FEDERAL COURT OF AUSTRALIA
Westpac Banking Corporation v Lenthall [2019] FCAFC 34
Appeal from: Lenthall v Westpac Life Insurance Services Limited [2018] FCA 1422 File number: NSD 1880 of 2018 Judges: ALLSOP CJ, MIDDLETON AND ROBERTSON JJ Date of judgment: 1 March 2019 Catchwords: REPRESENTATIVE PROCEEDINGS – representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) – where primary judge determined making of common fund order appropriate to do justice in the proceedings – whether s 33ZF authorises the Court to make common fund order –– relevant considerations – width and purpose of s 33ZF – nature and purpose of common fund order – principle of legality – construction of Part IVA
CONSTITUTIONAL LAW – JUDICIAL POWER – whether power to make common fund order part of or incidental to exercise of judicial power by the Court – conferral of power by Parliament – capacity of the Court to balance competing interests and rights – incidental resolution of legal rights
CONSTITUTIONAL LAW – ACQUISITION ON JUST TERMS – whether common fund order amounts to acquisition of property other than on just terms – nature of power – order directed toward appropriate reward for funder upon bearing of costs and risk – whether nature of benefit to group members proprietary
PRACTICE AND PROCEDURE – whether primary judge erred in exercise of discretion
Legislation: Acts Interpretation Act 1901 (Cth) s 15A
Australian Constitution s 51(xxxi), 71, 76, 77
Federal Court of Australia Act 1976 (Cth) ss 5, 21, 22, 23, 33E, 33V, 33X, 33Z, 33ZA, 33ZB, 33ZF, 33ZJ
Re-establishment and Employment Act 1945-1952 (Cth) ss 27, 28
Cases cited: Airservices Australia v Canadian International Airlines Ltd [1999] HCA 62; 202 CLR 133
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1
Attorney-General (Cth) v Alinta Limited [2008] HCA 2; 233 CLR 542
Australian Tape Manufacturersv Commonwealth [1993] HCA 10; 176 CLR 480
Bank of New South Wales v Commonwealth [1948] HCA 7; 76 CLR 1
Blairgowrie Trading Ltd v Allco Finance Group Ltd (Receivers & Managers Appointed) (In Liq) (No 3) [2017] FCA 330; 343 ALR 476
Campbells Cash and Carry v Fostif Pty Ltd [2006] FCA 41; 229 CLR 386
CMA CGM SA v The Ship ‘Chou Shan’ [2014] FCAFC 90; 224 FCR 384
Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141
Falcke v Gray (1850) 4 Drew 651; 62 ER 250
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- Case
- [2019] FCAFC 34
- Decision Date
CaseChat Overview and Summary
The court examined the construction and purpose of section 33ZF and the nature of a common fund order, which is intended to reward the funder for bearing costs and risks. The court found that the power to make a common fund order was part of the exercise of judicial power and was not an acquisition of property on unjust terms. The court held that the primary judge did not err in exercising their discretion to make a common fund order, as it was appropriate to do justice in the proceedings.
The appeal was dismissed, and Westpac Banking Corporation was ordered to pay the respondents’ costs of the application for leave to appeal and of the appeal. JustKapital Litigation Pty Limited was granted leave to intervene and appeal, and leave to appeal was granted on the grounds set out in the notice of appeal. The orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. Leave be granted nunc pro tunc for JustKapital Litigation Pty Limited to intervene in the application for leave to appeal and appeal.
2. Leave be granted to appeal on the grounds set out in the notice of appeal contained in the Combined Appeal Book at pp 90–93, dispensing with the need for the filing of any further document.
3. The appeal be dismissed.
4. The appellants pay the respondents’ costs of the application for leave to appeal and of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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