Murphy v Westpac Banking Corporation

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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 2010
Judge: 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 816
Date 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
Applicant
AND:

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
Applicant
AND:

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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Details
Case
[2011] FCA 280
Decision Date

CaseChat Overview and Summary

Louise Murphy and William Lawson sought leave to amend their statements of claim against Westpac Banking Corporation, and Murphy also sought to withdraw certain admissions. Westpac opposed the motions on several grounds. After a partial hearing, the court adjourned the motions to allow the applicants to address Westpac's objections and propose further amendments to their statements of claim. The court found that many of Westpac's objections were resolved by the applicants' proposed amendments. However, Westpac argued that some of the proposed pleadings were insufficiently particularised. The court examined each objection in turn.

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

These reasons for judgment relate to a notice of motion in each of proceedings NSD 1157 of 2009 (a proceeding in which Louise Murphy is the applicant) and NSD 690 of 2010 (a proceeding in which William Lawson is the applicant), by which the applicant in each proceeding seeks leave to amend their statement of claim. BACKGROUND The respondent to each proceeding, Westpac Banking Corporation (Westpac), initially opposed the grant of leave on various grounds. After the motions were partially heard on 11 February 2011, and at the request of the applicants, I adjourned the motions for further hearing on 22 March 2011 to give the applicants an opportunity to address the substance of Westpac’s objections by proposing further amendments to the statements of claim and, in Ms Murphy’s case, to adduce evidence relevant to her application to withdraw certain admissions as part of the proposed amendments. I also ordered the applicant in each matter to pay Westpac’s costs of and incidental to the notice of motion up to and including the hearing on 11 February 2011. By the conclusion of the hearing on 22 March 2011 it became apparent that, leaving aside its position on the withdrawal of admissions by Ms Murphy, many of Westpac’s objections had been resolved by the applicants’ further proposed amendments. It became further apparent that Westpac’s remaining objections to the amendments are founded on its view that some of the proposed pleadings are insufficiently particularised, and thus that any grant of leave should be on terms that the applicants provide adequate particulars of those pleadings. MS MURPHY – WITHDRAWAL OF ADMISSIONS As many of the remaining objections are common to the two proceedings it is convenient to deal first with Ms Murphy’s application to withdraw admissions. The applicable principles may be summarised as follows: – (i) good cause must be shown to withdraw an admission, by way of a “sensible explanation… based on evidence of a solid and substantial character” (Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579; [2000] FCA 1732 (Murran Investments) at [45], citing Celestino v Celestino [1990] FCA 449 at 8-9), (ii) good cause may be established if, for example, the admission is contrary to the facts, was made by mistake or was made “without due consideration of material matters” (Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of NSW, Santow J, 16 October 1996) cited in SLE Worldwide Australia Pty Ltd v Wyatt Gallagher Bassett Pty Ltd [2005] NSWSC 816 at [55]), and (iii) even if good cause is shown, the prejudice to the other party may be such as to warrant the refusal of leave to withdraw an admission (see Murran Investments). Ms Murphy’s statement of claim as filed pleaded that: – (i) at a meeting on 19 December 2008, Paul Harvey gave Ms Murphy a deed of release and told her she had to sign it to receive her redundancy entitlements (at [18]), (ii) Ms Murphy signed the deed of release (at [19]), and (iii) when Ms Murphy signed the deed of release Westpac was aware of a series of matters including, for example, that Ms Murphy was not required to sign the deed of release to obtain her redundancy entitlements, which made Westpac’s conduct in demanding that she do so unconscionable (at [20]). Relief from the deed of release was sought on various grounds. In its defence, Westpac admitted that Ms Murphy was requested to sign a deed of release but otherwise denied or did not admit the allegations.

Evidence

Evidence Before The Court

No or inconsistent evidence (Murphy 3(b)(ii), 3(c)(ii) and 39 and Lawson 3(b)(ii), 3(c)(ii) and 48): Westpac contends that there is no evidence to support the conversations detailed in the proposed amendments to Ms Murphy’s statement of claim, and that there are inconsistencies between the pleadings in Mr Lawson’s statement of claim and Mr Lawson’s own affidavit evidence. Counsel for Ms Murphy and Mr Lawson identified the evidence relied upon to support the pleadings and submitted that this evidence was sufficient. Westpac’s contention is not a proper basis upon which to refuse or impose conditions on the grant of leave in relation to the proposed amendments. The evidence either will or will not sustain the pleaded case. Nothing in the circumstances of these proceedings provides a basis for refusing or conditioning the grant of leave on the basis of Westpac’s objections on this basis. No particulars of amounts claimed (Murphy 21, 25, 32 and 104 and Lawson 27, 35, 42, 97 and 124): Westpac contends that the pleadings are insufficient in that compensation for loss or damage is claimed without any identification of the amounts sought. According to Westpac, the fact that the amounts may have to be changed subsequently by reference to the evidence as it emerges is beside the point. The applicants are required to do their best to identify the amounts claimed in any amended pleading so Westpac can know the case it has to meet. Counsel for Ms Murphy and Mr Lawson submitted that the amounts claimed could not presently be quantified and would be able to be quantified only with the assistance of the Court. The submissions for the applicants on this point are unpersuasive. The applicants allege that Westpac breached certain obligations to them by not paying certain amounts to which they were entitled, and that the breach of these obligations caused them loss or damage. Other than (perhaps) the claim for compensation for loss of reputation, nothing in the nature of the claims suggests they are incapable of precise calculation. The calculation may have to be amended or alternatives may have to be presented once the evidence emerges. But Westpac is entitled to know the amounts the applicants presently claim. Particulars of those amounts will need to be provided. 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.

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.