Willis Australia Group Services Pty Ltd v Mitchell-Innes (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Willis Australia Group Services Pty Ltd v Mitchell-Innes (No 2) [2016] NSWCA 43
Hearing dates:	On the papers
Decision date:	15 March 2016
Before:	Macfarlan JA; Ward JA; Leeming JA
Decision:	The parties are directed to file in the Registry a minute of judgment to give effect to these reasons.
Catchwords:	PRACTICE AND PROCEDURE – principal judgment on appeal delivered previously – consequential findings concerning quantification of damages and costs orders now made
Category:	Procedural and other rulings
Parties:	Willis Australia Group Services Pty Ltd (First Appellant) Willis Australia Ltd (Second Appellant) Donald Mitchell-Innes (Respondent)
Representation:	Counsel: J Kirk SC/M Seck (Appellants) J Pearce (Respondent)   Solicitors: Allens (Appellants) Paul Murphy & Associates (Respondent)
File Number(s):	CA 2014/376443
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2014] NSWDC 250 Date of Decision: 8 December 2014 Before: P Taylor SC DCJ File Number(s): DC 2013/148638

Judgment

1. THE COURT: The Court delivered judgment on this appeal on 2 December 2015 ([2015] NSWCA 381). In accordance with directions made on that date, the parties filed and served written submissions concerning the quantification of damages and the costs orders that should be made. The issues between the parties that emerged are as indicated below.

2. Through inadvertence no reference was made in the Court’s principal judgment to the second appellant which, whilst not Mr Mitchell-Innes’ employer, was a related company for whom he performed services. The judgment and orders below were against both appellants and the written submissions on appeal have proceeded upon the basis that that will also be the case with the judgment and orders to be entered and made on appeal. As a result no distinction is drawn in what follows between the roles of the two appellants.

Clawback of retention award payments

3. In its principal judgment the Court held that the appellants’ summary termination of Mr Mitchell-Innes’ employment was in breach of his contract of employment. However it also held that, if that summary dismissal had not occurred, the appellants would have terminated his employment by giving him six months’ notice, as they were entitled to do under his contract. On that basis, lawful termination of the contract would have taken effect on 9 May 2013. In these circumstances, the damages to which Mr Mitchell-Innes is entitled as a result of his wrongful summary dismissal must take into account the fact that, but for that wrongful dismissal, his employment would in any event have been terminated lawfully six months later. This requires that any repayments that Mr Mitchell-Innes would have been obliged to make to the appellants at the end of that six month period be deducted from his damages.

4. In 2011 the appellants made a retention award payment of $50,000 to Mr Mitchell-Innes and in 2012 they made a payment of $45,000. These payments were made upon the basis that Mr Mitchell-Innes would repay an identified proportion of them if…