FEDERAL COURT OF AUSTRALIA Stratton Finance Pty Limited v Webb (No 2) [2014] FCAFC 161 Citation: Stratton Finance Pty Limited v Webb (No 2) [2014] FCAFC 161 Appeal from: Webb v Stratton Finance Pty Ltd [2013] FCCA 2197 Webb v Stratton Finance Pty Ltd [2014] FCCA 924 Parties: STRATTON FINANCE PTY LIMITED v JOHN WEBB File number: NSD 374 of 2014 Judge(s): ALLSOP CJ, SIOPIS J AND FLICK J Date of judgment: 1 December 2014 Catchwords ORDERS AND COSTS – no question of principle Legislation: Fair Work Act 2009 (Cth) Workplace Relations Act 1996 (Cth) Date of hearing: 08 August 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Appellant: Mr M Pesman SC Solicitor for the Appellant: Norton Rose Fullbright Counsel for the Respondent: Mr M White SC and Mr C Cassimatis Solicitor for the Respondent: Attwood Marshall Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 374 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: STRATTON FINANCE PTY LIMITED Appellant AND: JOHN WEBB Respondent JUDGE: ALLSOP CJ, SIOPIS J AND FLICK J DATE OF ORDER: 1 December 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The cross-appeal be allowed. 2. The appeal in respect of penalties and costs be allowed in part. 3. Order 1 made by the Federal Circuit Court on 2 April 2014 and orders 1 and 3 made by the Federal Circuit Court on 9 May 2014 be set aside, and, in lieu thereof, in addition to the subsisting declarations 1-8 made by the Federal Circuit Court on 2 April 2014, and in addition to order 2 made by the Federal Circuit Court on 9 May 2014, it be ordered that: (a) The appellant pay the respondent $117,764.49 on account of unpaid commission, within 14 days. (b) The appellant pay the respondent superannuation on the amount set out in order 3(a) (by payment to AMP Flexible Lifetime Super) in the amount of $10,598.80 within 14 days. (c) The appellant pay the respondent $58,630.00 in penalties for contravening the Fair Work Act 2009 (Cth) and the Workplace Relations Act 1996 (Cth) as set out at [76] of the judgment dated 2 September 2014. (d) The appellant pay the respondent interest (calculated as at 17 October 2014) on the amounts in 3(a) and 3(b) in the sum of $44,899.12 with a daily rate thereafter of $41.82. (e) The appellant pay the respondent's costs of the proceedings before the Federal Circuit Court on: (i) an indemnity basis in respect of the costs incurred for claims made by the respondent under the Fair Work Act 2009 (Cth); and (ii) on a party/party basis in respect of all other costs. 4. The appellant pay the respondent's costs of the cross-appeal as assessed or agreed. 5. The appellant pay one half of the respondent's costs of the appeal as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 374 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: STRATTON FINANCE PTY LIMITED Appellant AND: JOHN WEBB Respondent JUDGE: ALLSOP CJ, SIOPIS J AND FLICK J DATE: 1 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT 1 On 2 September 2014, the Court published reasons for judgment and made orders requiring the parties to file a minute of order consistent with a form and structure that was identified. The parties have been able to agree on the form of orders, other than as to costs, both of the appeal and of the proceedings below, and as to one qualification to the order for payment. 2 The first matter is the question of the form of orders as to payment. The parties are agreed on the basic form – that it is an order for payment of a sum of money rather than judgment. Given this agreement, there is no call to make any comment. The respondent (Mr Webb) seeks an order that the relevant moneys be paid within 14 days. Given the passage of time, this is just. 3 As to the costs below, at [79]-[82] of our earlier reasons we were of the view that the costs order in relation to the claim under the Fair Work Act 2009 (Cth) should be that the appellant (Stratton) pay indemnity costs, but party/party costs on the contract claim. The respondent sought orders that proportioned the costs. We have no basis to make that judgment. The costs below will be as proposed by the appellant. 4 There are disputes as to the costs of the appeal (as opposed to the cross-appeal). The parties are agreed that the appellant (Stratton) pay the respondent's (Mr Webb's) costs of the cross-appeal as assessed or as agreed. As to the costs of the appeal, the appellant (Stratton) seeks an order that the respondent (Mr Webb) pay one-third of the appellant's costs; Mr Webb seeks an order that Stratton pay 80% of his costs. 5 As to the costs of the appeal, each party had victories. The major victory for the appellant was in the penalty, but much of that reduction came from an error of the trial judge that was conceded by Mr Webb. The contractual claim concerning clawback took up most of the time of the appeal. In this respect, the appellant was substantially unsuccessful. There was some limited theoretical success on an argument raised by the Court, but, of itself, it raises apparently no monetary consequence. Further, part of the appeal was abandoned. 6 Looking at the totality of the issues on appeal, including the abandoned issues, the matters raised by the Court, and the reasons for the reduction in the penalties, we are of the view that a just outcome for the costs of the appeal would be that the appellant pay 50% of the respondent's costs of the appeal. 7 The orders that we would make are as follows: 1. The cross-appeal be allowed. 2. The appeal in respect of penalties and costs be allowed in part. 3. Order 1 made by the Federal Circuit Court on 2 April 2014 and orders 1 and 3 made by the Federal Circuit Court on 9 May 2014 be set aside, and, in lieu thereof, in addition to the subsisting declarations 1-8 made by the Federal Circuit Court on 2 April 2014, and in addition to order 2 made by the Federal Circuit Court on 9 May 2014, it be ordered that: (a) The appellant pay the respondent $117,764.49 on account of unpaid commission, within 14 days. (b) The appellant pay the respondent superannuation on the amount set out in order 3(a) (by payment to AMP Flexible Lifetime Super) in the amount of $10,598.80 within 14 days. (c) The appellant pay the respondent $58,630.00 in penalties for contravening the Fair Work Act 2009 (Cth) and the Workplace Relations Act 1996 (Cth) as set out at [76] of the judgment dated 2 September 2014. (d) The appellant pay the respondent interest (calculated as at 17 October 2014) on the amounts in 3(a) and 3(b) in the sum of $44,899.12 with a daily rate thereafter of $41.82. (e) The appellant to pay the respondent's costs of the proceedings before the Federal Circuit Court on: (i) an indemnity basis in respect of the costs incurred for claims made by the respondent under the Fair Work Act 2009 (Cth); and (ii) on a party/party basis in respect of all other costs. 4. The appellant pay the respondent's costs of the cross-appeal as assessed or agreed. 5. The appellant pay one half of the respondent's costs of the appeal as assessed or agreed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, Justice Siopis and Justice Flick. Associate: Dated: 1 December 2014