Sutton v Be Australia WD Pty Ltd (No 4)

Supreme Court

New South Wales

Medium Neutral Citation:

Sutton v BE Australia WD Pty Ltd (No 4) [2017] NSWSC 1123

Hearing dates:

25 November 2016; 9 and 27 February 2017; 29 June 2017 (further written submissions)

Date of orders:

24 August 2017

Decision date:

24 August 2017

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following orders and directions all of which shall require compliance within 21 days of the publication of this judgment:

 

(1) The plaintiff shall file in the form of short minutes of order or a schedule reflecting the following:

 

(a) The quantification of compensation payable by the first defendant under the termination and bullying and harassment grounds in accordance with the terms of this judgment;

 

(b) The application of interest to that amount in accordance with the determination as to the approach to interest set out under the corresponding heading of this judgment;

 

(2) The plaintiff has liberty to file any final submissions as to the implications of the settlement with the second defendant. Those submissions shall be limited to the question of any deduction arising from the settlement with the second defendant and may address the issue of apportionment between the first the second defendants (after the deduction of costs referrable to the proceedings against the second defendant).

 (3) The plaintiff shall file any application as to costs against the first defendant and any submissions in support thereof.

Catchwords:

UNFAIR CONTRACT – ex parte proceedings – claim for money orders – notice – humiliation, stress and reputation damage – interest – implications of settlement with co-defendant – directions

Legislation Cited:

Trade Practices Act 1974 (Cth)
Industrial Relations Act 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115
King v State Bank of New South Wales (No 2) (2002) 126 IR 407; [2002] NSWIRComm 353
King v State Bank of New South Wales [2000] NSWIRComm 229
State of New South Wales v Banas (2004) 137 IR 63; [2004] NSWIRComm 255
Walker v Citigroup Global Markets Australia Pty Limited (2006) 233 ALR 697; [2006] FCAFC 101
Westfield Holdings v Adams (2001) 114 IR 241; [2001] NSWIRComm 293

Category:

Costs

Parties:

Mary Sutton (plaintiff)
BE Australia WD Pty Ltd (first defendant)

Representation:

Counsel:
M Gibian (plaintiff) (ex parte)

  Solicitors:
Gilbert + Tobin (plaintiff)

File Number(s):

2016/26450

Judgment

1. HIS HONOUR: By a second further amended summons Mary Sutton (“the plaintiff”) sought declaratory relief and monetary payments, pursuant to s 106(1) and (5) of the Industrial Relations Act 1996 (NSW) (hereafter referred to as “the Act”), against BE Australia WD Pty Ltd (“the first defendant”) and Phillip James Davidson (“the second defendant”) regarding work performed by the plaintiff for the first defendant. The proceedings against the second defendant were dismissed upon the basis of consent orders, without admission of liability, for the payment of a sum of $350,000 inclusive of costs.

2. The balance of the matter concerning the first…