Westpac Banking Corporation v Newey

Introduction 1This is an application by the plaintiff to enforce a contractual restraint against the firm of Gillis Delaney. The restraint is contained in two deeds entered into in April and May 2011 by the partners of the firm, as well as by a consultant to the firm whose name is Mr Collinge. 2The plaintiff seeks a declaration that, on its proper construction, the reference to 'Westpac' in Clause 1(d) of each deed should be taken to mean Westpac or any of its related bodies corporate within the meaning of Section 50 of the Corporations Act 2001 (Cth). In substance, it contends that 'Westpac' should be read as 'Westpac group'. In the alternative, it seeks an order for rectification to achieve the same effect. 3Clause 1 is in the following terms: 1 Obligation not to act Each of the partners of Gillis Delaney and David Collinge agree that he or she: (a) will not bring; or (b) will not otherwise aid, abet, counsel or procure the bringing of, any claim against Westpac or any of its related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) on behalf of: (c) any person formerly employed by St George Bank Limited (St George) who at any time worked in what was known as the Institutional & Business Banking Division, and prior to about 1999 the Treasury & Capital Markets Division; or (d) any former employee of St George whose employment was or is terminated by Westpac at any time up to the date on which the last of the claims brought by an Applicant or Prospective Applicant is resolved by settlement or final judgment (including in respect of any appeal), other than the Applicants and the Prospective Applicants. (emphasis added) 4'Westpac' is a defined term by virtue of the way it is described as a party to the deed. According to that description, 'Westpac' is shorthand for 'Westpac Banking Corporation'. It follows, submitted Gillis Delaney, that the operation of the restraint in paragraph (d) of Clause 1 is limited to those former employees of St George whose employment was terminated by Westpac, not to those whose employment was terminated by St George. 5The distinction between St George and Westpac arises because from 1 December 2008 until 28 February 2010, St George was a wholly owned subsidiary of Westpac. From 1 March 2010, St George ceased to exist as a separate legal entity and the whole of its business was transferred to Westpac. Former employees of St George brought and threatened claims against Westpac. The employment of most of those claimants was terminated by St George. After 1 March 2010, some were terminated by Westpac.

General Principle 6Gillis Delaney contended that, having regard to the wording of 'Westpac', in the description of the 'Parties' to each deed, the words of Clause 1 are unambiguous and should be given literal effect. This would mean that the scope of the restraint in paragraph (d) is limited to those former St George employees whose employment was terminated by Westpac after 1 March 2010 and not to those whose employment was terminated by St George before that date. 7The general principles that govern the construction of commercial documents are well established. The instrument must, of course, be given a business-like interpretation. However it must always be recognised that ultimately, the ability of courts to do so is constrained by the actual language used by the parties. Unless there is some ambiguity or it is clear that something has gone wrong with the language or unless the language gives rise to an absurd operation, the chosen words are paramount, especially where those words have been selected by sophisticated and well-resourced commercial parties. 8The cardinal rule that applies in such a case is reflected in the well-known statement of Gibbs J in Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109: If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. 9In Total Destination Marketing Pty Ltd v Horizons Snowy Mountains Pty Ltd [2011] NSWSC 1349 at [12], I added my own observations as follows: Contractual language that is unambiguous should be applied in accordance with its terms and not by reference to subsequent attempts to impose a qualification which is not dictated by the language, by the syntax and by the linguistic context. 10See also the comments made in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604, a special leave application, and the article by the Hon J J Spigelman AC, 'From Text to Context: Contemporary Contractual Interpretation', (2007) 81 ALJ 322.

Ambiguity 11The real issue in this case is whether there is any ambiguity. At one level, the language of Clause 1, and of paragraph (d) in particular, is capable of operating in accordance with its terms. Taken literally, and giving effect to the description of 'Westpac' in the names of the parties, the persons who are the subject of paragraph (d) are those in the class of former employees of St George 'whose employment was or is terminated by Westpac'. Treated in isolation, as a bare collocation of words, there does not appear to be anything about the language which is obviously inappropriate or necessarily lacking in harmony; nothing which gives rise to anything more than a suspicion that something else may have been intended. 12It is true, of course, that words are only symbols. And what I have said is only true to the extent that the description of 'Westpac' in the names of the parties, is given primacy. As I pointed out in Seven Network (Operations) Ltd v Warburton (No 2) [2011] NSWSC 386; (2011) 206 IR 450 at [24]: [words] can only "convey meaning according to the circumstances in which they are used": Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 401 (Brennan J). That is why there is an actual and conceptual difference between the meaning of words - "a matter of dictionaries and grammar" - and the meaning of a contractual document - "what the parties using those words against the relevant background would reasonably have understood [them] to mean": Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-3 (Lord Hoffman); Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 at [11]. The wisdom of Learned Hand J's mid-century warning "not to make a fortress out of the dictionary" remains as forceful today as it was when first uttered: Cabell v Markham 148 F.2d 737 at 739. See also Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 at [10]. 13If there really were nothing ambiguous in the language of the deeds, principle and authority would compel me to follow the actual words faithfully; to construe 'Westpac' in paragraph (d) in the same way as it appears in the description of the parties. In fact there is an anomaly in the chosen language of the deeds, one which reveals a distinctly discordant note, and points to an ambiguity in the text. The resolution of that ambiguity indicates that it is more probable that where 'Westpac' appears in paragraph (d), it was objectively intended to be read in the same way as it appears in the chapeau that introduces paragraphs (c) and (d), namely as 'Westpac or any of its related bodies corporate'. 14Excluded from the operation of paragraphs (c) and (d) are 'the Applicants' and 'the Prospective Applicants'. Each is a defined expression. The Prospective Applicants include, among others, a former St George employee named Lucky Poulos. Lucky Poulos was not covered by paragraph (c). Nor was he covered by paragraph (d) - if it were read literally. He did not work in the Institutional and Business Banking Division for the purpose of paragraph (c). And his employment was terminated in September 2009 by St George, not by Westpac. He only fell within paragraph (d) if 'Westpac' in that paragraph were construed to mean 'Westpac group' or 'Westpac or any of its related bodies corporate'. Unless 'Westpac' were read broadly, there was no reason to exclude him. Given the undoubted fact of the status of Lucky Poulos, the inclusion of his name in the definition of 'Prospective Applicants' reveals an anomaly. 15Gillis Delaney contended that the inclusion of Lucky Poulos in the definition of 'Prospective Applicants' did not assist the construction of the clause; that it was a harmless superfluity; an incongruity which could safely be ignored. They submitted that it was to be explained by Mr Gillis' desire to ensure that the restraint to which the firm was prepared to agree, excluded the four named Prospective Applicants - for whom Gillis Delaney was already acting. Mr Gillis said that he did not focus on whether Lucky Poulos fell within the class described in paragraph (c) or that described in paragraph (d). He just wanted him excluded. 16I did not find Mr Gillis' explanation convincing. He is a sophisticated and experienced commercial litigator. I am quite certain that he subjected the language of the deeds to careful scrutiny. If I accept the construction for which Gillis Delaney contends, the inclusion of Lucky Poulos in the definition of 'Prospective Applicants' was inappropriate and unnecessary. I do not think I should construe Clause 1 on a basis that assumes oversight and sloppiness by Mr Gillis. 17The definition of 'Prospective Applicants' so as to include Lucky Poulos strikes a jarring note; suggesting that something has gone wrong with the language; providing an indicator that something different was intended. I am satisfied that there is an ambiguity about the meaning of 'Westpac' in paragraph (d); that having regard to its lexical, grammatical and syntactical context, and the known objective fact of the status of Lucky Poulos, it should be construed to mean 'Westpac or any of its related bodies corporate'. Only when that is done, does the whole of Clause 1 operate harmoniously, giving full effect to each of its components, including the exclusions embodied in the words 'Applicants' and 'Prospective Applicants'. 18The resolution of the ambiguity in this way, means that the definition of 'Westpac' in the description of the parties to the deed, should give way to the textual context and to the general intent which is discernible from the whole of the instrument, in particular from the definition of 'Prospective Applicants'. There is no rule of law or construction that requires a definition to be applied uniformly. As Fullager J said in Halford v Price [1960] HCA 38; (1960) 105 CLR 23 at 33: Neither in the case of a statute nor in the case of a contract or any other instrument is there any rule of law or of construction which requires us to apply a definition where to do so would be at variance with a context or with a general intent to be gathered from the whole of the instrument.

Prior Negotiations 19The prior negotiations of the parties are in a different category to a known fact such as the status of Lucky Poulos. The prior negotiations are relevant to the rectification claim but not to the issue of construction. The reason why is amply explained in the well-known exposition by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352: Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification. 20The prior negotiations effectively commenced with the letter dated 10 December 2010 from Westpac's solicitors, Allens. It set out the proposed restraint against Gillis Delaney in 'Condition D'. 'Westpac' was defined to mean 'the Westpac Group'. It was clear from the letter that the proposed restraint would prevent Gillis Delaney from bringing any claim on behalf of any former St George employee whose employment was terminated by either St George or Westpac. 21Gillis Delaney replied on the same day, purporting to accept the settlement offer but without Condition D, which was said to give rise to questions 'of potential breaches of the Trade Practices Act, 1974 (restraint of trade) and an attempt to induce a breach of contract'. 22On 14 December 2010, Allens replied indicating that it was not open to Gillis Delaney to treat Condition D as a nullity and to purport to accept an offer that was never made. In addition, Allens explained the justification for Condition D as follows: Condition D represents a reasonable attempt by Westpac to protect the confidentiality of commercially sensitive information as to the basis of which the proceedings have settled (if that were to occur). The restraint in condition D represents a legitimate means of achieving this objective and is one that is frequently utilised in the settlement of class actions where the circumstances are analogous to this situation. 23Subsequently there was correspondence between Gillis Delaney and Allens concerning an application to be brought by Gillis Delaney on behalf of its clients seeking a declaration that a binding settlement agreement had been reached between Westpac and its clients. 24Eventually, on 17 February 2011, Gillis Delaney advised Allens that the firm and each of the partners of Gillis Delaney were willing to enter into an undertaking as set out in Condition D, subject to 4 additional employees, namely Elvio Bechelli, Lucky Poulos, Paul Smith and Wayne Fowler being included and described as the 'Prospective Applicants'. The Prospective Applicants were former St George employees for whom Gillis Delaney held instructions to act but who had not yet commenced proceedings. 25On 25 February 2011, Allens responded with Westpac's final settlement offer. That letter defined 'Westpac' to mean 'Westpac Group' in Condition C and contained a slightly modified version of Condition D to take into account the Prospective Applicants (changes underlined): Each of the partners of Gillis Delaney undertake not to bring or otherwise aid, abet, counsel or procure the bringing of any claim against any member of Westpac on behalf of: (i) any person formerly employed by St George Bank Limited (St George) who at any time worked in what was known as the Institutional & Business Banking Division, and prior to about 1999 the Treasury & Capital Markets Division; or (ii) any former employee of St George whose employment was or is terminated by Westpac at any time up to the date on which the last of the claims listed in your letter dated 17 November 2010 is resolved by settlement of final judgment (including in respect of any appeal), other than the current applicants who are listed in your letter dated 17 November 2010 and Elvio Bechelli, Lucky Poulos, Paul Smith and Wayne Fowler. Our client will require the partners of Gillis Delaney to enter into a deed which records this agreement. 26Since the 10 December 2010 letter, 'Westpac' had been defined to mean the 'Westpac Group'. Between 10 December and 25 February, it was clear that the proposed restraint would prevent Gillis Delaney bringing any claim on behalf of former St George employees whose employment was terminated by either St George or Westpac. In correspondence on 2 March and 4 March 2011, Gillis Delaney accepted Westpac's offer on the terms which the letter of 25 February stipulated. 27It seems clear enough that there was a mistake in the drafting of the deeds. The terms of the deeds were, in my view, intended to reflect the acceptance by Gillis Delaney of the terms of the 25 February letter. There were no further material negotiations and there is no suggestion of a different bargain having been reached, other than by reference to the bare words of the executed deeds. The substance of the parties' agreement immediately prior to the execution of the deeds, was that Gillis Delaney would be restrained from bringing claims on behalf of former St George employees whose employment was terminated by either St George or Westpac.

Rectification 28Westpac's alternative claim for rectification relies primarily on the antecedent 'agreement' or consensus revealed in the prior negotiations, in particular by the acceptance by Gillis Delaney of the terms of the letter dated 25 February 2011 from Allens. It was submitted that the language of the 25 February letter, as well as that of the drafts that preceded it, demonstrates the mutual subjective intention of both parties - that the restraint on Gillis Delaney was intended to extend to former St George employees whose employment was terminated by St George, and was not intended to be confined to those who were terminated by Westpac. 29However, in answer to this claim, and notwithstanding the contemporaneous evidence constituted by the prior correspondence, Mr Gillis and Mr Collinge gave evidence at the hearing that they believed that the class of persons on whose behalf the firm was undertaking not to act, was limited to former employees of St George whose employment was terminated by Westpac. They said that they never thought that they were undertaking not to bring claims on behalf of former St George employees whose employment was terminated by St George. I am not able to accept this. 30Obviously, the resolution of a rectification suit 'involves finding an identical corresponding contractual intention on each side ...': Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 at 473 (Street CJ in Eq) adopted and approved by Menzies J in Hooker Town Developments Pty Ltd v Director of War Service Homes (1973) 47 ALJR 320 at 323-4. But the nature of the best evidence of any such 'identical corresponding contractual intention', will vary depending on the facts of individual cases. Where, as in this case, the parties have set out their consensus in writing in an antecedent exchange of communications, the best evidence of their concurrent subjective intentions will usually be found in those communications, not in the uncorroborated assertions, opinions and hypotheses of interested witnesses at the hearing. In this case, the evidence contained in the prior communications was clear and convincing. 31The careful and deliberate language that was used in the 25 February letter and in the preceding drafts was solemnly agreed to by Gillis Delaney. It stated expressly and with abundant clarity that 'Westpac' meant the Westpac Group. The language was the product of negotiations that commenced in December 2010 and concluded in late February 2011. Mr Gillis and Mr Collinge are experienced solicitors. They had a vested economic interest in the subject matter of the proposed restraint against Gillis Delaney. I do not think it is likely that they could have failed to appreciate what was explicitly spelt out in the Allens letters dated 10 December 2010 and 25 February 2011. 32I doubt whether there is any more reliable evidence of the mutual common intention of the parties than their actual agreement to such explicit language. While the ambiguity in the language of Clause 1(d) of the deeds gives rise to uncertainty, the language of the Allens letter dated 25 February 2011 does not. No reasonable reader of that letter could have failed to appreciate that the proposed restraint on Gillis Delaney was intended to extend to former St George employees whose employment was terminated by St George. 33Mr Gillis and Mr Collinge were not only reasonable persons, they were intelligent, interested parties who had every incentive to have a clear understanding of the scope of the proposed restraint on their firm. Acceptance by me of the evidence they gave at the hearing, would necessitate the conclusion that, when agreeing in early March to the terms of the 25 February letter, they were obtuse or distracted or for some other reason unable to read and comprehend simple English. I do not think this is likely. And I do not think the evidence of their subjective belief was plausible. I am naturally reluctant to conclude that they knowingly gave false evidence but the question need not be resolved. It is more likely that Mr Gillis and Mr Collinge had convinced themselves in the sense explained by McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319. 34What matters is that the objective contemporaneous evidence of the antecedent consensus is the most reliable touchstone of the true position. It has the significant advantage of not being retrospective or self-serving. It is in my view more probable and more reliable than the choice offered by the unconvincing accounts that Mr Gillis and Mr Collinge put forward at the hearing - more than two years after the events in question.

Further Defences to Rectification 35That does not dispose of the matter however. Gillis Delaney raised two additional questions of construction and several further matters in opposition to the rectification claim. The first issue is straight-forward. The restraint on Gillis Delaney imposed by Clause 1 is permanent. It is an exercise in artificiality to suggest that the restraint in paragraph (d) should be limited in its operation to 'the date on which the last of the claims brought by an Applicant or Prospective Applicant is resolved by settlement or final judgment'. 36There is no evident commercial sense in limiting the operation of the restraint in that way. And it would emasculate the syntax of the clause. It is conventional for adverbial phrases and clauses to follow after the verb which they modify, or as close to it as possible. This orthodox syntax promotes clarity and avoids ambiguity. Thus in this case, the clause beginning 'any time up to ...' should be taken naturally to modify the verb in the words 'is terminated by ...'. It cannot reasonably be read as if it imposes a temporal limitation on the actions specified in paragraphs (a) and (b). 37The second issue relates to the form of the proposed order for rectification. Gillis Delaney submitted that the court should not order rectification in that form, because to do so would create an ambiguity. The point arises because the insertion of the words 'or related bodies corporate' in paragraph (d), is said to lead to a temporal uncertainty. That is because the words could refer to Westpac's related bodies corporate at the time of termination of employment or at the time of execution of the deeds. As I have explained, by the time the deeds were executed, St George had ceased to exist and was no longer one of Westpac's related bodies corporate. 38Although a dispute about the construction of a rectified instrument is not common, it is clear that it can arise. For example, one of the earliest cases of rectification, Motteux v The London Assurance Co (1739) 1 Atk 545; 26 ER 343, involved the rectification of a marine insurance policy by Lord Hardwicke followed by a trial at law of various issues concerning the construction of the rectified policy. 39Gillis Delaney's submission on this issue confuses the nature of the remedy of rectification. Rectification merely reforms the language of the instrument where it is necessary to do so because the words have been written down incorrectly: Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd [1953] 2 QB 450 at 461 (Denning LJ). Many contracts are ambiguous. Rectification is not concerned with curing ambiguity. Its object is different and more prosaic - limited to correcting the language of the instrument. 40In any event, Gillis Delaney's submission is wrong. The restraint in Clause 1(d), once rectified, is capable of only one reasonable construction. There is no reason to construe the reference to related bodies corporation in Clause 1(d) as applying only to the time of execution of the deeds, when the expression was 'terminated' is obviously a reference to the past. 41The third issue relates to whether Mr Johnston, who was called on behalf of Westpac, had sufficient authority to give evidence of the actual intention of Westpac for the purpose of its rectification claim. For the reasons explained in paragraph [30], I have not found it necessary to resolve this question. I did not find the subjective evidence at the hearing, from both sides, as helpful or as probative as the inference to be drawn from the contemporaneous correspondence. The latter was not capable of being influenced by hindsight or of being self-serving. It was more reliable. I have reached my conclusion without considering Mr Johnston's evidence and do not need to resolve his authority. For the same reason, I do not need to resolve the question of whether the intention of Mr Gillis should be imputed to his partners. 42The fourth issue relates to the effect of the entire agreement clause set out in each deed. I do not think that the presence of such a clause is determinative of either the construction issue or the rectification issue. It is not a bar to rectification (Mcdonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152) although in certain cases it may be a factor. I doubt that an entire agreement clause does more than indicate that the parties intended, as they usually do, that their agreement is to be found in the language they have chosen, and not outside of it. But that is not an answer to a rectification claim - which involves a search for an underlying intention that is not accurately reflected in the chosen words. 43The point was illustrated by Mahoney JA in Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 332-3: Mr Mason QC pressed the submission that the intention of the company was to execute the deed as it was drafted and that that intention was achieved. But that, in my opinion, does not give proper effect to the principle upon which rectification is based and the 'intention' which is the foundation of it. That which subjectively the parties sought to achieve and thought they achieved by the execution of the document was that to which I have referred. The manner in which or the formula of words by which those two things were to be achieved were not things to which, in the relevant subjective sense, the company's attention was directed. Upon that basis the deed was apt for rectification. 44Nor does an entire agreement clause prevent the identification and resolution of an ambiguity. The usual purpose of such a clause is to prevent reliance on representations, collateral promises and implied terms. If an ambiguity exists, an entire agreement clause cannot rationally prevent resort to the context and mutually known surrounding circumstances to resolve it. I do not accept the view that the inclusion of an entire agreement clause is a means of 'contracting out of contextualism': Mitchell C, 'Entire Agreement Clauses: Contracting out of Contexualism' (2006) 22 J Con L 222; Peden E and Carter J W, 'Entire Agreement - And Similar - Clauses' (2006) 22 J Con L 1. 45The fifth issue relates to the effect of the proposed injunction - which seeks to restrain Gillis Delaney from acting for Mr Pastega and Ms Colley in proceedings in the Local Court against Westpac. This is a discretionary matter. Mr Pastega and Ms Colley may be innocent third parties but they are also defendants in these proceedings and have filed submitting appearances. There is no evidence from them of hardship and no reason to suppose any material prejudice from having to obtain fresh representation. There is no principle of law that prevents an injunction being granted in these circumstances and no sufficient discretionary reason why I should not do so.

Commercial Object 46Finally, to return to the primary issue of construction, I should add that there was competing subjective evidence of the commercial object of Clause 1(d). But it is neither necessary nor desirable to attempt to resolve it. For what it is worth, Mr Gillis said that he considered the purpose of the restraint to be an attempt to protect the legal position and reputation of Westpac in relation to actions taken by it in terminating the employment of former St George employees. This was an unconvincing hypothesis which had no support in the contemporaneous communications between the parties. But it does not matter. 47It is not the role of the court, in construing the language of a contract, to engage in speculative and uninformed guesswork as to its commercial purpose as a means of working backwards to reach its proper construction. The unresolved and divergent evidence of what each party thought they might have been achieving is of no assistance. Attention must be given to the language used by the parties, in the context of the whole of the deed and, where appropriate, the mutually known background circumstances.

Orders 48I therefore make the following declarations and orders: (a)I declare that the word 'Westpac' in Clause 1(d) of the deed between the plaintiff and the first to eighth defendants executed in April 2011 should be construed to read 'Westpac or any of its related bodies corporate'; (b)I declare that the word 'Westpac' in Clause 1(d) of the deed between the plaintiff and the ninth and tenth defendants dated 11 May 2011 should be construed to read 'Westpac or any of its related bodies corporate'; (c)I order that the first defendant be restrained from continuing to act in the proceedings commenced in the Local Court of New South Wales against the plaintiff by: (i)Michael Pastega, being Local Court Proceedings No 2013/88125; and (ii)Carolyn Judith Colley, being Local Court Proceedings No 2013/88131; and from otherwise aiding, abetting, counselling or procuring the bringing of those proceedings. (d)I order the first to tenth defendants to pay the plaintiff's costs of the proceedings. 49I make clear that, if I had not been satisfied that it was appropriate to make the declarations set out in paragraphs (a) and (b) above, I would have ordered that Clause 1(d) of each deed be rectified by inserting the words 'or any of its related bodies corporate' after the word 'Westpac'. 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: 08 July 2013