*302 Greig and Others v Insole and Others 1977 G. No. 22461977 J ...

[1978] 1 W.L.R. 302 Page 23
[1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978) 122 S.J. 162 [1978] 1 W.L.R. 302 [1978] 3 All E.R. 449 (1978)
122 S.J. 162
(Cite as: [1978] 1 W.L.R. 302)
will in an appropriate case readily imply such an
obligation on the part of the employer, if it is satisfied
that such implication is the proper way of giving
to the transaction the business efficacy which
both parties must have intended it should have: see,
for example, Devonald v. Rosser & Sons
[1906] 2 K.B. 728 . In a case where the
agreement of service manifestly and on its face
contains an exhaustive catalogue of all the terms
that the parties have agreed upon, the court may
find it impossible to make any such implication: see
per Farwell L.J., at p. 745, and
Aspdin v. Austin (1844) 5 Q.B. 671 ,
684. Save in such a case, however, the court will
not be reluctant to imply an obligation binding the
employer either to provide work, so as to enable the
employee to perform his part of an otherwise onesided
arrangement, or at least to pay him the specified
remuneration so long as the employee is
ready and willing to perform the services contracted
for and is prevented only by the employer from performing
them.
These being the relevant principles, I revert
to the actual terms of the players' contracts in the
present case. The wording of clause 5, coupled with
that of clause 6 (b), in my judgment makes it clear
that the promoter is to be under no obligation in any
year to arrange “tours” outside Australia and that, if
he does arrange such a “tour,” he is to be obliged to
pay the player merely pro rata for the number of actual
“play days” in such “tour,” according to the
formula set out in clause 6 (b). In these circumstances
there is in my judgment no room for any
implication of terms in regard to “tours” outside
Australia. The position in regard to “tours” in Australia
seems to me quite different. Under clause 6
(a) of Mr. Greig's contract, the player is to be remunerated
for his participation in each “tour” in Australia
by way of a fixed stated sum, which is to be
paid as to a stated part of the date of the contract, as
to a further stated part “following the completion of
the third test match or on January 5 in that season
(whichever shall be earlier) and as to $10,000 on
completion of the tour.” Clause 6 (a) states the “day
rate” of remuneration, but the sub-clause is so drafted
that even if, in the event, a “tour” in Australia
arranged by the promoter is less than 55 days, a
player, who has participated in the “tour” and otherwise
performed his part of the contract, is entitled
to the total agreed fee in respect of that “tour,”
without any pro rata reduction. In these circumstances,
in my judgment the clear inference is that
if, during the term of such contract, whereby the
promoter was expressed to “engage the player to
provide his services,” the promoter in any year
failed to arrange any “tour” in Australia, a player,
who demonstrated his willingness to play on such a
“tour” if arranged and had otherwise observed his
part of the contract, would be entitled to the full
“tour” fee. Such implication is in my judgment the
only way of giving reasonable effect to the presumed
intention of the parties, particularly
*327 when the restrictions imposed on this
player by clause 3 (b) for the term of the contract
are taken into account.
I therefore reject the defendants' submission that
the players' contracts are void, either on the ground
of public policy or on any other grounds. I should
perhaps add that the defences in the two actions add
a plea that such contracts are unenforceable. Of the
50 or so players who had entered into such contracts
by the time that proceedings were begun,
some (such as Mr. Procter) did not receive legal advice
on them and most, if not all, were not immediately
supplied with copies for them to retain. It may
be — I put it no higher — that, on these or other
grounds, some individual players would in the particular
circumstances of their respective cases have
the right to rescind their contracts as against World
Series Cricket. For present purposes it will suffice
to say that no attempt was made on behalf of the
defendants, either by adduction of evidence or otherwise,
to show that the contracts were all voidable
by the players on the grounds of misrepresentation,
undue influence, unconscionable bargain or similar
grounds. In this context the only submission put
forward was that they were wholly void, on the
grounds which I have considered and rejected.
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