation is not always accepted and if it is, the damages which may be recovered are limited: Baltic Shipping v Dillon (1993)176 CLR 344; [1993] HCA 4.
3. The availability of damages for breach of an implied term was explained in Shaw v State of New South Wales. There it was not established that pleaded claims for financial loss caused by breach of the implied term were so obviously untenable or groundless that there was "a high degree of certainty" that they would fail if allowed to go to trial: at [120]. But it was not suggested in that case that the claimed constructive dismissal, breach of express contractual terms and breach of statutory duty were susceptible to being struck out or summarily dismissed: at [133].
4. The position is different in this case. Strike out of the claim of constructive dismissal is pursued as being legally untenable.
5. To establish constructive dismissal it is not enough that there be repudiatory conduct by an employer, inconsistent with the mutual trust required for the employment relationship. The employment will remain on foot unless the innocent employee elects to accept the repudiation, the employee always being entitled to elect to have the contract remain on foot.
6. An employee's desire to resign, or to reach an agreement about the basis on which the employment will be brought to an end, may both provide him or her with good reason, in their particular circumstances, for not accepting an employer's repudiation. Concerns about the impact of a dismissal on his or her reputation, may also provide such reason.
7. Whether the repudiation of a contract was accepted is thus a question of fact. As a matter of logic, however, an employment contract cannot be brought to an end both as the result of an employee's acceptance of a repudiation and also by either resignation, or by mutual agreement.

Was the deed void ab initio?

1. I am also satisfied that the claim that the deed was void ab initio is also legally untenable.

The pleading

1. The further amended statement of claim seeks a declaration that the deed is void and of no effect. It also pleads by way of particulars, that cl 3, and subcll 5.3 and 5.4 of the deed are essential terms: pars 17-18. Further, that they were breached in the ways particularised at par 20. The damages claimed to result from breach of these terms are particularised at par 27.
2. Oil Search complains that they and other aspects of the further amended statement of claim were not pleaded consistently with the requirements of the Rules. They require for example, pleading of material facts and in the case of spoken words, the effect of the words spoken: rr 14.7 and 14.9.
3. It is also pleaded at par 19, that: "It was an implied term of the Deed of Release that POSR, through its officers and senior management, would advise its officers and employees of its (and their) contractual obligation not to disparage the plaintiff. Particulars (a) This requirement was essential to give business efficacy to the terms of the Deed. Without this information being communicated to officers and employees of POSR, the agreed non-disparagement would have no practical effect or value."
4. It is also pleaded at par 24 of the further amended statement of claim that: "As a consequence of the breach of the terms of the Deed of Release pleaded in paragraphs 5 to 12 above, POSR has evinced an intention not to be bound by its terms. In so evincing this intention and by breaching the essential terms of the Deed of Release, the defendant has repudiated the Deed of Release, which repudiation the plaintiff has, by bringing this action, accepted. Accordingly, the release provided by the plaintiff as to her rights in respect of all and any entitlements owing to her as a consequence of POSR's breach of the Employment Agreement is void and of no effect."
5. Paragraphs 5-12 of the further amended statement of claim, however, deal with implied terms of the employment contract, their breach and claimed resulting damage, which all preceded entry of the deed and could not conceivably evince an intention on Oil Search's part not to be bound by the deed, when it was later entered. But that is a difficulty which might be dealt with by pleading amendment, breaches of the deed being pleaded as they are in pars 20 and 27.

The claimed implied term

1. I am also satisfied that the necessity to imply the claimed implied term cannot be established, contrary as it is to express terms of the deed, including those which Ms Saridas relies on as essential terms.
2. Oil Search may have been entitled to give employees reasonable directions, consistent with cl 3 and sch 2 of the deed, "where necessary", as to how it would communicate externally or internally about Ms Saridas' resignation: Purcell v Tullett Prebon (Australia) Pty Ltd [2010] NSWCA 150 at [12]. A company like Oil Search can, after all, only act through its officers and employees. There it was observed that "An employee is bound to obey the lawful and reasonable directions of the employer": at [12].
3. The principle is that discussed in R v Darling Island Stevedoring and Lighteridge Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601; [1938] HCA 44, at 621-622: "If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable."
4. Giving such directions to relevant employees would have accorded with the requirement in subcl 5.4 of the deed, to make all reasonable endeavours to ensure that employees "who have knowledge of the terms of this Deed conduct themselves in accordance with clause 5.3". Thereby Oil Search agreed not to disparage Ms Saridas or bring her into disrepute as a result of her employment and its termination.
5. Failure to give such directions could also conceivably establish a breach of this requirement, it being "a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on [their] part to enable the other party to have the benefit of the contract.": Kyrwood v Drinkwater [2000] NSWCA 126 at [147] applying Butt v McDonald (1896) 7 QLJ 68: at 70-71.
6. But it must be remembered that by cl 10 of the deed it was also agreed that the deed was to be kept confidential. The permitted disclosures were those specified in subcl 10.2. They did not include disclosure to all of Oil Search's officers and employees, as the pleaded implied term appears to require.

The deed was not void ab initio

1. No authority could be pointed to, which suggested that a breach of a contract after it was entered, even one amounting to a repudiation, could evince an intention not to be bound, that resulting in the contract being void ab initio.
2. McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457; [1933] HCA 25 was to quite different effect. There it was explained at 476-477: "When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected. When a contract is rescinded because of matters which affect its formation, as in the case of fraud, the parties are to be rehabilitated and restored, so far as may be, to the position they occupied before the contract was made. But when a contract, which is not void or voidable at law, or liable to be set aside in equity, is dissolved at the election of one party because the other has not observed an essential condition or has committed a breach going to its root, the contract is determined so far as it is executory only and the party in default is liable for damages for its breach."
3. This approach was discussed in Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers appointed) (in liq) (2013) 251 CLR 592; [2013] HCA 51 by Keane J, although his Honour was there in dissent. It was applied in Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 at [79]. There in the context of a construction contract, it was observed that acceptance of the repudiation of that contract discharged both parties "from further performance of the Contract and that Lewence's rights under the Contract were limited to those which had then already accrued under the Contract except in so far as the Contract is properly to be interpreted as stipulating to the contrary".
4. Here there is no such contrary stipulation to be found in the deed.
5. Nor is there any suggestion of fraud or duress affecting the formation of the deed, which would have entitled Ms Saridas, as the innocent party, to dissolve the deed ab initio, that resulting in the parties' restoration to the position they were in before it was entered. All that is pleaded is subsequent breach.

The whistleblower claims

1. I am satisfied that despite this, it is arguable that Ms Saridas is also entitled to pursue some of the whistleblower claims, those which she claims occurred after the employment came to an end.

The pleaded claims

1. Ms Saridas claims to be an eligible whistleblower; Oil Search a regulated entity; Mr Lee and others eligible recipients; and her 12 November letter and other communications which she made before the termination of the employment, qualifying disclosures. Particularised conduct claimed to have been pursued in breach of Pt 9.4AAA and s 1317AD of the Corporations Act, includes conduct which occurred after the termination of her employment. She also claims that it caused her actual detriment: pars 38 and 39 of the further amended statement of claim.
2. The resulting damages are also particularised: par 40. They are claimed to fall within s 1317ADA of the Corporations Act and are pursued under ss 1317AD and 1317AE, including exemplary and aggravated damages.
3. Oil Search contends these claims are all excluded by the deed, depending as they necessarily do on her standing as an employee. Deficiencies in this aspect of the pleadings have also been raised by Oil Search, which it has been agreed are to be discussed, because it is accepted that if curable, Ms Saridas ought to be given leave to amend.
4. They include the basis on which it is claimed that Oil Search has liability for the detrimental conduct to which Ms Saridas claims to have been subjected, particularly after the termination of the employment, contrary to the terms of the deed; the causal elements required under s 1317AD; and the absence of particulars as to the losses, damages or injuries Ms Saridas claims she suffered, for which compensation orders could be made under the statutory scheme.

The construction of the release given

1. In issue is whether the whistleblower claims fall within the terms of the release given by Ms Saridas under the deed, particularly that given in subcl 6.1(a). It includes a release of claims "relating to or arising from her Employment, the Termination of Employment or any subject matter relating to or arising from the Recitals, whether known to the Parties or not known at the time this Deed is executed", on which Oil Search relies.
2. There is no question that some of the pleaded claims do fall within the terms of that release, given that they concern alleged breaches of the whistleblower provisions during the course of the employment.
3. Other pleaded whistleblower claims occurred after the termination of the employment and may also involve breaches of the deed. For example, the claims that after the deed was entered, third parties were informed by Oil Search that Ms Saridas had been let go because of inadequate performance and that she was sacked because of incompetence. Such communications by Oil Search would have involved a breach of the non-disparagement provision by which it was bound. Ms Saridas also seeks to pursue a claim that such breaches were also contrary to the whistleblower provisions.
4. These claims thus turn on the proper construction of the release Ms Saridas gave by the deed. That will have to be considered in the way explained in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7. That is, consideration of what a reasonable businessperson would have understood the terms agreed to mean in context: at [35]. That requires consideration not only of the language used, but the surrounding circumstances known to the parties and the commercial purpose or objects which they sought to secure by deed.
5. That was not addressed by the evidence which the parties led.

The terms of the release

1. The release which Ms Saridas gave by subcl 6.1 of the deed was clearly given in very wide terms. It has to be understood in light of the full and final settlement provision at cl 8, which includes statutory entitlements arising out of or in connection with her employment or its termination, with the exception of workers compensation and superannuation claims: subcl 8.1(c). There was no issue that it captured the whistleblower provisions of the Corporations Act.
2. What was released must also be understood in light of the definition of employment to mean Ms Saridas' employment from 17 August 2020 to 30 November 2020, as well as the definition of "claim". That is defined in the deed in subcl 1.1(b) to mean: "all actions, suits, applications, arbitrations, causes of action, complaints, costs, damages, debts due, demands, determinations, enquiries, Judgments, Liabilities, proceedings, sums of money and verdicts (with the exception of workers compensation claims), which arise directly from: i. the Employment: ii. any contract of employment or contract for services between the Employee and the Company or the Group; or iii. the Termination of the Employment or contract of employment or contract for services: or any claim, action, demand, cause of action or proceeding of any kind made by any third party against any member of the Group. Claims may arise at law, in equity, under a statute, under an award, enterprise agreement or under any other instrument made or approved under any law. Claims do not include claims which relate to the enforcement of this Deed."
3. The exclusion of claims relating to the enforcement of the deed is important to the resolution of this issue.

The statutory whistleblower provisions

1. The definition of "eligible whistleblower" in s 1317AAA of the Corporations Act includes an individual who "is, or has been" an employee. After the termination of the employment Ms Saridas fell into the latter part of the definition. "Detriment" in s 1317ADA includes damage to a person's reputation.
2. The deed was intended to ensure that Ms Saridas did not suffer damage to her reputation after the termination of her employment. She claims not only that she suffered such damage as the result of Oil Search's breaches of the deed, but that they also entitle her to orders for compensation under s 1317AE. It empowers the Court to order compensation as the result of detrimental conduct, and also to grant an injunction to prevent, stop or remedy such conduct, or to order an apology.
3. This power is not limited to detrimental conduct in connection with a person's position as an employee. "Detrimental conduct" is defined widely in s 1317AD to mean conduct that: "(i) causes any detriment to another person (the second person ); or (ii) constitutes the making of a threat to cause any such detriment to another person".
4. I accept that it is unarguable, given its terms, that the release which Ms Saridas gave by the deed includes the conduct pleaded in the further amended statement of claim which occurred before it was entered, which may have involved breaches of the statutory whistleblower provisions, they having arisen directly from her employment and unlike claims under the Workers Compensation Act, such claims were not excluded.
5. But I am not satisfied that it is not arguable that the release Ms Saridas gave did not extend to Oil Search's later breaches of the whistleblower provisions, after the execution of the deed and the termination of her employment, particularly those which involved breaches of the deed.
6. It was certainly not suggested that the release could preclude Ms Saridas' pursuit of breach of the non-disparagement provisions of the deed. That it also permitted her to pursue such breaches under the whistleblower provisions, seems to me to be an arguable construction of the deed, given the definition of "claim".
7. Given the terms of the deed earlier referred to, the conclusion that on its proper construction, it not only released claims which Ms Saridas had against Oil Search under the whistleblower provisions as to past conduct, but also any further breaches of the whistleblower provisions in which Oil Search might engage in future, after the termination of her employment, does not seem to be inevitable. Particularly given that the conduct about which Ms Saridas complains is claimed to have involved breaches of what was agreed by the deed and pursued at a time when she was no longer in Oil Search's employ, but when Oil Search was bound not to disparage her, so as to prevent damage to her reputation.

Orders

1. The conclusions which I have reached and the other difficulties with the proposed further amended statement of claim, which the parties have agreed need to be discussed further, precludes leave to file the proposed pleading being granted.
2. For the reasons given, I am satisfied that the claims presently advanced at pars 5-15 and 26 of the amended statement of claim must be dismissed.
3. The parties are directed to confer on the outstanding objections to the further amended statement of claim, the motion seeking to have the notice to produce set aside and costs, in light of the conclusions which I have reached. They should also confer about the orders which should be made to reflect my conclusions and the further directions and orders which should now be given as to the preparation of the matter for hearing. The proposed orders and directions should then be filed.
4. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event. In this case that appears to be an order that Ms Saridas must bear Oil Search's costs of the motion, it having been largely successful on the case it advanced. In the event of any disagreement, the parties should file short written submissions as to the costs orders they seek.
5. The matter is adjourned to 9.30 am on 25 July for further directions.

Amendments 01 August 2022 - "Ltd" added to case name order 5 - addition of "The usual order is" para 7(2) addition of "the" between rendering and deed. 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: 01 August 2022