FEDERAL COURT OF AUSTRALIA
Murphy v Westpac Banking Corporation [2011] FCA 280
Citation: Murphy v Westpac Banking Corporation [2011] FCA 280 Parties: LOUISE MURPHY v WESTPAC BANKING CORPORATION ACN 007 457 141
WILLIAM LAWSON v WESTPAC BANKING CORPORATION ACN 007 457 141
File number(s): NSD 1157 of 2009
NSD 690 of 2010Judge: JAGOT J Date of judgment: 29 March 2011 Catchwords: PRACTICE AND PROCEDURE – application to amend statement of claim – whether proposed amended statement of claim insufficiently particularised – whether conditions should be imposed on grant of leave Legislation: Federal Court Rules O 13 r 2 Cases cited: Celestino v Celestino [1990] FCA 449
Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of NSW, Santow J, 16 October 1996)
Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579; [2000] FCA 1732
SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816Date of hearing: 22 March 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicants: Mr D P O'Dowd Solicitor for the Applicants: Gillis Delaney Lawyers Counsel for the Respondent: Mr M J Steele Solicitor for the Respondent: Allens Arthur Robinson
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1157 of 2009
BETWEEN: LOUISE MURPHY
ApplicantAND: WESTPAC BANKING CORPORATION ACN 007 457 141
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
29 MARCH 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant be granted leave to file an Amended Application and an Amended Statement of Claim substantially in the form of Exhibit A on the notice of motion.
2.The applicant be granted leave to withdraw any admission contained in paragraphs 18, 19 and 20 of the Statement of Claim filed 13 October 2009.
3.Costs of the motion be reserved.
4.The proceeding be adjourned for directions before a Registrar of the Court on the same date as proceedings NSD 31 of 2010, NSD 384 of 2010 and NSD 90 of 2010 (noting that these will be listed in accordance with the Orders dated 21 March 2011 in each of those matters).
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 690 of 2010
BETWEEN: WILLIAM LAWSON
ApplicantAND: WESTPAC BANKING CORPORATION ACN 007 457 141
Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
29 MARCH 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicant be granted leave to file an Amended Application and an Amended Statement of Claim substantially in the form of Exhibit B on the notice of motion.
2.Costs of the motion be reserved.
3.The proceeding be adjourned for directions before a Registrar of the Court on the same date as proceedings NSD 31 of 2010, NSD 384 of 2010 and NSD…
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- Case
- [2011] FCA 280
- Decision Date
CaseChat Overview and Summary
Regarding the particulars of remuneration, the court accepted that the particularised fact that Westpac paid fixed salaries and annual incentives was sufficient for Westpac to know the case it had to meet. The court held that it was not necessary to provide further particulars of the amounts paid for each nominated year by way of fixed component and annual incentive. Regarding the written term not being sufficiently particularised, the court found that the particulars provided were adequate as they referred to a paragraph in a letter that needed to be construed in the context of the whole letter. The court also found that Mr Lawson's statement of claim did not sufficiently particularise the facts, matters or circumstances by which it was said that Mr Land had ostensible authority to alter the terms and conditions of Mr Lawson's employment.
The court granted leave to the applicants to file amended statements of claim and to withdraw certain admissions. The court also reserved costs of the motion and adjourned the proceedings for directions before a Registrar of the Court.
Orders
Orders of the court
1. The applicant be granted leave to file an Amended Application and an Amended Statement of Claim substantially in the form of Exhibit A on the notice of motion.
2. The applicant be granted leave to withdraw any admission contained in paragraphs 18, 19 and 20 of the Statement of Claim filed 13 October 2009.
3. Costs of the motion be reserved.
4. The proceeding be adjourned for directions before a Registrar of the Court on the same date as proceedings NSD 31 of 2010, NSD 384 of 2010 and NSD 90 of 2010 (noting that these will be listed in accordance with the Orders dated 21 March 2011 in each of those matters).
Note:
1. The applicant be granted leave to file an Amended Application and an Amended Statement of Claim substantially in the form of Exhibit B on the notice of motion.
2. Costs of the motion be reserved.
3. The proceeding be adjourned for directions before a Registrar of the Court on the same date as proceedings NSD 31 of 2010, NSD 384 of 2010 and NSD 90 of 2010 (noting that these will be listed in accordance with the Orders dated 21 March 2011 in each of those matters).
Note:
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
No particulars of remuneration (Murphy 3(c)(iii) and Lawson 3(c)(iii)): these particulars relate to a claim that certain terms were implied into the contracts of employment of Ms Murphy and Mr Lawson on the basis of custom and practice having regard to, amongst other things, the particularised fact that Westpac remunerated the applicant over a number of years by way of a fixed component and an annual incentive. Westpac seeks particulars of the amounts paid for each nominated year by way of fixed component and annual incentive. Counsel for Ms Murphy and Mr Lawson submitted that such particulars were not required, especially when it was recognised that Westpac paid the applicants and had all of the records relating to those payments. I accept the submissions on behalf of Ms Murphy and Mr Lawson. The particular relates only to the fact of remuneration by way of two components (the fixed salary and the annual incentive). The amount paid in each component is not material to the claim as particularised. The claim as particularised is sufficient for Westpac to know the case it has to meet. If Westpac considers that the amount of each component is relevant to its defence, it is a matter for it to identify those amounts and the way in which they are said to be relevant. Written term not sufficiently particularised (Murphy 11 and Lawson 10): the relevant paragraphs of the statements of claim allege that it was a term of employment contract that, if employment was terminated before 30 September 2009, the employee would be paid a pro rata amount of the annual incentive for the 2008/2009 financial year and a pro rata amount of the medium-term incentive (or MTIP) for the 2008/2009 financial year. The particulars of this claim are that the term is in writing and is set out in a letter dated 31 October 2008 from Westpac to Ms Murphy and Mr Lawson respectively. Westpac requests further particulars of the precise words in the letter said to constitute the express term. In submissions it became apparent that the key part of the letter was contained in the paragraph numbered “2” on the second page of the letter. However, it is also apparent that in order to construe that paragraph it is necessary to have regard to the whole of the letter (not the least because it refers to terms defined elsewhere in the letter). On this basis the particular as provided is adequate.OTHER ISSUES The other proposed amendments (and objections) relate to Mr Lawson’s statement of claim. No particulars of ostensible authority (Lawson 5B): paragraph 5B of Mr Lawson’s statement of claim pleads a term of Mr Lawson’s employment contract particularised as a term in writing set out in two emails between James Land and Mr Lawson, where it is said that Mr Land had actual or ostensible authority to alter the terms and conditions of Mr Lawson’s employment. As Westpac pointed out, there are no particulars provided of the facts, matters or circumstances by which it is said that Mr Land had ostensible authority to alter the terms and conditions of Mr Lawson’s employment.