Wong v State Street Global Advisors Australia Limited & Anor

Wong v State Street Global Advisors Australia Limited & Anor - [2004] NSWIRComm 212 - NSWIRComm 2000 case summary — Zoe

[22]

12 The orders of variation sought were: 1. An order varying in whole or in part either ab initio or from some other time (except to the extent to which moneys have been paid to the Applicant) the Contract made between the Applicant, the First Respondent, and the Second Respondent under which the Applicant performed work in the financial services industry directly for the First Respondent, and indirectly for the Second Respondent ("Contract"). 2. Further, an order varying the Contract, from its commencement or from some other time by incorporating within it: (a) the 1997 Equity Incentive Plan; (b) the 2000 Equity Incentive Plan, provided that paragraph (g) on page 7 thereof shall be excluded. 3. Further, and in addition, an order varying the Contract as varied pursuant to A2 above, so as to incorporate terms to the following effect: (a) On termination of the Contract for any reason as set out in 3(c) below: (i) the First Respondent will give to the Applicant 12 months' notice of termination of the contract of employment ('Notice Period'), or make payment in lieu of the Notice Period; (ii) the First Respondent will pay to the Applicant a pro rata bonus up to the time of termination calculated on the basis of a full year's bonus of 70% of the Applicant's base salary at termination; (iii) the First Respondent will pay to the Applicant a bonus in respect of the Notice Period in the amount of 70% of the Applicant's base salary at termination; (iv) notwithstanding any provision in the 1997 Equity Incentive Plan or the 2000 Equity Incentive Plan to the contrary, the First Respondent, or alternatively the Second Respondent, will pay to the Applicant the value of all shares and options that would have vested or become exercisable during the Notice Period, calculated by applying the share price and exchange rate as at such date or dates; (v) the First Respondent will pay to the Applicant, the Applicant's annual leave and long service leave entitlement, accrued as at the expiration of the Notice Period and calculated in the case of annual leave by reference to 3(b) below and in the case of long service leave on the Applicant's base salary; (b) The payments referred to in paragraph 3(a)(i) will be calculated by reference to the Applicant's total salary package at termination; (c) For the purposes of the Contract: (i) the applicant's position being made redundant; or (ii) any substantial alteration to the terms of the Contract including remuneration and/or duties to be performed or persons or positions to which the Applicant reports or persons or positions reporting to the Applicant, will unless accepted in writing by the Applicant, constitute a termination of the Contract by the First Respondent. 4. An order that the First Respondent pay the Applicant the sums of money set out in Section D paragraphs 1 - 5, below. 5. An order that the Second Respondent or alternatively the First Respondent pay the Applicant the value of the shares and options in D 6 below. 6. An order that the First Respondent and/or the Second Respondent pay the Applicant interest at such a rate as the Commission considers appropriate on the amount or amounts awarded to the Applicant from such day as the Commission considers appropriate. 7. An order that the Respondents pay the Applicant's costs of these proceedings. 8. Such further or other orders as the Commission considers appropriate or just in the circumstances.

[136]

97 The parties each relied upon a judgment given by Peterson J in Scanruby Pty Ltd v Caltex Petroleum Pty Ltd and Anor [2000] NSWIRComm 89. There his Honour considered the proper construction of various provisions of the Listening Devices Act, which also here arose for consideration. The question being whether the tape-recording offended the provisions of s5(1) of that Act, or rather fell within the provisions of s5(3). Section 5 provides: 5 Prohibition on use of listening devices (1) A person shall not use, or cause to be used, a listening device: (a) to record or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party. (2) Subsection (1) does not apply to: (a) the use of a listening device pursuant to a warrant granted under Part 4, (b) the use of a listening device pursuant to an authority granted by or under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth, (c) the use of a listening device to obtain evidence or information in connection with: (i) an imminent threat of serious violence to persons or of substantial damage to property, or (ii) a serious narcotics offence, if it is necessary to use the device immediately to obtain that evidence or information, (d) the unintentional hearing of a private conversation by means of a listening device, or (e) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the police force in connection with the commission of an offence by a person suspected of having committed the offence. (3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if: (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and: (i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation. (4) Where a listening device is used in the circumstances referred to in subsection (2) (c) and its use would, but for subsection (2) (c), be contrary to this section, the person who used the device shall: (a) forthwith cause to be served on the Attorney General or a prescribed officer notice of that fact, and (b) within 7 days after its use, furnish a report, in writing, to the Attorney General: (i) containing particulars of the circumstances in which the device was used, and (ii) without affecting the generality of subparagraph (i), containing the same particulars, and specifying the same matters, as are required by section 19 (1) (b) in relation to the use of a listening device pursuant to a warrant granted under Part 4.

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