Westpac Banking Corporation v Wittenberg (No 2)

[2016] FCAFC 49

FEDERAL COURT OF AUSTRALIA

Westpac Banking Corporation v Wittenberg (No 2) [2016] FCAFC 49

Appeal from:

Murphy v Westpac Banking Corporation [2014] FCA 1104

Murphy v Westpac Banking Corporation (No 2) [2015] FCA 266

File number(s):

NSD 405 of 2015

Judge(s):

BUCHANAN, MCKERRACHER AND WHITE JJ

Date of judgment:

30 March 2016

Catchwords:

APPEAL – slip rule – inadvertent error made in orders on appeal – orders varied

Cases cited:

Westpac Banking Corporation v Wittenberg [2016] FCAFC 33

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

3

ORDERS

NSD 405 of 2015

BETWEEN:

WESTPAC BANKING CORPORATION ACN 007 457 141

Appellant

AND:

COREY WITTENBERG

Respondent

AND BETWEEN:

COREY WITTENBERG

Cross-Appellant

AND:

WESTPAC BANKING CORPORATION ACN 007 457 141

Cross-Respondent

JUDGES:	BUCHANAN, MCKERRACHER AND WHITE JJ
DATE OF ORDER:	30 MARCH 2016

THE COURT ORDERS THAT:

1.The orders made by the Full Court on 14 March 2016 with respect to NSD 405 of 2015 Westpac appeal re Wittenberg / Wittenberg cross-appeal be set aside and in lieu thereof it be ordered, with effect from 14 March 2016, as follows:

1.The appeal be allowed.

2.The orders made in proceedings NSD 90 of 2010 on 27 March 2015 be set aside and in lieu thereof it be ordered that:

(a)Judgment for the applicant in the amount of $50,000 plus interest from 14 November 2008 to 2 April 2012 in the amount of $14,350.41.

(b)Judgment for the applicant be ordered in the sum of $60,000 plus interest on that amount from 27 February 2009 to 27 March 2015 at the rates prescribed by section 51A of the Federal Court of Australia Act 1976 (Cth).

(c)The respondent pay 25% of the applicant’s costs of the proceedings in NSD 90 of 2010, as taxed if not agreed.

3.The respondent to the appeal pay the appellant’s costs of the appeal, as taxed if not agreed.

4.The cross-appeal be dismissed with costs, as taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SUPPLEMENTARY REASONS FOR JUDGMENT

THE COURT:

1. Since judgment was delivered in this matter (Westpac Banking Corporation v Wittenberg [2016] FCAFC 33), a clerical error has been discovered which requires correction.

2. In the case of each employee an order was made in the proceedings at first instance reflecting the concession by Westpac Banking Corporation (“Westpac”) that the retention incentive payment should be made, together with interest on that amount to 2 April 2012.  Some of those orders were made by Jagot J on 2 April 2012, and the others were made by the primary judge on 27 March 2015.  No party sought that those orders be disturbed on the appeal.

3. Inadvertently, the orders made on the appeal in NSD 405 of 2015 (Westpac appeal re Wittenberg) set aside an earlier order to that effect.  That should be corrected by making the order which accompanies this judgment.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan, McKerracher and White.

Associate:

Dated:       30 March 2016