15 May 2013


In Fishlock v Campaign Palace Pty Ltd [2013] NSWSC 531 the Supreme Court of New South Wales has held that Paul Fishlock, former executive creative director of advertising agency The Campaign Palace, was entitled to damages for repudiation of contract as well as long service leave.

The defendant initially asserted that Fishlock, by reason of his possession, custody and control of certain templates and presentations, had taken confidential information or intellectual property belonging to the agency and "by reason thereof engaged in what was described as serious misconduct". It was further alleged that had the defendant known of these matters it would have had a right to summarily terminate the plaintiff's employment. As a result the defendant asserted he was not entitled to any compensation for redundancy or other matters. By reason of his possession of the templates and presentations he had not come to equity with clean hands. Further, the plaintiff's assertion that the contract was repudiated amounted to unconscionable conduct on the part of the plaintiff.

On the second day of the trial, the agency abandoned any claim based on an alleged misuse by Fishlock of templates and presentations belonging to the defendant.

 The defendant also asserted that the plaintiff had failed to mitigate his losses and was obliged to bring to account any earnings from other sources which he had made after leaving the employment of the defendant.

Fishlock was successful in his application for damages over the agency's repudiation of his employment contract.

The Court accepted that the agency's decision to appoint another person as National Chief Creative Officer and reduce Fishlock's standing and status amongst the agency staff amounted to repudiation of the employment contract.