Westpac Banking Corporation v Lenthall [2019] FCAFC 34

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