OAMPS Insurance Brokers Limited v Shackcloth [2008] NTSC 29

PARTIES:	OAMPS INSURANCE BROKERS LIMITED
	(ACN 005 543 920)

	v

	SHACKCLOTH, BERNIE

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	111 of 2007 (20728645)

DELIVERED:	30 July 2008

HEARING DATES:	3-7 December 2007, 10-12 December 2007 and 17 and 19 December 2007

JUDGMENT OF:	SOUTHWOOD J

CATCHWORDS:

CONTRACT – Employment – restraint of trade - declaration and injunction sought to enforce restraint of trade clause – reasonableness of the covenant – period of restraint – claim dismissed

EMPLOYMENT LAW – Claim for wrongful dismissal – claim dismissed

Adamson v NSW Rugby League Ltd (1991) 31 FCR 242;
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66;
Brightman v Lamson Paragon Ltd (1914) 18 CLR 331;
Buckley v Tutty (1971) 125 CLR 353;
Heron v The Port Huon Fruitgrowers’ Co-operative Association Ltd (1922) 30 CLR 315 at 324;
North v Television Corp Ltd (1976) 11 ALR 599;
Laws v London Chronicle (Indicator Newspapers) Pty Ltd [1959] 2 All ER 285;
Lindner v Murdock’s Garage (1950) 83 CLR 628;
Marquett v Walsh (1929) 29 SR (NSW) 298;

REPRESENTATION:

Counsel:
	Plaintiff:	J Kelly
	Defendant:	D Robinson SC

Solicitors:
	Plaintiff:	Cridlands
	Defendant:	Clayton Utz

Judgment category classification:	B
Judgment ID Number:	Sou0809
Number of pages:	40
IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

OAMPS Insurance Brokers Limited v Shackcloth [2008] NTSC 29
No 111 of 2007 (20728645)

	BETWEEN:

	OAMPS INSURANCE BROKERS LIMITED
	(ACN 005 543 920)
	Plaintiff

	AND:

	BERNIE SHACKCLOTH
	Defendant

CORAM:	SOUTHWOOD J

REASONS FOR JUDGMENT

(Delivered 30 July 2008)

Introduction
[1]	The plaintiff is a firm of insurance brokers.  Until the plaintiff summarily dismissed the defendant on 14 September 2007 for serious misconduct, the defendant was an employee of the plaintiff.  He was employed in Darwin as a senior account executive and he was responsible for servicing the insurance needs of a portfolio of the plaintiff’s clients.  After his employment was terminated by the plaintiff, the defendant obtained employment with BM Insurance Brokers in Darwin.  BM Insurance Brokers is in competition with the plaintiff. 
[2]	The plaintiff seeks a declaration that the defendant has breached a restraint of trade clause that was a term of his contract of employment with the plaintiff; and injunctions restraining the defendant from approaching, canvassing, soliciting or endeavouring to entice away from the plaintiff, clients of the plaintiff, with whom the defendant had dealings in the course of his last 12 months of his employment with the plaintiff, and from accepting any approach or proposal whether direct of indirect from any person who, to the defendant’s knowledge, was a client of the plaintiff.
[3]	The defendant has filed a counterclaim in this proceeding.  He seeks damages for the wrongful dismissal from his employment with the plaintiff.  The defendant says that he was not guilty of serious misconduct.
[4]	During the course of the hearing I ordered that liability was to be tried separately from damages and the hearing proceeded on that basis.
Application to further amend the statement of claim
[5]	At the very end of the hearing an application was made by the plaintiff to amend the statement of claim so that, alternatively, the plaintiff could rely on clause 8(d) of the letter dated 3 April 2003 which contained the terms of the defendant’s employment with the plaintiff.  I have decided to allow the application to further amend the statement of claim.  No prejudice flows to the defendant from the amendment and in any event, given my findings below, no consequence flows from the amendment other than it was unnecessary to consider the defendant’s argument about the construction of clause 8 of the letter dated 3 April 2003.
The issues
[6]	The principal issues in the proceeding are as follows.  First, was the restraint of trade clause reasonable?  Secondly, was the defendant wrongfully dismissed from his employment with the plaintiff?
[7]	There is also an issue as to whether the defendant was misled by the plaintiff about the terms of his employment and whether the restraint of trade clause in the defendant’s contract of employment with the plaintiff should not be enforced under the provisions of s 87 of the Trade Practices Act (Cth).
The defendant’s credit
[8]	Before setting out my findings of fact it is necessary to state what is my assessment of the evidence of the defendant.  I found the defendant to be a wholly unreliable witness.  He was evasive, defensive and dissembling.  I disbelieve his evidence about what occurred at the 2007 Carlton Football Club presentation dinner which was held at the Crown Casino in Melbourne on 7 September 2007.  Having done so I have found it difficult to accept most of his evidence.
[9]	I accept the plaintiff’s submission that the defendant’s unreliability is demonstrated by what occurred in relation to the purported “file notes” of telephone conversations that the defendant had with the plaintiff’s clients after his employment was terminated.  The defendant produced to his solicitors a number of documents which had the appearance of file notes of telephone conversations.  Each note related to a separate date and a separate person and each had a date at the top right hand corner.  There can be little doubt that the defendant intended these to be taken for contemporaneous file notes to give credence to the evidence he intended to give concerning how various ex clients of the plaintiff came to take their business to BM Insurance Brokers who subsequently employed the defendant.  
[10]	When asked about the file notes in cross examination the defendant said they were made after this proceeding commenced for the purpose of this proceeding – essentially to “prompt” himself as to which of the plaintiff’s clients telephoned him and when and how the client had come to hear of BM Insurance Brokers.  He gave evidence that he had told his solicitors of the purpose for which he had created the file notes.  This evidence lacked the ring of truth as, if he had done so, his solicitors would have claimed privilege over the documents rather than discovering them as file notes.  Further, his evidence in court was inconsistent with the fact that he swore an affidavit of documents which described the documents as “file notes” bearing a nominated date.
[11]	The information recorded on the “file notes” is wrong almost from beginning to end.  In most cases where the file notes record that a particular client telephoned the defendant’s mobile telephone on a given date, there is no record of a call from any of that client’s numbers recorded in either the defendant’s or the plaintiff’s telephone records, which were tendered in evidence, on the given date or anywhere near that date.  In many cases, the telephone records record that the first phone contact between the client and the defendant was as an outgoing call from the defendant’s mobile telephone.
[12]	In re-examination, the defendant was asked to suggest an explanation for the fact that he gave evidence that certain people called him on his mobile telephone when there was no record of it in Telstra’s records.  He said he had his home phone number and his office number both diverted to his mobile number and suggested that either of those numbers could have been called and he would not have been able to distinguish the number called.  In response, the plaintiff subpoenaed the Telstra records for those two numbers which reveal that: the home phone number was installed on 24 September 2007; and the office phone was installed on 4 October 2007 and the diversion put in place on 6 October when many of the file notes he was asked about were dated in September; and in any case, the Telstra records show no calls from the known numbers for those clients on or around the claimed dates.
The facts about the defendant’s employment and dismissal
[13]	I find the following facts about the defendant’s employment and dismissal.
[14]	The plaintiff is the largest insurance broker in the Northern Territory.  It is one of the larger insurance broking firms in Australia.  It predominantly services Australian businesses in the small to medium enterprise insurance market.
[15]	The defendant is qualified at Tier 2 Australia and New Zealand Institute of Insurance and Finance and he holds a Certificate IV in General Insurance which means that he can give advice about general insurance.  He has worked in the insurance industry since 1995.  Before 1 April 2003, the defendant was employed by All Financial Services Pty Ltd as a General Insurance Manager in Darwin.  General insurance involves non-life insurance contracts.
[16]	During 2003 the plaintiff acquired the insurance business of All Financial Services Pty Ltd.  It was a term of the plaintiff’s acquisition of the business of All Financial Services Pty Ltd that the vendors would use their best endeavours to encourage their staff to become employees of the plaintiff upon the completion of the purchase of All Financial Services Pty Ltd’s insurance business.  The members of staff employed by All Financial Services Pty Ltd were told that they would be no worse off if they became employees of the plaintiff.  They were to continue in the same position under the same remuneration packages.
[17]	 On 1 April 2003 the defendant became an employee of the plaintiff.  He was employed as a General Insurance Manager and he continued to service many of the same clients who he had serviced while he was employed by All Financial Services Pty Ltd.  His portfolio of clients included a number of nurseries, a number of earth moving and building contractors and a variety of other small to medium enterprises in Darwin.  
[18]	The express terms of the defendant’s employment by the plaintiff were contained in a letter to the defendant from Mr Rob Romano dated 3 April 2003 and a document headed, “ADDITIONAL CONDITIONS FOR BERNIE SHACKCLOTH IN RESPECT TO RENUMERATION (sic)”.  The letter was countersigned by the defendant after he received it. 
[19]	The terms of the defendant’s employment that were contained in the letter dated 3 April 2003 included the following terms:
7. 	You hereby undertake to treat as confidential and not disclose, (without the prior consent in writing of the company) to any third party any information belonging to the company and acquired by you in the course of your employment provided that this undertaking shall not apply to any information that:
(a)	was already known to you at the time of its first disclosure hereunder (the onus of providing this shall be upon you); 
or
(b)	at this time or any time after its disclosure to you comes into the public domain, otherwise than by an act of default on your part or is lawfully obtained by you from a third party entitled to make the disclosure.
8.	You shall not, without the prior written consent of the company, for a period of 18 months, from the date of termination of employment and in the area in which you serviced OAMPS clients:
(a)	directly or indirectly approach, canvas, solicit or endeavour to entice away from the company any person, firm or company who or which were clients of the company with whom you have dealt or otherwise had contact in the course of and during the last twelve months of your employment;
(b)	accept any approach or proposal whether direct or indirect from any clients whereby you are to perform or provide services to Clients in competition to the Company;
(c)	perform any work or provide any services for or on behalf of any Clients (clause 8(c));
(d)	counsel, procure or otherwise assist any person, firm or corporation to do any of the acts referred to in (a), (b) and (c) above or be financially interested in, whether solely or jointly with another director, partner, agent, shareholder, unit holder or as an employee of any person, firm, unit trust or company or be engaged or concerned in any capacity whatever in like business.
9.	On termination of your employment, you shall return to the company any documents, property or materials whatsoever acquired in the course of your employment and shall not retain any copies thereof.
[20]	In addition, the letter dated 3 April 2003 also referred to and incorporated an Employee Information Booklet.  Paragraph 2.1 of the Employee Information Booklet stated as follows:
What OAMPS Expects of you
OAMPS expects you to behave ethically and professionally at all times, to have a professional appearance and demeanour both inside and outside the office, and to remember that our business is our clients’ business.  Even when attending external social and industry functions, please remember that you are a representative of OAMPS and should conduct yourself accordingly.
When you join OAMPS or change jobs within the company, you will be provided with a Job Description setting out your duties and responsibilities.  OAMPS expects employees to fulfil the role described in this document, and in addition, encourages its employees to search continuously for ways to improve their role, environment, the organisation and it’s standing within the industry.
The section later on in this Booklet describes our guidelines on confidential information.  Discretion over client information is essential for establishing respect and trust.
[21]	During 2006 the defendant and his partner, Julie-Anne Calvert, decided that they would like to move to Melbourne and in late 2006 the defendant discussed moving to Melbourne with Mr John Barry who was then the Manager of the Darwin office of the plaintiff.  It was agreed between Mr Barry and the defendant that if the defendant could find somebody to replace him in the Darwin office then he could move to Melbourne.  In January 2007 the defendant unsuccessfully applied for the position of National Manager Affinity in Melbourne.
[22]	Eventually it was agreed that a job was to be found for the defendant in the East Melbourne office of the plaintiff and it was proposed that the defendant would start work in the Melbourne office on 30 September 2007.  Before transferring to the Melbourne office, the defendant travelled to Melbourne on several occasions with the intention of developing business contacts in Melbourne and getting to know people in the Melbourne office.
[23]	The defendant is an ardent supporter of the Carlton Football Club which is an Australian Rules Football Club in Melbourne.  On the early morning of 7 September 2007 the defendant travelled to Melbourne for the purpose of meeting with various people in the Melbourne office of the plaintiff, meeting with prospective clients with whom the defendant had developed an association and attending Carlton’s 2007 Best and Fairest John Nicholls Medal presentation night at the Crown Casino.  The Carlton Football Club had given the plaintiff seven tickets to the presentation dinner because the plaintiff was a sponsor of the Carlton Football Club.  The plaintiff has been a sponsor of the Carlton Football Club since 2006.
[24]	The defendant had intended to attend the presentation dinner with four prospective clients.  He believed that the presentation night would be a good business development activity for his transfer to Melbourne.  However, as matters transpired only two of the defendant’s prospective clients were able to attend.  Apart from the defendant and his clients, Mr Robert Peter Di Maria and Mr Claude Barichello, the management of the plaintiff gave the tickets it had received to Mr Kevin Tehan, a relatively senior employee who had been employed by the plaintiff for 21 years, Ms Athena Tyris, an administration manager and insurance broker who had been employed by the plaintiff its Melbourne office for eight years and Mr Dustyn Brown, an insurance broker who had been employed by the plaintiff in its Melbourne office for eight months.
[25]	Shortly after lunchtime on 7 September 2007 Ms Lisa Jeffreys, who is the Melbourne Region Manager of the plaintiff, took the defendant to see Ms Tyris at her work station so he could discuss her attendance at the Carlton Football Club presentation night.  Ms Jeffreys then left the defendant at Ms Tyris’s work station and they had a discussion about going to the presentation night.  The defendant told Ms Tyris that he would be heading straight to the Crown Casino after work and he would be having a few drinks with his prospective clients in the Piano Bar at the Crown Casino.  Ms Tyris told the defendant that she had to work until 5.00 pm and that she and Mr Brown would be going home first to change.  She asked if she could have her and Mr Brown’s tickets and she said that she would meet the defendant at the venue.  The defendant gave her the tickets and then he left.
[26]	Mr Grant Stillman, who is the National Manager of the plaintiff’s fuel and transport portfolio, had recommended that Ms Tyris and Mr Brown should be given tickets to attend the Carlton Football Club presentation dinner because they were football fans who were well respected employees of the plaintiff.  Both Ms Tyris and Mr Brown were under his supervision.  Mr Stillman told the defendant that he wanted Ms Tyris and Mr Brown to go to the presentation dinner because it would be a reward for them.
[27]	Prior to attending the Carlton Football Club presentation dinner the defendant had caught the 2.00 am flight from Darwin to Melbourne and he had consumed a considerable amount of alcohol.  He consumed two glasses of red wine in the Qantas Club prior to leaving Darwin, two glasses of red wine on board the aeroplane, three schooners of Carlton Draught beer at lunchtime in Melbourne, two James Boag beers after lunch and a beer at the Atrium Bar at the Crown Casino.  He then continued to consume alcohol during the course of the presentation dinner.  According to the defendant he consumed 10 standard drinks at the presentation dinner by the time he came to have the conversation with Ms Tyris and Mr Brown which resulted in them making a complaint about his behaviour during the presentation dinner.
[28]	Seated at the defendant’s table were the defendant, Mr Tehan, Mr Brown, Ms Tyris, four representatives of a transport company, Mr Di Maria and Mr Barichello.  There were also two vacant seats at the table.  Ms Tyris and Mr Brown arrived at the presentation dinner a little late.  The first speaker had started by the time that they arrived.
[29]	During the course of the presentation dinner and without any provocation or warning the defendant engaged in a vicious verbal attack on Ms Tyris and Mr Brown.  He verbally abused them on and off for a period of about 15 to 20 minutes.  Ms Tyris and Mr Brown were effectively helpless and unable to adequately respond.  They were expected to attend the presentation dinner and to behave professionally when doing so.  They had a right to be there and to enjoy themselves.  They were supposed to be being rewarded for the good service that they had given the plaintiff.
[30]	Ms Tyris’s evidence about what occurred at the dinner table was as follows:
17.	We all consumed our entrée between approximately 7.45 pm and a little after 8.00 pm.  There was then, in effect, an intermission where there was networking between people at the function, others went outside to smoke and so on.  I recall at this time that the only people left at our table were Bernie Shackcloth, Kevin Tehan, myself and Dustyn Brown.
18.	I recall that quite suddenly Shackcloth turned to me and Dustyn.  He was quite verbally abusive towards us and continuously so for approximately half an hour.  I recall this because it took place from the start of this networking period until shortly prior to main course when the guests reappeared from their networking, smoking and so on.
19.	I recall that the word “fuck” was in most sentences and sometimes more than once.  He said things to the following effect.
“I can’t believe you fuckwits accepted these invites, we could have invited more important people.”
“I can’t believe fuckwits like you going to a Carlton Best and Fairest night when you don’t even go for Carlton.”
“There are fuckwits like you that OAMPS employ and they don’t get anywhere.”
“What is the biggest client you have ever written you fuckwits.”
“You are like B1 and B2 only fuckwit 1 and fuckwit 2.”
Sometimes he would just repeat himself saying the same thing time and time again.
He did not stop talking in this way.  I was struggling to get a word to speak back to him at all.  When I did I recall I said:
“Is this how you are going to talk when your clients get back here?”
		He said:
“Yes I am, I am going to tell them what fuckwits you are when they get back.”
20.	I was absolutely fuming.  I was astonished, could not believe I was being spoken to in this way by somebody who I did not know and did not work in my division.  It was like he was untouchable and he could do or say whatever he wanted to, to us.
21.	After approximately half an hour of this treatment, Dustyn and I walked away from the table.  There was too much tension on the table and the two of us left.  We went to the foyer of the Crown Casino.  We went outside the building and smoked.  We talked about whether or not we would go back into the function.  I was concerned that Shackcloth was being so aggressive that there could have been a fight at the table.  At this point I telephoned Grant Stillman to tell him what had happened.  He was not available so I left a message on his answering machine.
22.	We decided to go back into the function.  We decided if we went back to the table and there were other people at the table including the clients or perspective clients, it was less likely that Shackcloth would behave in that way.
23.	We went back in and the second speaker had commenced.  I cannot recall which order the speeches took place, whether the second speaker was Mr Pratt or the coach.
24.	During main course I observed that Shackcloth was smirking at Dustyn and me.  He was clearly drunk.  He was very close to Kevin Tehan at the table.
25.	Towards the end of main course, I said to Kevin Tehan sarcastically:
“Thank you so much for helping us out and stopping him abusing us.”
Tehan was aware I was referring to Shackcloth.
Tehan then said to me:
“I don’t approve of what he has done but I could not stop him.”
I then said:
“We will see what he has to say when we go to Lisa Jeffreys on Monday morning.”
26.	Shortly after that Dustyn and I then left the function together.  There was too much tension and I did not think we could stay there.
27.	I felt awkward, uncomfortable and did not want to be there.
28.	I have been asked to comment on the suggestion that Shackcloth’s behaviour was “at worst a bit of a verbal joust” or “harmless football banter”.  That is not the way it was at all.  It wasn’t a one off joke.  He didn’t stop after one or two comments and have a laugh about it.  He looked and sounded bitter and angry.  There was no “verbal joust”.  We couldn’t get a word in.  He kept up the abuse for about 20 minutes.  And the abuse had very little to do with football.  The only comment about football was when he said “I can’t believe fuckwits like you going to a Carlton Best and Fairest night when you don’t even go for Carlton.”  The rest was about what fuckwits we were and how we were a waste of OAMPS’ money and a waste of space.
29.	On the following day, 8 September 2007, Shackcloth tried to contact me on my mobile telephone.  I know this because I had a missed call from his telephone number.  I did not return the call.
[31]	Mr Brown’s evidence about what occurred at the dinner table was as follows:
14.	There was a break in the counting at I think Round 11.  I think at Round 11 because this is halfway through the season.  By this stage, most people had finished eating the main course.  It seemed to me that the purpose of the break was to allow people to smoke, network, and so on.  I think this break occurred around at 9.45 pm.  Both Shackcloth’s clients left the table.  I do not know where they went, whether it was to the bathroom, to smoke or whether they knew other people at the function.  Remaining on the table was myself, Athena, Tehan and at least two of the other people although they were on the other side of the 12 person table.  Some music was playing during this break in proceedings.  In addition, there was a lot of talking involving other people at the function.
15.	Shortly after Shackcloth’s clients left the table, I recall that Shackcloth said:
“Oy, Athena – what the fuck are you two doing here?”

I recall this was the first comment from Shackcloth to us at this time.  After this time for approximately 20 minutes, although there was a brief break in the middle, Shackcloth spoke to us in very crude and aggressive terms.  His manner was such that both Athena and I struggled to say anything back to him.  He was quite repetitive and most of his statements did not lead to any response.  The following illustrations of the sorts of things that I recall that he said to us over this period of time:

“You two are like B1 and B2 only Fuckwit1 and Fuckwit2”;

“What big accounts do you write in this organisation, you think you’re a fucking hotshot?”

I recall Athena said in response to this:

“I work in admin, it is not relevant, I don’t have any clients.”

He then responded with comments like:

“You don’t even barrack for Carlton and you don’t have any fucking clients here, what the fuck are you doing here?”

“You are wasting OAMPS’ fucking money being here.”

“I could have brought two other fucking clients.”

16.	The comments by Shackcloth were made directly and in close	 proximity to Athena and me.  Shackcloth appeared very drunk.  His voice was slurred and he kept repeating the same remarks over and over.  He was leaning forward over the table directing his comments to us in an aggressive and sarcastic tone.  Kevin Tehan also from OAMPS was the only other person present at the time and he heard what Shackcloth had to say.  What Shackcloth said would not have made any sense on the other side of the table in the sense that they would not have heard enough to make any sense of it.
17.	I recall that I then said to him:
“You had better pull your head in before your clients come back.  You are embarrassing the company and yourself.”

18.	Shackcloth was then quiet for a period of time.  Athena and I ignored him and spoke between ourselves.
19.	After a relatively short period of time, Shackcloth’s clients still had not reappeared and he again started attacking Athena and me.  The comments were the same or similar to the ones that I have stated above.  As I have said, he tended to repeat himself.
20.	This exchange with Shackcloth was shorter than the first exchange but having regard to the previous exchange I recall I became very angry.  I did not think it was appropriate to reply and I was having trouble controlling my feelings.  I was so angry at this time because of what he was saying to me and Athena that I could not think of anything to say.  It was about that point in time when I was so angry at the abuse he had directed at Athena and me that I wanted to hit him but I managed to maintain the presence of mind to go outside.  I turned to Athena and said,
“I think we need to go outside and have a smoke.”

Athena and I then left the room and went outside to smoke.

21.	We were outside for 5 or 10 minutes.  When we were outside we spoke about what we had both witnessed.  We talked about whether we should stay for the remainder of the count or leave the function.  We decided that since there was probably only an hour to go with the count and that given that Shackcloth’s clients would reappear, we thought it unlikely that Shackcloth would again treat us in the way in which he had so we finished our cigarettes and went inside.

22.	When we went back to the table, Shackcloth’s clients had reappeared.  The count was restarting.  Dessert was then served.  I recall that Athena did not want to eat dessert because she said to me that she was too angry to eat.  I was very angry. 

[32]	I accept the evidence of Ms Tyris and Mr Brown about what occurred at the dinner table.  Neither of them had an axe to grind against the defendant.  They had no reason to make a false complaint or to tell lies about him.  They were both clearly upset and humiliated by what had occurred.  I reject the evidence of the defendant about what occurred at the dinner table.  I accept Ms Kelly’s submissions that the defendant tailored his evidence in this regard to suit himself and to minimise the nature of his appalling behaviour.
[33]	I also accept Ms Kelly’s submissions that, likewise, Mr Tehan tried to minimise what had occurred.  He was partial towards the defendant.  His partiality is in part established by the fact that in his statement, which was tendered in evidence, he said that there were two relevant conversations between the defendant and Ms Tyris and Mr Brown that lasted for about two or three minutes, yet in his oral evidence he described the conversations as lasting between a minute and ninety seconds. Mr Tehan conceded during his cross examination that he may not have heard the entire conversation because he went to the toilet at least twice during the evening.  Even on Mr Tehan’s version of events things were bad enough.  According to Mr Tehan, the defendant said to Ms Tyris and Mr Brown, “What are you two fuckwits doing here?” He also swore repeatedly and he used the words “fuck” and “fuckhead” or “fuckwit”. Ms Tyris told Mr Tehan that she was offended and that she was going to complain and Mr Tehan agreed during his cross examination that she was offended by what the defendant had said to her.
[34]	I do not accept the defendant’s evidence that he did not see any sign that either Ms Tyris or Mr Brown were embarrassed by his comments and that at worst his behaviour could be described as a verbal joust.  He did not attend the plaintiff’s Melbourne office on Monday 10 September 2007.  When he was asked by Mr Cox if he denied the complaint, the defendant made no such statement, nor did he say that his behaviour must have been misunderstood by Ms Tyris and Mr Brown.
[35]	 Late on the morning of 8 September 2007, Ms Tyris contacted her manager, Mr Grant Stillman. She told him what had happened the previous night.  On Monday, 10 September 2007, Mr Brown and Ms Tyris saw Ms Jeffreys at approximately 9.30 am.  They told Ms Jeffreys what had occurred.  Mr Brown and Ms Tyris were then called into a meeting with Ms Jennifer Lord, Mr Rod Hughes and Ms Jeffreys.  They attended separately from each other.  They were then asked to summarise what had occurred in writing.
[36]	On Monday 10 September 2007 the defendant spent most of the day with one of his prospective clients who had attended the presentation dinner.  He did not attend the plaintiff’s Melbourne office.  He returned to Darwin on the evening of 10 September 2007.
[37]	Mr Stewart Cox, who is the manager of the Northern Territory division of the plaintiff was advised that Ms Tyris and Mr Brown had made a formal complaint that the defendant was rude and abusive to them at the presentation dinner.  Mr Cox was also provided with copies of the complaints that had been made by Ms Tyris and Mr Brown.  As a consequence, he spoke to the defendant about the incident that had occurred at the Melbourne Crown Casino.  He did so at 3.45 pm on 13 September 2007.  Mr Mark Porteous also attended the meeting.  Mr Cox’s evidence about the meeting was as follows.  He told the defendant that some serious allegations had been made about his behaviour at the Melbourne Crown Casino on Friday 7 September 2007.  He said that the allegations were sufficiently serious that, in the absence of an explanation from the defendant, it might lead to the plaintiff summarily dismissing the defendant.  Mr Cox then asked the defendant if he had an explanation for what had happened.  The defendant seemed to know what Mr Cox was talking about.  However, he did not address the issue directly.  He said to Mr Cox that “if they want to play it that way, then I will play it by the book as well.”  Mr Cox then asked the defendant if he would respond to the situation.  He asked the defendant to do so a couple of times.  Each time Mr Cox asked the defendant to respond to the situation the defendant became quite angry and he referred to Ms Tyris and Mr Brown as “the two fuckwits”.  At no time did the defendant deny that there was any cause for concern about his behaviour at the Carlton Football Club presentation night on 7 September 2007.  Nor, alternatively, did he apologise for what had happened.
[38]	I accept Mr Cox’s evidence about the meeting on 13 September 2007.  His evidence is supported by the evidence of Mr Porteous.  His evidence was that Mr Cox spoke to the defendant about the incident that had occurred at the Melbourne Crown Casino on 7 September 2007.  He stated that Mr Cox told the defendant that the allegations were sufficiently serious that, subject to anything that the defendant had to say, it might lead to him being summarily dismissed.  Mr Cox asked the defendant if he had an explanation for what had happened and the defendant said words to the effect “if they wanted to play it that way, then I will play it by the book as well”.  The defendant seemed quite angry and he referred to Ms Tyris and Mr Brown as “the two fuckwits”.
[39]	At the end of the meeting between Mr Cox, Mr Porteous and the defendant on 13 September 2007 the defendant was stood down on full pay while the personnel employed by the Human Resources division of the plaintiff completed their investigations and deliberations.  At 9.00 am on 14 September 2007 there was a further meeting between Mr Cox, Mr Porteous and the defendant.  The meeting took place in Mr Cox’s office.  Mr Cox’s evidence about the second meeting was as follows.  He told the defendant that having considered what had occurred, together with the defendant’s failure to deny the complaint or explain his conduct, the senior management of the plaintiff had decided to terminate his services and, in lieu of summary dismissal, the defendant was offered the option of resigning with four weeks pay in lieu of notice.  The defendant was given the documentation that he would be required to sign if he exercised the second option that was offered to him.  He read the documentation very quickly and he said that he was not interested in accepting the option that he was offered.  The defendant was clearly very angry and he said on at least a couple of occasions “this is a joke” and “this is bullshit”.  As a result, the defendant’s employment was terminated and he was asked to leave that day.  The defendant was asked to clean out his desk and his office and to return his mobile telephone to the plaintiff.  He did so, but he took his SIM card out of his mobile telephone and he kept it.
[40]	I accept Mr Cox’s evidence about the meeting between Mr Cox, Mr Porteous and the defendant on 14 September 2007.  His evidence is supported by the evidence of Mr Porteous.  Mr Porteous’s evidence was that at the meeting at 9.00 am on 14 September 2007, Mr Cox told the defendant that as he had nothing to say to the plaintiff, the plaintiff had decided to terminate his employment.  The defendant was offered the option of resigning with four weeks pay.  He seemed angry and upset and he declined to take the option of resignation.  Mr Cox then terminated the defendant’s employment.
[41]	I do not accept the defendant’s evidence that he was not given an opportunity by Mr Cox to answer the complaint.  Nor do I accept his evidence that Mr Cox invented his evidence about what occurred at the meetings on 13 and 14 September 2007.  Following his meeting with the defendant on 13 September 2007 Mr Cox sent an email to Ms Jennifer Patricia Lord.  The email was copied to Mr Scott Denning, who was in charge of the Northern Territory and North Queensland divisions of the plaintiff, and to Mr Peter Blackmore.  In the email Mr Cox stated the following:
I met with Bernie Shackcloth at 3.45 pm today and had Mark Porteous in attendance as a witness.
I advise (sic) Bernie that HR had received two separate complaints which relate to Serious Mis-conduct (sic) and could lead to Summary Dismissal.  In view of these complaints I advised Bernie that he was to be stood down immediately on full pay until 9.00 am Friday 14/9/07.
I offered Bernie the opportunity to give his side of Friday night and he responded with “if they want to play it that way, then I will play it by the book as well”.  I requested Bernie’s security pass which he duly handed over.  I asked again if he wanted to say anything to which he declined.  His basic reaction was that of disbelief and he referred to “the two Fuckwit’s (sic)”
I walked Bernie to his office, where he collected his wallet and keys and closed down his computer and left the building.
Bernie asked if we could meet at 8.30 am instead of 9.00 am to which I agreed.
I suggest that OAMPS obtain a statement from Kevin Tehan if not already done.
Please forward the suggested release document you mentioned earlier today as I have discussed with Scott Denning and he agrees with the four weeks.
[42]	Had the defendant’s employment not been terminated he would have been employed in the plaintiff’s office in East Melbourne.  While no final decision had been made about the position in which the defendant was to be employed, he was to be employed in either one of the three commercial teams or one of the three corporate teams in the plaintiff’s East Melbourne office as from 30 September 2007.  It was the evidence of Ms Jennifer Lord, who is the Human Resources Manager of the plaintiff, that if the defendant was placed in one of the three commercial or three corporate teams in the East Melbourne office, he would have worked in the same building but not the same floor as Ms Tyris and Mr Brown.  In such circumstances there would be opportunities for interaction between the defendant and Ms Tyris and Mr Brown in the car park, lifts and foyer of the building, at work functions and at the regular group meetings held by Ms Jeffreys.  I accept her evidence.
[43]	Likewise I accept the evidence of Ms Lord that the plaintiff has an Appropriate Workplace Behaviour Policy which is published on the plaintiff’s intranet and that this policy was in force during 2007.  The policy states under the heading, “What is Appropriate Workplace Behaviour?”, that:
OAMPS wishes to create and maintain a workplace culture in which all people treat one another with respect.  OAMPS will not tolerate behaviour in the workplace that is intended to upset, offend or humiliate others nor any act by an employee resulting in unlawful discrimination or harassment.  Disciplinary action may be taken against any employee for inappropriate behaviour even though the behaviour may not be unlawful.
[44]	The evidence of Mr John Barry, who was the Manager of the Darwin office of the plaintiff, was to the effect that the behaviour of the plaintiff’s employees was consistent with the policy.  While Mr Barry acknowledged that there was some swearing in the workplace (and there was other evidence that some swearing occurred in the workplace and that some employees were in the habit of using rude nicknames when they sent emails to each other), it was his evidence that employees could not swear directly at each other and, in substance, it was necessary to ensure that people were not going to be offended by any swearing.
[45]	Ms Lord also gave evidence that the Appropriate Workplace Behaviour Policy was designed to foster a safe professional and pleasant working environment and that it was her experience that such an environment increases staff commitment to the organisation and raises productivity and profitability.  It is apparent from the evidence about the manner in which the business of the plaintiff has grown and the nature of the insurance broking industry that the retention of staff is an important feature of the business.
The facts about the nature of the defendant’s portfolio of clients and the renewal of insurance policies
[46]	I find the following facts about the defendant’s portfolio of clients and the renewal of insurance policies.
[47]	The principal evidence about the nature of the defendant’s portfolio of clients at the time his employment with the plaintiff was terminated is contained in two documents, namely, annexure SEC 4 to the statement of Mr Cox, which was entitled “Bernie Shackcloth Portfolio Ranked by Income Including Name”, and exhibit D 29, which was entitled “Outstanding Renewal Report”.  Those documents reveal that there was a wide range of insurance policies purchased by the plaintiff’s clients who the defendant serviced.  The kinds of insurance polices purchased by the defendant’s clients included motor vehicle insurance, commercial motor vehicle insurance, householders insurance, general property insurance, personal accident and illness insurance, marine pleasure craft insurance, a landlord’s insurance package, householder’s accidental insurance, professional indemnity insurance, commercial package insurance, contract works insurance – one – off, public/products liability insurance, farm package insurance, marine hull insurance and earthpac liability insurance, business pack insurance and earthpac motor and plant insurance. 
[48]	The largest premium paid by the defendant’s clients was $103,275 for work health insurance.  The smallest premium paid by the defendant’s clients was less than $100 for CGU landlord’s insurance.  The vast bulk of insurance premiums paid by the defendant’s clients were less than $1600.  The largest brokerage amount was $8,232.80 for earthpac motor and plant insurance.  The smallest brokerage amounts were less than $50.00.  The largest brokers’ fee charged was $681.18.  The defendant’s two largest clients were commercial clients that each paid a total of about $145,000 per annum for various insurance premiums.  All other clients of the defendant paid total insurance premiums of a significantly less amount.  The vast majority of insurance policies brokered by the defendant to his clients were relatively standard insurance products.
[49]	The total value of the defendant’s portfolio of clients prior to the termination of his employment by the plaintiff was in the vicinity of $500,000.  No direct evidence was led about the nature and structure of the defendant’s portfolio of clients at the time that he commenced his employment with the plaintiff.  However, it is a fair inference, judging by changes in the salary of the defendant, that the nature and structure of the defendant’s portfolio of clients would have been a little smaller but otherwise essentially the same at the time that he started his employment with the plaintiff.
[50]	Alastair Raymond Mitchell was called by the defendant to give evidence.  Mr Mitchell gave evidence that he had been working in the insurance industry for 45 years and that he held the following qualifications specific to insurance: Insurance Associateship (FIRE); Insurance Associateship (CASUALTY); Insurance Fellowship; Diploma, Financial Services (Broking); and he was currently preparing to attain Senior Professional Assessment 3 (Broking).  He gave oral evidence about what was involved in renewing and remarketing a number of the insurance products brokered by the defendant while he was employed by the plaintiff.  His evidence was that much of the insurance brokered by the plaintiff would not have to be remarketed to any great extent because the insurance products were quite standard products.  He gave evidence to the effect that when a client retains a broker the insurance renewal notices were sent to the broker and not to the client.  The broker then contacted the client to arrange the annual renewal of the client’s insurance polices.  He said that in the case of an insurance portfolio such as the defendant’s portfolio the renewal notices would be sent to the broker six weeks to two months prior to the insurance renewal date.  He said that, in addition, a broker should set his own agenda so that the broker was in a position to ensure that the broker’s clients insurance polices were renewed by the renewal date.  It was Mr Mitchell’s opinion that for the domestic and single line business insurance policies that were in the defendant’s portfolio it would be prudent to commence the renewal process four to six weeks before the renewal date.  It would be the same for work health, public liability and policies such as the earthpac motor plant policy for which there was a premium of $41,163.99 payable.  Mr Mitchell said that if it was necessary to remarket any of the insurance products in the defendant’s portfolio it may take another two to three weeks.  That gives a total renewal period for the type of insurance polices in the defendant’s portfolio of between six and eleven weeks.  Such a period is consistent with what Mr Cox said in his prepared statement.  He said that generally the insurance requirements are considered and arranged in one to three months leading up to the insurance renewal falling due.
[51]	Mr Mitchell also gave evidence that if 38 per cent of the portfolio was to fall due on 30 June each year it may be necessary to start the renewal process two to three months before the renewal date and longer if it was necessary to remarket any of the insurance policies.  However, it has not been established that 38 per cent of the defendant’s portfolio fell due on 30 June of each year.  Judging by Mr Cox’s evidence as to when the fees and brokerage would be earned upon the renewal of the insurance business in the plaintiff’s portfolio it would appear that the renewal periods for the various insurance polices were spread fairly evenly throughout the year.  In all of the circumstances I find that it would take between four weeks and three months to renew and or remarket the insurance polices that were in the defendant’s portfolio of insurance business. 
The facts about the defendant’s subsequent employment and his contact with the plaintiff’s clients 
[52]	I find the following facts about the defendant’s subsequent employment and his contact with the plaintiff’s clients.
[53]	On 15 September 2007 the defendant had a telephone conversation with Mr Brian Austin who is one of the senior people in BM Insurance Brokers.  Mr Austin advised the defendant that BM Insurance Brokers were considering opening an office in Darwin and he asked if the defendant would be interested in joining BM Insurance Brokers in Darwin.  The defendant agreed to do so and that business commenced in Darwin on or about 26 September 2007.  BM Insurance Brokers opened an office in Darwin in the second half of October 2007.
[54]	Mr Cox gave evidence that between 28 September and 1 October 2007 the plaintiff received 20 letters of authority transferring insurance business from the plaintiff to Robert Masterman Insurance Brokers Pty Ltd trading as BM Insurance Brokers in its Darwin office.  Of these, 18 related to clients that were previously the responsibility of the defendant.  The defendant’s handwriting appears on at least 14 of the letters of authority.  Since that time further letters of authority have been received by the plaintiff at its Darwin office.  The majority of the letters of authority are not on the client’s letterhead and the authority appears to be contained in a standard form document.  I accept Mr Cox’s evidence about these matters.
[55]	The defendant’s photograph has also appeared in two advertisements for BM Insurance Brokers that have been published in the NT News.
[56]	I am satisfied on the balance of probabilities that the plaintiff has been soliciting his past clients in an endeavour to entice their custom away from the plaintiff and to attract their custom to BM Insurance Brokers.  I am satisfied for the following reasons.  First, the defendant kept the SIM card for the mobile telephone that he was required to return to the plaintiff and it was subsequently wiped.  Secondly, it was necessary for the defendant to obtain a number of new telephones and new telephone numbers.  Thirdly, the significant number of letters of authority that were received by the plaintiff in the Darwin office within a very short time after the defendant’s employment was terminated.  Fourthly, the evidence of Mr Pfitzer, Mr Cox and Mr Mitchell that insurers send renewal notices to the broker and not to the client and that it is rare for a client to telephone a broker about renewals.  Fifthly, the various telephone records that were tendered in evidence which demonstrate that during the relevant period after the defendant’s employment with the plaintiff was terminated, the defendant was the first to contact his past clients.
Was the restraint of trade clause reasonable?
[57]	The common law prohibits unreasonable restraints of trade.  Contractual provisions which amount to an unreasonable restraint of trade are void and unenforceable.  A restraint of trade clause is reasonable if it is necessary to provide adequate protection to the party who has the benefit of the restraint and at the same time preserves the fullest liberty of action consistent with that protection to the party who has the burden of the restraint: Brightman v Lamson Paragon Ltd  per Isaacs J.
[58]	In Lindner v Murdock’s Garage  Latham CJ stated that:
Where an employee is in a position which brings him into close and personal contact with the customers of a business in such a way that he may establish personal relations with them of such a character that if he leaves his employment he may be able to take away from his former employer some of his customers and thereby substantially affect the proprietary interest of that employer in the goodwill of his business, a covenant preventing him from accepting employment in a position in which he would be able to use to his own advantage and to the disadvantage of his former employer the knowledge of and intimacy with the customers which he obtained in the course of his employment should, in the absence of some other element which makes it invalid, be held to be valid.
[59]	For a restraint to be reasonable it must be no wider than is necessary: Buckley v Tutty .  The law is concerned to safeguard the right of persons to work in their chosen profession without unnecessary or unjust restriction.  The onus of proof that the restraint is reasonable is on the party relying on the restraint: Lindner v Murdock’s Garage .
[60]	The reasonableness of the restraint is to be determined at the date the contract of employment was made.  The question is whether the covenant was a reasonable one for the parties to agree to at the outset of the service on the best estimate which they could then make of the future: Lindner v Murdock’s Garage ; Adamson v NSW Rugby League Ltd  per Gummow J.  Improbable or extravagant contingencies need not be considered: Marquett v Walsh . 
[61]	The important question is, does cl 8 of the defendant’s terms of employment impose upon the defendant a greater degree of restraint than the reasonable protection of the plaintiff requires: Heron v The Port Huon Fruitgrowers’ Co-operative Association Ltd .  Clause 8 will be unreasonable if the term of the restraint is for too long a period.
[62]	It was not contended in this proceeding that either the area of coverage of cl 8 (limited to the area in which the defendant serviced the plaintiff’s clients) or the extent of the restraint (limited to approaching, accepting an approach from or performing work for only those clients with whom the defendant had dealings in the course of and during the last 12 months of his employment) were unreasonable.  Argument centred on the duration of the clause and in this regard the evidence of Mr Cox, Mr Lamont and Mr Mitchell was all to the same effect, namely, that it was necessary to allow the plaintiff one complete cycle of renewals for all of the insurance policies in the defendant’s portfolio of clients.  As a matter of law I find that this approach is correct in the circumstances of this proceeding. 
[63]	I accept the plaintiff’s submission that the question for the Court to determine is, what is the reasonable length of one complete cycle of renewals for the insurance premiums in the defendant’s portfolio of clients?  In determining the length of the relevant cycle I consider that the following factors are significant.  First, insurance polices are renewable annually.  Secondly, the insurance policies that had been purchased by the clients that the defendant serviced for the plaintiff were renewable at different times over any 12 month period.  Thirdly, renewal notices for polices of insurance are sent to the broker and not to the client.  Fourthly, renewal notices for the various polices of insurance of the plaintiff’s clients that were serviced by the defendant were sent out at different times throughout any 12 month period.  Fifthly, the renewals of the insurance policies were spread relatively evenly throughout any 12 month period.  Sixthly, the insurance arrangements of the plaintiff’s clients who were serviced by the defendant were not large or complex.  The portfolio included a considerable amount of domestic insurance and motor vehicle insurance.  A lot of the commercial insurance was one line insurance.  Apart from one or two clients there were very few different types of insurance purchased by the plaintiff’s clients who were serviced by the defendant.  Seventhly, while it was no doubt hoped that the plaintiff’s portfolio would grow, it could not have been reasonably expected by either the plaintiff or the defendant that the nature and structure of the defendant’s portfolio of clients would change radically over time.  It could not reasonably have been expected that the defendant’s portfolio of clients would transmogrify into the sort of complex and expensive packages that Mr Mitchell spoke about in his evidence.  Nor could it have been reasonably expected that in the foreseeable future the defendant was likely to move to another office of the plaintiff and start managing large and complex insurance portfolios.  Such developments were highly improbable.  Allowing for them would amount to an extravagant contingency.  Further, if the defendant were to apply to move to another position within the plaintiff where there was the prospect of him developing a large and complex portfolio, then the plaintiff was perfectly free to negotiate a greater restraint as a condition of transfer.  Eighthly, I accept the evidence of Mr Mitchell that all renewals of insurance polices held by the plaintiff’s clients who the defendant serviced, including remarketing, could have been arranged and completed within  four weeks to three months.  Ninthly, I do not consider it necessary to have regard to or allow for the fact that some of the plaintiff’s clients may have been dilatory in paying their premiums for insurance.  While the pirating of premiums by a past employee may be a risk immediately after a person ceases to be employed by a broker, it is unlikely to be a risk after a period of twelve months has elapsed.
[64]	In all of the circumstances I find that the restraint of trade clause contained in clause 8 of the letter dated 3 April 2003, which contained the defendant’s contract of employment with the plaintiff, was unreasonable and is void.  It was longer than necessary.  A reasonable length of time for the duration of the restraint would have been a period of 15 months at the most.
[65]	I have not placed a great deal of weight on Mr Lamont’s evidence.  His evidence was internally inconsistent.  While ultimately he conceded in cross examination that the standard restraint period that he designed may have been 18 months, not 12 months, he appeared to still maintain that the standard restraint period in the industry for employees who were not vendors was 12 months and that he, personally, was always prepared to negotiate a lesser period of restraint than 18 months. 
Was the defendant wrongfully dismissed?
[66]	For the conduct of the defendant, the subject of the complaint, to justify summary dismissal it must be wilful and connote a deliberate flouting of the contract of employment: Laws v London Chronicle (Indicator Newspapers) Pty Ltd ; North v Television Corp Ltd .  The test to be applied is that enunciated by the High Court in Blyth Chemicals Ltd v Bushnell , where Dixon and McTiernan JJ stated at p 81 – 82 that:
Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell [13], at pp. 357-8 and 362-4; English and Australian Copper Co. v. Johnson [14]; Shepherd v. Felt and Textiles of Australia Ltd. [15]). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.
[67]	The conduct in which the defendant engaged on 7 September 2007 at the Melbourne Crown Casino during the 2007 Carlton Football Club Best and Fairest presentation night was incompatible with the defendant’s duty not to abuse co-workers and with his duty to behave professionally.  The plaintiff had firm policies and written directions in place in relation to both matters.  The defendant’s conduct was destructive of the necessary confidence and trust between an employer and employee.  It was so despite the fact that it was an isolated drunken incident.  The plaintiff placed considerable emphasis on the retention of its staff and it considered that the maintenance of appropriate behaviour between members of its staff was necessary to ensure that it retained its staff.  The position would have been different had the defendant apologised for his conduct and offered some explanation for what had occurred.  The defendant’s failure to apologise demonstrated a complete lack of insight into his conduct and amounted to a further disregard of the requirement that he should behave appropriately to other staff.  If the defendant had not apologised and had not been dismissed there would have been ongoing tension in the Melbourne office of the plaintiff and the application and usefulness of the plaintiff’s appropriate behaviour policy would have been considerably devalued.  The plaintiff could never be confident that the defendant would not repeat his behaviour at some stage in the future.
[68]	I do not accept the defendant’s submission that the incident merely involved Ms Tyris and Mr Brown simply being berated by a drunk on a social occasion and that the situation could have been resolved by them moving away.  Ms Tyris and Mr Brown had been chosen by their manager to attend the presentation night.  They were seated at a prominent table on a significant occasion in a room full of many people.  They were expected to be there to carry the plaintiff’s flag.  They were also expected to behave professionally.  They were effectively helpless in the face of sustained and uncalled for abuse.
[69]	I find that the plaintiff was justified in summarily dismissing the defendant from his employment with the plaintiff.
Was the defendant misled about the terms of the letter dated 3 April 2003?
[70]	The defendant gave the following evidence about the circumstances in which he came to sign the letter dated 3 April 2003.  Prior to signing the letter dated 3 April 2003 he was told by Mr John Barry and Mr Dave O’Callaghan that no one who was employed by All Financial Services Pty Ltd would be worse off as a result of the plaintiff’s purchase of the insurance business of All Financial Services Pty Ltd.  He stated that Mr Lamont also told him that the plaintiff would continue his employment on the same or better terms that he was already on at All Financial Services Pty Ltd.  On 31 March 2003 Mr Ian McLardy arrived in Darwin and attended the offices of All Financial Services Pty Ltd.  Shortly after Mr McLardy arrived he gave the defendant an envelope containing the plaintiff’s handbook and a letter of offer of employment.  Mr McLardy told him to read the letter and sign it and that he needed it back before he left Darwin in a few days.  He looked at the letter but stopped at par 2 because he noticed that there was no reference to his annual bonuses which were part of his remuneration package.  He did not read the balance of the letter.  He immediately located Mr McLardy and told him that the remuneration figure was not right.  Mr McLardy took the letter and said that he would come back to the defendant.  Mr McLardy did not come back to the defendant until 3 April 2003 and before Mr McLardy came back to him he told the defendant that all staff would be better off with the plaintiff.  Shortly prior to his departure on 3 April 2003 Mr McLardy came and saw the defendant and told him that, “We’ve got it fixed and we have added the annual bonus.”  Mr McLardy told the plaintiff that he was about to fly out and he needed the defendant to sign the letter.  At that point the defendant signed the documents without reading the documents.  The defendant had focused only on the remuneration aspects of the package and he had no idea that the letter dated 3 April 2003 also contained the restraint of trade clause.  As a result the defendant claims that he was misled.
[71]	I do not accept the evidence of the defendant in this regard.  It beggars belief.   The letter was a short and uncomplicated document.  He had ample time to read the letter of offer of employment and the natural human reaction having discovered one error was to read the letter in full to ensure that there were no other errors or unsatisfactory terms in the letter.  I also accept the plaintiff’s submission that the representations relied on are not representations about the content of the letter and that even if the defendant did not read the whole of the letter causation is not established. 
Orders
[72]	I make the following orders:
1.	Judgment for the defendant in relation to the plaintiff’s claims against the defendant.
2.	Judgment for the plaintiff in relation to the defendant’s counterclaims against the plaintiff.
[73]	I will hear the parties further as to costs and as to any ancillary orders.
----------------------------------