05 May 2021
Employers seeking to enforce post-employment restraints will need to carefully consider the jurisdiction in which proceedings are commenced, following a recent NSW Court of Appeal decision which found contracts with an exclusive overseas jurisdiction could not be enforced in Australia.
In Qantas Airways Ltd v Rohrlach  NSWCA 48, the NSW Court of Appeal was required to make a preliminary determination as to which jurisdiction the restraints could be enforced due to the contract of employment containing an entire agreement clause and an exclusive jurisdiction clause limiting the jurisdiction to Singapore.
The Court of Appeal found that the post-employment restraints were exclusive to the Singapore jurisdiction, and therefore unable to be enforced by NSW courts. As such, Qantas’ only option was to seek an injunction in the Singaporean courts. The Singaporean courts granted this injunction and upheld to enforce the restraint pending the substantive proceedings.
Background – first proceedings in Qantas Airways Ltd v Rohrlach  NSWCA 48
In March 2021, Qantas commenced proceedings in NSW to restrain a departing executive, Nick Rohrlach, from commencing with Virgin Australia as head of Virgin Australia’s Velocity loyalty program. At the time of his exit, Mr Rohrlach was based in Japan, after having spent a period of his employment in Singapore as well.
The following agreements governed Rohrlach’s employment:
After Rohrlach gave notice of his resignation, both parties commenced legal action. Rohrlach commenced proceedings in Singapore seeking declarations that the restraints were void and unenforceable (Singapore Proceedings). Qantas then commenced proceedings in NSW seeking to enforce the Deed’s restraints and obtain an anti-suit injunction preventing Rohrlach from continuing the Singapore proceedings (NSW Proceedings). Rohrlach then sought to stay the NSW Proceedings.
At first instance, the NSW Supreme Court found in favour of Rohrlach and dismissed Qantas’ claim before Qantas appealed this decision to the NSW Court of Appeal.
Judgment of the Court of Appeal
The Court of Appeal upheld the decision at first instance and found in favour of Rohrlach.
The Court found that the Contract provided the “overarching architecture” governing Rohrlach’s employment and held that the Deed did not cease the operation of the Contract on its terms.
Although the Deed nominated the law of Japan as the relevant choice of law, the Court considered that it did not supersede the Contract’s operation because the Deed did not contain an exclusive jurisdiction clause nor an exclusive agreement clause.
The Court made their finding on the following grounds:
Although Qantas was ultimately successful in the Singaporean courts in obtaining an injunction to enforce the restraints pending the substantive proceedings, its approach in the NSW courts proved costly.
This case demonstrates a number of important matters for all employers, including:
Authors: Michael Selinger, Declan Johnston & Olivia Lawrence
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