Herbert v American Express Australia Limited - [2017] NSWSC 367

Supreme Court

New South Wales

Medium Neutral Citation: Herbert v American Express Australia Limited [2017] NSWSC 367
Hearing dates: 27 March 2017
Date of orders: 07 April 2017
Decision date: 07 April 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
See [122]

Catchwords:
PRACTICE AND PROCEDURE – summary dismissal – no reasonable cause of action disclosed – proceedings vexatious

PRACTICE AND PROCEDURE – whether witness immunity applies in proceedings in Fair Work Commission – not necessary to decide

CONSUMER LAW – giving evidence in proceedings in Fair Work Commission not “in trade and commerce”

JURISDICTION – Federal Court has exclusive jurisdiction under Fair Work Act 2009 – no right of review in Supreme Court of decisions of Fair Work Commission
INSURANCE LAW – when entitlement to benefit depends on opinion of insurer – obligation of insured to provide information to enable opinion as to relevant matter to be formed – no breach by insurer when information not provided by insured
Legislation Cited: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth))
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Fair Trading Act 1987 (NSW)
Fair Work Act 2009 (Cth)
Insurance Contracts Act 1984 (Cth)
Judicial Officers Act 1986 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Trade Practices Act 1974 (Cth)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:
Baltic Shipping Company v Dillon (1993) 176 CLR 344
Cabassi v Vila (1940) 64 CLR 130
Cannon v Tahche (2002) 5 VR 317
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54
Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Edwards v The Hunter Valley Co-Op Dairy (1992) 7 ANZ Ins Cas 61-113
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Henderson v Henderson (1843) 67 ER 313
Herbert v American Express Australia Ltd [2016] FWC 1398
Herbert v Workers Compensation Commission [2016] NSWCATAD 28
Herbert v American Express Ltd & Ors [2016] NSWCATAP 47
Herbert v American Express Australia Ltd & Ors (No. 2) [2016] NSWCAT
James v Medical Board of South Australia and Keogh (2006) 95 SASR 445; [2006] SASC 267
Little v Law Institute of Victoria (No. 3) [1990] VR 257
Maleknia v University of Sydney [2016] NSWCA 108
Maxwell v Highway Hauliers Pty Ltd (2014) 252 CLR 590; [2014] HCA 33
McGuirk v University of New South Wales [2009] NSWSC 1424
Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180
Pearson v Fremantle Harbour Trust (1929) 42 CLR 320
Pharm-a-care Laboratories Pty Ltd v Commonwealth (No.3) (2010) 267 ALR 494; [2010] FCA 361
Port of Melbourne Authority v Anshun (1981) 147 CLR 589
Rawlinson v Rice [1998] 1 NZLR 454
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289; (2015) 18 BPR 35,471
Tal Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at 454
Tampion v Anderson [1973] VR 321
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Yarraford Pastoral Co Pty Ltd v Registrar of Downing Centre Local Court [2013] NSWSC 293
Category: Procedural and other rulings
Parties: Denise Faasegi Herbert (Plaintiff)
American Express Australia Limited (1st Defendant)
Mercer Superannuation (Australia) Limited as trustee for the Mercer Super Trust (2nd Defendant)
The National Mutual Life Association of Australasia Limited (3rd Defendant)
New South Wales Workers Compensation Commission (4th Defendant)
Jeri Thomas (5th Defendant)
Alex Vichidvongsa (6th Defendant)
Sharon Menezes (7th Defendant)
Sorine Martinolli (8th Defendant)
Anshu Kohli (9th Defendant)
Representation:
Counsel:
Plaintiff (by leave, represented by Mr Herbert)
J White/D Habashy (1st, 8th and 9th Defendants)
B Koch (2nd Defendant)
SJ Walsh (3rd, 5th and 6th Defendant)
J Davidson (4th Defendant)
Solicitors:
Dibbs Barker (1st, 8th and 9th defendants)
Lander & Rogers (2nd Defendant)
Turks Legal (3rd, 5th and 6th Defendants)
Crown Solicitor (4th Defendant)

File Number(s): 2016/361971

Judgment

Introduction

By statement of claim filed on 2 December 2016 Denise Herbert, the plaintiff, claimed various sums including: loss of salary; retrenchment monies; Total and Permanent Disabilities monies; lump sum for whole body impairment; an amount for the first 13 weeks following injury; an amount for the weeks 13-130 following injury; and the sum of $5 million for exemplary damages.
These claims were made against seven defendants: American Express Australia Ltd (Amex), the first defendant; Mercer Superannuation (Australia) Limited (Mercer), the second defendant; The National Mutual Life Association of Australasia Ltd (AMP), the third defendant; New South Wales Workers Compensation Commission (the Workers Compensation Commission), the fourth defendant; Jeri Thomas, the fifth defendant; Alex Vichidvongsa, the sixth defendant; and Sharon Menezes, the seventh defendant.
On 27 January 2017, the plaintiff filed an amended statement of claim which corrected the name of Mercer and which added two further defendants: Sorine Martinolli, the eighth defendant; and Anshu Kohli, the ninth defendant.
Each party, or group of parties, filed a notice of motion. The five motions, which were heard together, were as follows.

By motion filed on 2 December 2016, the plaintiff sought the immediate release of her retrenchment monies, being $12,655.23; and her Total and Permanent Disabilities (TPD) monies, being $137,224.36. This motion was amended at the hearing on 27 March 2017 to reduce the amount claimed by way of retrenchment monies from $12,655.23 to $6,000. The amended notice of motion sought other consequential relief, to which reference will be made at the conclusion of these reasons.

By motion filed on 7 December 2016, Amex sought summary dismissal of the proceedings as against it pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4; or, in the alternative, that the statement of claim as against it be struck out pursuant to UCPR r 14.28.

By motion filed on 22 December 2016, Mercer sought summary dismissal of the proceedings as against it pursuant to UCPR r 13.4; or, in the alternative, that the statement of claim as against it be struck out pursuant to UCPR r 14.28; and that a notice to produce addressed to Mercer dated 16 December 2016 be set aside.

By motion filed on 23 December 2016 on behalf of AMP, Mr Thomas and Mr Vichidvongsa (the AMP parties), an order was sought that the statement of claim be struck out pursuant to UCPR r 14.28 as against Mr Thomas and Mr Vichidvongsa and that the notice to produce addressed to the AMP parties be set aside. On 27 January 2017, the AMP parties filed an amended notice of motion, which added to the relief already claimed, summary dismissal pursuant to UCPR r 13.4 of the proceedings against AMP; or strike out pursuant to UCPR r 14.28 of the pleading against AMP; or a permanent stay pursuant to s 67 of the Civil Procedure Act 2005 (NSW) on the ground that the claim is res judicata in accordance with the extended rule in Henderson v Henderson (1843) 67 ER 313 and Port of Melbourne Authority v Anshun (1981) 147 CLR 589. In the alternative, the AMP parties sought summary dismissal or strike out of certain pleadings on the ground that they disclosed no reasonable cause of action, were prejudicial and embarrassing and were an abuse of process.

By motion filed on 30 January 2017, the Workers Compensation Commission sought an order for summary dismissal of that part of the proceedings; or strike out of that part of the statement of claim, in so far as the plaintiff claimed damages against the Workers Compensation Commission. It also sought an order that the notice to produce dated 16 December 2016 addressed to the Workers Compensation Commission be set aside.

Because of the overlap in the notices of motion, I propose to set out the background, evidence and submissions relating to all notices of motion, before considering whether any applicant is entitled to the relief claimed.

The Background

By reason of the relief sought in the defendants’ motions, it is not appropriate to make factual findings. However, the evidence adduced on the motions (by way of affidavit or documents tendered) provided a framework of objective facts against which the applications, including the plaintiff’s application for payments, are to be considered.

The plaintiff’s employment

By letter of offer dated 28 February 2012, Amex offered employment to the plaintiff in the full-time permanent position of Customer Care Professional – Credit Services. The plaintiff accepted the offer on 5 March 2012 and commenced employment in that position on 1 March 2012.

The plaintiff’s superannuation benefits

The product disclosure statement issued by Mercer

As an employee of Amex, the plaintiff was entitled to have her superannuation benefits administered by Mercer through the Mercer Super Trust. The Product Disclosure Statement issued by Mercer on 1 July 2012 disclosed, in paragraph 8, that:

“If eligible, the insurance cover generally available under your plan for Permanent employees and Contractors is:
death (including terminal illness) and
total and permanent disablement (TPD) cover and
total but temporary disablement (TTD) cover.”

Mercer’s Guide to Claiming a Total and Permanent Disablement Payout

Mercer issued a document to employees covered by the Mercer Super Trust, which was entitled “Guide to Claiming a Total and Permanent Disablement (TPD) Payout” (the Mercer Guide). On page 6 of the Mercer Guide, the following appears:

“Your super payout
You’ll receive a super payout:
equal to your super account balance – when you leave your employer by resigning, retiring, if you’re retrenched or you decide to exercise your choice (refer to “Choice of Fund” later in this section for more details about exercising choice).
equal to your super account balance PLUS any insurance amount received – if you die or become totally and permanently disabled
If you become totally but temporarily disabled you may be eligible to receive a monthly benefit.
But remember, it’s most likely that your super will be ‘preserved’, which means you won’t be able to access it until you satisfy one of the conditions as set down in superannuation law for accessing your super. See ‘Super and preservation’ later in this section for more details.
See the Tax & super section for details on how tax will impact on your super payout.”

A similar point appears on page 7, as follows:

“Super payout
As a member of the Mercer Super Trust you’ll be entitled to a super payout on retiring, resigning or being retrenched by your employer. You and/or your dependants may also be entitled to an additional insured payout on death or total permanent disablement. See the Death & disability cover section for further details.”

Consolidated Designated Rules for the Mercer Master Fund

Clause 1.1 of the Consolidated Designated Rules for the Mercer Master Fund (the Mercer Rules) relevantly contained the following definitions:

“‘Member Account’ means an account established under rule 10.1.
‘Member Account Balance’ means in relation to a Member the value of the Member’s Member Account at any particular time.
. . .
‘Temporary Total Disablement’, subject to Superannuation Law, in respect of an Eligible Member:
(a) if there is a relevant policy of insurance in force – means disablement which the insurer determines qualifies as temporary disablement under that policy;
. . .
‘Total and Permanent Disablement’ subject to Superannuation Law, in respect of an Eligible Member:
(a) if there is a relevant policy of insurance in force – means disablement which the insurer determines qualifies as permanent disablement under that policy;
. . .”

Clause 14.4(a)(ii)(C)(I) of the Mercer Rules provided that if the risk was insured, the Trustee (Mercer) was obliged to reduce any benefit which was otherwise payable on the disablement of a Member concerned if the insurer (AMP) did not admit or pay all of a claim in respect of a Member.
The Schedule for the Mercer SmartSuper Plan (Appendix 1 of the Mercer Rules) defined the term “Insured Benefit” in S1 as follows:

“‘Insured Benefit’ means in relation to an Eligible Member, subject to clause S7, the amount of any insurance effected by the Trustee in respect of the Member and paid to the Trustee by the insurer in the event of the death or Total and Permanent Disablement (as applicable) of the Member.

The provision for TPD benefits, S5.1, provided as follows:

“S5.1   Upon the death or Total and Permanent Disablement of an Eligible Member on or before attaining age 65 a lump sum benefit is payable equal to the sum of:
(a)   the Member Account Balance; and
(b)   the Insured Benefit, if any.”

The policy of insurance for the plaintiff’s superannuation benefits

The insurer for the Mercer Super Trust was, at the relevant time, The National Mutual Life Association of Australasia Ltd (which later became AMP). The relevant policy document, AXA’s Group Insurance Policy document for the Mercer Super Trust, effective 1 July 2012, (the Policy) provided that there were two types of insurance cover provided under the Policy: group life cover, which provided benefits on the death or TPD of a person insured; and total but temporary disability cover (TTD). The Policy provided for a waiting period of 90 days for TTD benefits (page 16).
The expression “total and permanent disablement” was defined at pages 13-14 of the Policy to mean, relevantly:

“Part (a) Unlikely to work
When all of the following apply to the person insured:
(i) the person insured has been continuously absent from employment through injury or illness for the waiting period; and
(ii) after considering all evidence which we believe is necessary to reach our view, in our opinion the person insured has become incapacitated to such an extent as to render the person insured unlikely ever to engage in, or work for reward in, any occupation or work for which he or she is reasonably qualified by education, training or experience.”

I was informed that there was no issue about (i) above and that the only issue relates to (ii) above.
Part A of the Policy dealt with TPD and death benefits; whereas Part B dealt with TTD benefits. Clause A7.1 imposed an obligation on the person insured when making a claim, as follows:

“We may also request that the person insured . . . provides:
. . .
(c)   information about:
. . .
(ii)   the medical condition and history of the person insured (as applicable);
(iii)   the person insured’s financial affairs (as applicable);
. . .
When we ask the person insured . . . the person insured . . . must give us that information, and, if we request, the person insured must allow . . . herself to be interviewed or examined. In this clause, information includes an authority to obtain and/ or provide information from or to another source.”

As the trustee of the Mercer Super Trust, Mercer was also the owner of the Policy. The relevance of this matter for present purposes is that Mercer was the party which corresponded with the AMP, the insurer, in respect of any claim for TTD or TPD benefits made by an employee, or former employee, of Amex, such as the plaintiff.

The plaintiff’s stroke and her dismissal

On 5 August 2014 the plaintiff suffered a stroke which resulted in a degree of disability. On 13 August 2014 an incident report form was filled in regarding the incident.
On 29 July 2015 Amex notified the plaintiff that she had been dismissed on 2 September 2015 on the grounds of redundancy.

The plaintiff’s claim for unfair dismissal in the Fair Work Commission

The plaintiff brought proceedings in the Fair Work Commission, claiming relief on the basis that her dismissal was unfair under s 394 of the Fair Work Act 2009 (Cth). On 8 December 2015 there was a hearing in the Fair Work Commission before Deputy President Lawrence in the course of which Amex presented its case that the plaintiff was dismissed on the basis of a genuine redundancy. The transcript of proceedings, which was in evidence on the motions, revealed that Amex called two witnesses: Ms Martinolli and Ms Kohli. Both witnesses were sworn and, on oath, adopted their witness statements, which were dated 6 November 2015 and 9 November 2015 respectively. Mr Herbert, who also appeared on behalf of the plaintiff in the Fair Work Commission, had the opportunity to cross-examine both witnesses. Mr Herbert did not challenge the correctness of any matter in the witness statements. His cross-examination was confined to obtaining confirmation from each of them that the team to which the plaintiff belonged when working at Amex was known as the “past due team”.
By decision published on 7 March 2016 Deputy President Lawrence found that the plaintiff’s dismissal was a genuine redundancy pursuant to s 389 of the Fair Work Act and dismissed her claim for relief accordingly: Herbert v American Express Australia Ltd [2016] FWC 1398 (the Fair Work Commission Decision).

The plaintiff’s claim for superannuation benefits

On 14 October 2014 the plaintiff lodged a claim for the payment of TTD benefits, which was forwarded by Mercer to AMP, which accepted the claim. As the Policy provided for a waiting period of 90 days (from the date of the relevant incident, being her stroke) the plaintiff did not become entitled to TTD benefits until November 2014.

Proceedings in New South Wales Civil and Administrative Tribunal relating to superannuation benefits

The first New South Wales Civil and Administrative Tribunal proceedings

On 22 December 2014 the plaintiff commenced proceedings 14/61687 in New South Wales Civil and Administrative Tribunal (NCAT) against Amex, Mercer and AMP by filing a “Consumer Claim Application about Goods and Services”. She alleged that the conduct of Amex, Mercer and AMP in refusing to advance TTD benefits before the expiry of the waiting period was a breach of contract and unconscionable within the meaning of cl 21(1) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) and claimed damages of $74,400.
On 31 January 2015 the plaintiff amended her claim by reducing the amount claimed to $32,400.
The respondents contended that NCAT did not have jurisdiction to entertain the claim. On 18 March 2015 NCAT decided that it had jurisdiction to hear and determine the plaintiff’s claim on the merits. NCAT ultimately dismissed the plaintiff’s application on substantive grounds on 1 May 2015 (the May 2015 NCAT Decision).
The plaintiff appealed from the May 2015 NCAT Decision to the Appeal Panel of NCAT. She added claims for breach of contract; breach of s 54 of the Insurance Contracts Act 1984 (Cth) and claims for misleading and deceptive conduct. On 23 February 2016 the Appeal Panel dismissed her appeal following a consideration of the merits: Herbert v American Express Ltd & Ors [2016] NSWCATAP 47 (the February 2016 NCAT Decision).

The second NCAT proceedings

On 2 September 2016, the plaintiff commenced proceedings 16/39987 in NCAT against Amex, Mercer and AMP by lodging a “Consumer claim application about goods and services”. She claimed an amount of $12,655.23 and “redress under the Australian Consumer Law”. In her written submissions lodged with the application the plaintiff submitted, relevantly:

“[5] The Applicant contends that the Defendants one (1) to three (3) inclusive have submitted material documentation with words to the effect , “immediate” next to the monetary figures that she believes she is immediately entitled to, attached hereto and marked as Annexed [sic] A and B.”

Annexure “A” was a letter dated 28 September 2015 from Mercer, on behalf of the plaintiff, to AMP, in which Mercer notified AMP that the plaintiff wanted to initiate a TPD claim. The letter identified the “TPD GL amount” as $137,127.62 and made the following request:

“Please ensure the TPD benefit is paid by cheque and is made payable to the Mercer Super Trust – MT278.”

Each of the respondents in NCAT raised jurisdictional points, which were dealt with by NCAT on the papers. On 21 December 2016, NCAT dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis that they were an abuse of process and misconceived: Herbert v American Express Australia Ltd & Ors (No. 2) [2016] NSWCATCD 98 (the December 2016 NCAT Decision). The conclusion reached by NCAT was that the plaintiff was, in effect, claiming relief she could have claimed in the first NCAT proceedings.
The plaintiff has not lodged an appeal against the December 2016 NCAT Decision. I express no view about the correctness of the December 2016 NCAT Decision, which was not challenged in the present proceedings.

The plaintiff’s claim for workers compensation payments

I was informed by Ms Davidson, who appeared for the Workers Compensation Commission, that the plaintiff made a claim for workers compensation payments under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The plaintiff applied to the Workers Compensation Commission for an interim payment direction under the 1998 Act. The workers compensation insurer notified that there was a reasonable excuse for not commencing the payment of that claim. In October 2014 a delegate of the Registrar of the Workers Compensation Commission refused the plaintiff’s application on the basis that there was no evidence that established that the plaintiff’s employment was a contributing factor to the alleged injury, being the stroke. The workers compensation insurer subsequently notified its denial of liability in respect of the claim.
In October 2015 the plaintiff filed an application in the Workers Compensation Commission to resolve a dispute. In November 2014 a senior arbitrator of the Workers Compensation Commission resolved that dispute in favour of the employer, Amex. The plaintiff applied to appeal that decision. Subsequently the plaintiff requested a reconsideration of that decision pursuant to s 350 of the 1998 Act. During a teleconference in March 2015, the plaintiff, who was legally represented, elected to discontinue that application. An order giving effect to her election was made. In May 2015, the plaintiff filed a second application for an appeal against the senior arbitrator’s decision, which was rejected by the Workers Compensation Commission on the basis that it failed to comply with the procedural requirements of the 1998 Act, including as to the time for making an appeal.
There was a dispute as to whether or not the plaintiff’s second appeal application was within time which resulted in correspondence between the parties. Subsequently, the plaintiff made an application for external appeal to NCAT, including with respect of the senior arbitrator's decision in November 2014 and the decision in June 2015 to reject the second appeal application. On 11 February 2016, in Herbert v Workers Compensation Commission [2016] NSWCATAD 28, NCAT decided:

“[33]   The WC Acts provide a comprehensive statutory regime for workplace injury management and workers compensation, including compensation dispute determination. There is no provision under the WC Acts or any other Act that confers jurisdiction on this Tribunal to review a decision made under the WC Acts.
[34]   This Tribunal does not have a general power to review what might be called administrative decisions generally. Its jurisdiction and the powers it may exercise in relation to that jurisdiction must be found in a statute (NCAT Act s 28). In this case no statute confers jurisdiction on this Tribunal to review the decisions the applicant had identified.
[35]   For those reasons, I find that the Tribunal does not have jurisdiction to review any of the decisions the applicant identified.”

Correspondence regarding superannuation benefits

On 7 October 2014 the plaintiff applied for release of her superannuation benefits on compassionate grounds. On 4 December 2014 Mercer approved the release of $6,499.08 from her member account balance.
By letter dated 8 April 2016 AMP wrote to Mercer, for the attention of Ms Menezes, regarding the plaintiff’s concurrent claims for TTD and TPD monies and said that it regarded the TTD claim as “tenuous”. It referred to: the lack of detail provided by the plaintiff’s general practitioner, Dr Lau; the report of Dr Teychenne dated 31 January 2015 in which he was unable to confirm the diagnosis; the report of Professor Anderson to similar effect; as well as the plaintiff’s failure to comply with requests either for information or that she attend independent medical examinations.
AMP also wrote to Mr Herbert (who was authorised by the plaintiff to act on her behalf) on 8 April 2016. It reiterated its request that the plaintiff furnish authorities to treating doctors to provide information to AMP; and provide the financial information requested. AMP also noted the plaintiff’s failure to attend various medical appointments which it had arranged. AMP said:

“AMP considers that the information and medical examinations it has requested are reasonable and that it has done its best to accommodate Mrs Herbert in this process. However, in circumstances where this information has not been provided by Mrs Herbert, AMP remains unable to ascertain whether Mrs Herbert is, in fact, totally and permanently disabled.
We confirm that we wrote to the Trustee, Mercer, on 8 April 2016 advising them that, unless and until the information we have requested is provided, we will be unable to progress the determination of Mrs Herbert’s claim. We confirm that we shall provide Mercer with a copy of this email.
Once we have received the medical and financial information set out above and the reports from independent medical examiners, AMP will consider whether any further information is required or it is in a position to form an opinion as to whether Mrs Herbert is totally and permanently disabled. Obviously, the longer it takes to receive this information, the greater the delay in that decision.”

According to a letter dated 8 July 2016, Firths, solicitors, wrote to AMP on 13 May 2016 on behalf of the plaintiff seeking documentation regarding her claim, which was provided; and also sent to AMP an updated authority to act on the plaintiff’s behalf dated 7 June 2016. In its letter dated 8 July 2016, AMP informed Firths that the assessment of the plaintiff’s claim had been suspended pending the receipt of information from the plaintiff.
As at 30 June 2016 Mercer issued a statement to the plaintiff to inform her of her “super account balance”, which then stood at $4,988.80, which comprised a wholly preserved amount and was payable in the event of death or TPD.
On 24 August 2016 Mr Herbert, on behalf of the plaintiff, wrote to Mercer, in part as follows:

“Over the course of some time now I have requested the release of Denise Faasegi Herbert’s Total and Permeant [sic] Disability (TPD) entitlements of some on or around one hundred and thirty seven dollars ($137,000.00, plus Denise’s “Retrenched,” monies of some on or around twelve thousand dollars ($12,000.00).
On material documentation forward to me the words “immediate release” I believe are used next to the figures mentioned in the above paragraph. Therefore I believe that these funds MUST now be released forthwith meaning immediately.”

Mr Herbert referred to the Insurance Contracts Act1984 (Cth) and the requirement for an insurer to act in good faith. He continued:

“I hereby on behalf of Denise Faasegi Herbert believe that the requested funds must now be released immediately.
Please advise us before 3pm this Friday the 26th August 2016 whether ‘Mercer’ will release the said request and if NOT your written explanation accompanied with the relevant ‘legislation’.”

On 9 September 2016 Mercer, through its Senior Case Manager, Ms Menezes, wrote to the plaintiff informing her that the insurer has informed Mercer that it is unable to progress the assessment of her TTD and TPD claims until “outstanding information is received”. Mercer identified the following information as outstanding:

authorities for the Royal Prince Alfred Hospital, Dr Lau and Dr Ada;

tax returns and notices of assessment for the financial years ending 30 June 2014 and 30 June 2015 to permit AMP to verify whether any income had been received in that period.

The letter said:

“We request you to provide the outstanding information so that AMP can assess and make a decision on your claim.”

By letter dated 22 November 2016 Mercer wrote to the plaintiff, care of her husband, Mr Herbert, in response to his previous request, by letter dated 24 August 2016, that she be immediately paid her TPD insured benefit (around $137,000) and her super account balance (around $12,000). Mercer explained that AMP needed to obtain medical and other evidence before it could consider her eligibility for a TPD benefit. Mercer also said:

“Mrs Herbert’s Super Account Balance
In relation to your request for immediate payment of Mrs Herbert’s super account balance pursuant to her TPD claim, for the reasons referred to above payment is never available immediately. However, Mrs Herbert can apply for payment of her account balance at any time, without needing to wait for her TPD claim to be concluded, provided she meets one of the following four grounds:
Permanent incapacity (NB: this has specific and different requirements to a TPD claim);
Severe financial hardship;
Compassionate grounds (requires APRA approval); and
Terminal medical condition.
I note that Mrs Herbert previously applied for and received a portion of her super account balance on specified compassionate grounds as approved by APRA in December 2014. As a result of this, her current super account balance is actually approx. $5,007 (and not approx. $12,000). To find out more about applying for early release of her super account balance, Mrs Herbert may contact the MST Helpline on 1800 682 525 or access information by logging into the MST website.
Mrs Herbert can also choose to rollover her account balance to another super fund at any time, without it affecting her claim for the TPD insurance amount.
Having reviewed this matter, should Mrs Herbert maintain her request for early release of her super account balance of approx. $5,007, she should apply for early release on one of the four grounds above, following which that request will be considered.”

I note that the Federal Court approved the transfer of the life insurance business of The National Mutual Life Association of Australasia Ltd to AMP Ltd as and from 1 January 2017.

The plaintiff’s amended notice of motion

The relief claimed

The plaintiff sought, by amended motion, payment of “retrenchment monies” of $6,000 and TPD benefits of $137,224.36. In essence this is a claim for summary judgment in respect of those aspects of the amended statement of claim.

The evidence in support of the plaintiff’s motion

The evidence relied on by the plaintiff in support of her claim for summary judgment, in addition to that which is set out above, is as follows.

Medical evidence

In support of her motion, the plaintiff tendered medical evidence, including reports from Dr Lau and Dr Teychenne. In a report dated 10 November 2014 Dr Lau opined that the plaintiff was unfit for work “at present”; that her prognosis was guarded; and that with neuropsychological testing and counselling “she may be able to return to her pre-injury duties”. In December 2016 Dr Lau certified that the plaintiff had a diagnosis of “left cerebrovascular accident”; that her condition was permanent; that her symptoms were “right homonomous hemianopia, weakness, poor memory”; and that the prognosis was “poor”. He certified that the plaintiff was “unfit for work/study” from 1 December 2016 to 1 March 2017 inclusive”.
In a report dated 31 January 2015, Dr Teychenne opined that the plaintiff was not fit for the work she had been doing at the Amex call centre; and that her prognosis was “guarded”.
In her affidavit of 2 December 2016, the plaintiff deposed as to her current financial position. She referred to pages 6 and 7 of the Mercer Guide. She attached a medical certificate dated 2 November 2016 in which Dr Lau certified that she “has no current work capacity for any employment from 5 November 2016 to 5 February 2017”. Dr Lau provided the following answer to the query: “If no current work capacity, estimated time to return to any type of employment” - “Not known at present”.

The plaintiff’s submissions on her motion and in opposition to the defendants’ motions

Mr Herbert appeared by leave on behalf of the plaintiff. However, at times during the course of the hearing, the plaintiff, who was sitting beside him, rose to make a point or address me, apparently if she considered that her husband had not emphasised the point sufficiently or she wanted to speak for herself about a particular matter.
Mr Herbert submitted on behalf of the plaintiff that:

The Mercer Guide represented that the plaintiff would be paid her superannuation entitlement on termination of her employment.

Although the plaintiff was paid her TTD claim, the benefits ran out after two years (being the maximum period under the Policy).

At the end of the two year period, the plaintiff became entitled to be paid her TPD benefits by way of a lump sum and the balance of her superannuation account because she had paid the contributions to her superannuation and ought not be “bullied” into having to attend medical appointments or having to provide information to the insurer.

The defendants’ failure to pay the benefits represented rendered the representations made in the Mercer Guide misleading and deceptive and also had the effect of making the conduct of the defendants unconscionable.

The plaintiff is both disappointed and distressed as a result of the defendants’ refusal to pay her the money to which she claimed to be entitled and therefore she is entitled to damages for disappointment and distress arising from breach of contract in accordance with Baltic Shipping Company v Dillon (1993) 176 CLR 344.

The plaintiff is entitled to workers compensation benefits from the Workers Compensation Commission as she suffered a stroke while she was at work and therefore suffered an injury in the course of her employment: Pearson v The Fremantle Harbour Trust (1929) 42 CLR 320 and Favelle Mort Ltd v Murray (1976) 133 CLR 580.

The High Court in Maxwell v Highway Hauliers Pty Ltd (2014) 252 CLR 590; [2014] HCA 33 decided that s 54 of the Insurance Contracts Act meant that an insurer was not entitled to refuse to pay a claim, and accordingly, the plaintiff having made a claim, was entitled to payment.

It was necessary for all defendants to be joined because of the principle that all necessary parties be joined to the proceedings. Further, individual employees may also be liable in tort, whether or not their employer is liable.

The submissions of the Amex and the eighth and ninth defendants in support of their notice of motion

Application for dismissal or strike out

The extent of the plaintiff’s claim against the Amex parties

Mr White, who appeared with Mr Habashy on behalf of Amex, Ms Martinolli and Ms Kohli (the Amex parties), submitted that the plaintiff’s claim against the Amex parties was to be found in [16] of the amended statement of claim, which alleged as follows:

“[16]   The plaintiff seeks relief under the Fair Work Commission (FWC) against the first defendant.
Particulars
(a)    Deputy President Lawrence of the (FWC) hands down decision against the plaintiff dated 7 March 2016 File Number U2015/13042.
(b)    The plaintiff is of the opinion that Deputy Lawrence has erred in fact and law.
(c)   The plaintiff claims the sum of on or around ~~$867,000.00.~~ $802,032.00 from the first defendant for breach of contract/ economic loss for the period 10 September 2014 and continuing up to and including retirement age sixty five (65).
(d)   The plaintiff claims the sum of three (3) million dollars for exemplary damages, disappointment and distress, economic loss negligence and employees of defendant one (1) willing and knowingly submitting evidence knowing it to be false and misleading in a material respect/particular.
(e)   The defendant pay the plaintiff’s costs and interest on the plaintiff's costs.
(f) Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW).”

It was submitted on behalf of Amex that the claim, which could be construed in the following three different ways, ought be summarily dismissed:

an appeal from the Fair Work Commission’s rejection of the plaintiff’s unfair dismissal claim;

an attempt to re-litigate the plaintiff’s claim for unfair dismissal in the Fair Work Commission; or

an attempt to sue Amex and its employees for the alleged knowing submission by its employees of false and misleading evidence in the Fair Work Commission.

The jurisdiction of this Court

The Amex parties submitted that this Court had no jurisdiction over the Fair Work Commission and that, accordingly, none of the bases for the claim set out above was within this Court’s jurisdiction. They submitted that remedies for unfair dismissal are dealt with in Part 3-2 of the Fair Work Act and appeals from such decisions are provided for in Part 5-1 of the Fair Work Act. They relied on the exception to the general conferral of federal jurisdiction on this Court for matters arising under the Fair Work Act in s 4(4)(ab) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). They relied on Maleknia v University of Sydney [2016] NSWCA 108 in which the Court of Appeal dismissed proceedings that had been commenced in respect of a decision of the Fair Work Commission on the basis that this Court had no jurisdiction.

The plaintiff’s claim amounts to an abuse of process

Further, the Amex parties contended that the plaintiff’s claims against them in the present proceedings constituted an attempt by the plaintiff to re-litigate an issue which had been decided against her in the Fair Work Commission. They submitted that, even if this Court had jurisdiction to determine a matter arising under the Fair Work Act, the proceedings ought be dismissed against them because they amounted to an abuse of process.
The Amex parties relied on authorities which suggested that the principles of res judicata and issue estoppel apply in respect of decisions of NCAT (Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289; (2015) 18 BPR 35,471 at [39] per White J). However, they accepted that these principles may not apply to claims in the Fair Work Commission and proceedings in the Federal Court (Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at [58], [59] and [63] per Mortimer J). The Amex parties submitted that the Court may nonetheless exercise its powers to stay permanently or dismiss proceedings on the ground that they constitute an abuse of process where there is not merely an overlap of facts, but a "[r]e-litigation, or re-agitation, of precisely the same issues or disputes" (Dafallah v Fair Work Commission at [60]-[61]), or where the relief sought and the criterion for such relief is the same as in the earlier Fair Work Commission proceeding (Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180 at [82] per Gray, Ryan and Gyles JJ).

The Amex parties submitted that the plaintiff’s claim against it depends on the effect of her dismissal which was the same issue litigated in the Fair Work Commission. They contended that even if (contrary to their primary submission) I was satisfied that this Court had jurisdiction with respect to the plaintiff’s claim, this Court would be required to determine a matter already determined by the Fair Work Commission, namely whether the plaintiff's dismissal was a genuine redundancy pursuant to s 389 of the Fair Work Act, which would amount to an abuse of process.

The claim for damages based on alleged false and misleading evidence

The Amex parties submitted that representations made in the course of a hearing are not made in trade or commerce, and, for at least that reason, no claim based upon a false or misleading representation could be entertained under the Fair Trading Act 1987 (NSW) or the Australian Consumer Law: Little v Law Institute of Victoria (No. 3) [1990] VR 257 at 273-275 per Kaye and Beach JJ and at 292 per Ormiston J.
Further, the Amex parties submitted that the doctrine of witness immunity is fatal to the claim. They contended that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings, even if that evidence is false or malicious: Cabassi v Vila (1940) 64 CLR 130 at 140-141. They relied on the following passage from D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [39]:

“From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it nonetheless an immunity from suit.”
[Footnotes omitted]

The Amex parties also submitted, on the basis of Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 (at [42] per Beazley JA; Mason P agreeing at [1]; and Young CJ (in Eq) at [152]), that the doctrine operates to exclude any claims based on the conduct of witnesses and therefore there could be no vicarious liability for the conduct of witnesses.
The Amex parties submitted that the doctrine of witness immunity applies, by analogy, to persons giving evidence before a tribunal authorised by law to conduct an inquiry proceeding judicially, that is, in a manner similar to the way a court operates. They relied on Tampion v Anderson [1973] VR 321 at 332-334 per Mclnerney J and also submitted that Anderson J in James v Medical Board of South Australia and Keogh (2006) 95 SASR 445; [2006] SASC 267 appeared to suggest that the common law immunity would apply to proceedings brought before the Medical Board. They submitted that, on the basis of these authorities, proceedings of the Fair Work Commission would also attract the immunity.

The submissions of Mercer in support of its notice of motion

Application for dismissal or strike out

Mr Koch, who appeared on behalf of Mercer, submitted that the whole of the plaintiff’s claim against it was to be found in [15] of the amended statement of claim, which alleged as follows:

“The plaintiff's Group Salary Continuance payments must be paid by defendants two (2) and three (3).
Particulars
(a)   The plaintiff has requested that all her monetary entitled payments be made forthwith that being authorised under defendants two (2) and three (3) in particular to the Product Disclosure Statement (PDS) to date they have refused.
(b)   The plaintiff claims all her retrenchment monies of on or around~~$12,655.23~~ $6,000.00 and $137,224.36 for Total Permanent and Disabilities Monies (TPD).
(c)    The plaintiff claims two (2) million dollars for exemplary damages and disappointment and distress, as the plaintiff is of the opinion that defendants two (2) and three (3) have willing and knowingly submitted material documentation to be false and misleading in a material respect/particular.
(d)    The defendants pay the plaintiff’s costs and interest on the plaintiff's costs.
(e) Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW).
(f)    The plaintiff states that at or around page eighteen (18) of the second (2) defendants (PDS) words to the effect are used ‘The unrestricted non-preserved amount (if any) is the part of your super payout that is payable in cash at any time,’ at on or around page six (6) and seven (7) words to the effect are used ‘You'll receive super payout equal to your super balance when you leave your employer by resigning, you're retreated or you decide to exercise your choice As a member of the Super Trust you'll be entitled to a super payout on retiring, resigning or being retrenched by your employer.’”

As I understand the pleading, having heard from Mr Herbert, the plaintiff’s claim against Mercer is for payment of the balance of her superannuation account; her TPD monies; and an amount of $2 million damages for disappointment and distress on the basis of Baltic Shipping Company v Dillon by reason of the circumstance that she has had to wait for these monies to be paid.
Mr Koch submitted that combined effect of the Mercer Rules and the Policy is the plaintiff is only entitled to the value of her account balance ($4,988.80 as at 30 June 2016); and the TPD benefit paid to Mercer by AMP under the Policy ($137,224.36) if AMP determines that she has a disablement that qualifies as a total and permanent disablement under the Policy. Under the Policy, this determination will only occur if:

“after considering all evidence which we [AMP] believe is necessary to reach our view, in our [AMP’s] opinion the person insured has become incapacitated to such an extent as to render the person insured unlikely ever to engage in, or work for reward in, any occupation or work for which he or she is reasonably qualified by education, training or experience.”

Mr Koch submitted that, because the plaintiff had failed to comply with requests to provide information and attend appointments, AMP had not made any determination as to whether any disablement of the plaintiff is “Total and Permanent Disablement”. Mr Koch argued that, in these circumstances, neither of the benefits claimed was payable. He noted that the plaintiff has not applied for early release of her Member Account Balance. Accordingly, he contended that there was no arguable basis for the plaintiff to be entitled to the sums claimed and that her claim against Mercer ought be summarily dismissed.
As to the amount of $2 million, Mr Koch submitted that there was no discernible basis for the claim, which accordingly ought be dismissed as disclosing no cause of action.
Mr Koch also relied on the submissions made by Amex, set out above, on the question of summary dismissal on the basis of res judicata or issue estoppel.

Application to set aside the notice to produce

The plaintiff served a notice to produce on Mercer, which required production of the following documents:

“1    A copy of defendants two (2) (PDS) the Mercer Superannuation Product Disclosures Statement issued to the plaintiff (Denise Faasegi Herbert) when posted, a copy of the stamped envelope sent to the plaintiff, date, time, day.
2    A copy of any and all material documentation held by the second defendant and its employee's in particular held by the seventh defendant (Sharon Menezes) in regards to material documentation containing the plaintiff's name, without limitation to medical certificate's, complaints lodged, emails, diary entries and or hand written notes, computer screen shots, faxes', phone records mobile and or landline between the plaintiffs representative and all the other defendants named in this document being the Notice to produce for inspection, employee forms of the plaintiff, requested forms letters sent by the second defendant, forms filled out by the plaintiff and any and all other material documentation forward to the second defendant from the first defendant, third, fifth, sixth and seventh defendants in the name of the plaintiff (Denise Faasegi Herbert) for the period 5 August 2014 up to and including Friday 16 December 2016.
3    A copy of the second defendants Notice of Assessment from the Australian Taxation Office stating the company tax paid and or offset, for the period 5 August 2014 up to and including Friday 16 December 2016.
4    A copy of the second defendants liabilities and assets for the period 5 August 2014 up to and including Friday 16 December 2016, without limitation to property owned and or managed by the second defendant, monies held in bank/trust accounts for members/shareholders, company cars owned, company mobile phones owned, credit card's issued to any and all employee's employees.
5    A copy of all the second defendants wages/salary monetary payments paid out for the paid 5 August 2014 up to and including Friday the 16 December 2016 for all current employee's, CEO's, retrenched employee's monies paid out, time date when those retrenched monies paid out. Number of employee[s] employed by the second defendant.
6    A copy of any and all phone records made by the second defendant to the plaintiff and or between the first, third, fourth, fifth, sixth and seventh defendants in regards to the plaintiff, duration of said calls, time and date of said calls.
7    A copy of any material documentation releasing any amount of monetary amount in dollar sums to the plaintiff.
8    A copy of how many Total Permanent and Disabilities (TPD) monies were paid out to members for the period 1 March 2012 up to and including 16 December 2016 and the reasons that accompany the release of those monies.”

Mr Koch submitted that the notice to produce ought be set aside since the documents described in the notice were not relevant to any fact in issue in the proceedings; and, in the case of paragraph 1, the description of the documents sought was too broad.

The submissions of AMP and the fifth and sixth defendants in support of their notice of motion

Application for dismissal or strike out

The proceedings against AMP

Mr Walsh, who appeared on behalf of AMP, Mr Thomas and Mr Vichidvongsa (the AMP parties), submitted that the whole of the plaintiff’s claim against AMP was to be found in [15] of the amended statement of claim (as set out above). He submitted on behalf of AMP that the plaintiff had made numerous claims in various tribunals arising out of the same underlying facts and that the present proceedings were an attempt to re-litigate issues on which she had been unsuccessful elsewhere.
Mr Walsh contended that the December 2016 NCAT Decision was a “final judgment in an adversarial proceeding” capable of giving rise to the three forms of estoppel addressed by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22] being, cause of action estoppel (or res judicata in a court); “issue estoppel”; and Anshun estoppel, which operates to preclude the assertion of a claim in subsequent proceedings in circumstances where it was not reasonable to not raise that claim in earlier proceedings.
Mr Walsh submitted that if I were not persuaded that the proceedings should be summarily dismissed against AMP, the pleadings containing allegations affecting them ought be struck out as they were embarrassing in that the AMP parties were unable to discern the case made against them.

Mr Thomas and Mr Vichidvongsa

Mr Walsh submitted that, although Mr Thomas and Mr Vichidvongsa were named as defendants, no allegations were made against them. He contended that, as they were not parties to the Policy, there was no basis for any allegation that they owed any duty to the plaintiff and therefore no basis for any allegation of breach. He submitted, accordingly, that the proceedings ought be dismissed against them.

Application to set aside notices to produce for inspection

By notice to produce, the plaintiff sought production from AMP of the following documents:

“1.   A copy of all the material documentation that the third (3) defendant holds in the name of the plaintiff (Denise Faasegi Herbert) without limitation to the release of monetary sums of money by the third (3) defendant to the plaintiff, emails, screen shots, diary entries, hand written notes, medical certificate's, complaint's lodged by the plaintiff and the third (3) defendants response, salary continuation forms, appointment dates and times set up to see professional doctors/specialists, letters advising when and if cancelled, phone records to the first, second, fourth, fifth, sixth and or seventh defendant by employees of the third defendant in regards to the plaintiffs claim being the (TTD) and or (TPD) and how many other claims were paid out for the period 5 August 2014 up to and including Friday 16 December 2016.
2.   A copy of all material documentation that explains all the liabilities and Assets of the third (3) defendant, without limitation to bank account balances, company cars owned and or issued to employee's for leisure and or company use, mobile phones owned issued to employee's for leisure and or company use, current CEO's, and employee salary/wages and any and all retrenchment, injury, retirement, leave loading, holiday monies paid out to employee's for the period 5 August 2014 up to and including Friday the 16 December 2016.
3    A copy of any and all dividends/bonuses paid out to shareholders, employee's, CEO's employed by the third defendant for the period 5 August 2014 up to and including Friday 16 December 2016.”

By notice to produce, also dated 16 December 2016, the plaintiff sought production from Mr Thomas of the following documents:

“1.   A copy of any and all material documentation held by you the fifth defendant being (Jeri Thomas), in the name of the plaintiff (Denise Faasegi Herbert) without limitation to reports, complaints lodged and to be responded to within forty five (45) days, medical certificate's/salary continuance forms by the plaintiff, hand written notes, diary entries, computer screen shots, phone records between you the fifth defendant the plaintiff and or the first, second, third, fourth, sixth, and seventh defendant's duration, time and date of calls for the period 5 August 2014 up to and including Friday 16 December 2016.
2    A copy of any and all of your material documentation pertaining to your personal qualifications without limitation to qualifications gained at university, tafe , in house courses run by your employer, medical certificate's allowing you to make a judgement call on a plaintiff's medical condition.
3    A copy of your employment contract with your current employer being the third (3) defendant for the period 5 August 2014 to Friday 16 December 2016, stating employment details, salary/wages, position, responsibilities.
4    A copy of any and all of your personal Assets and Liabilities without limitation to bank account balances/current, car/s owned, mobile phone/s owned, credit card/s owned and balance's, loans taken out/applied for for the period 5 August 2014 up to and including Friday 16 December 2016.”

By notice to produce, also dated 16 December 2016, the plaintiff sought production from Mr Vichidvongsa of the following documents:

“1.   A copy of any and all material documentation that you (Alex Vichidvongsa) hold in the name of the plaintiff (Denise Faasegi Herbert) without limitation too: letter of complaint by the plaintiff which required a response within forty five (45) days, medical certificate's/salary continuance forms lodged by the plaintiff, hand written notes, diary entries, computer screen shots, phone records between you the sixth defendant and any other third party and or defendants one (1), two (2), three (3), four (4) five (5) and or seven (7) the duration of the said calls time and date for the period 5 August 2014 up to and including Friday 16 December 2016.
2    A copy of any and all material documentation pertaining to your qualifications without limitation to qualifications gained at university, Tafe, in house course run by your employer, medical certificate's allowing you to make a judgement call on a plaintiff's medical condition.
3    A copy of your employment contract with your current employer being the third (3) defendant stating your responsibilities, salary/wages, for the period 5 August 2014 up to and including Friday 16 December 2016.
4    A copy of any and all of your personal assets and liabilities without limitation to bank accounts balances/current, car/s owned, mobile phone/s owned, credit card/s owned and balances, loans taken out/applied for for the period 5 August 2014 up to and including Friday 16 December 2016.”

Mr Walsh submitted that each of the three notices of motion should be set aside.

The submissions of the Workers Compensation Commission in support of its notice of motion

Ms Davidson submitted that, consistent with the well-established principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, the Workers Compensation Commission takes no active role in the proceedings insofar as it concerns or calls into question the correctness of decisions it made in the plaintiff’s case. She foreshadowed the intention of the Workers Compensation Commission, if the relief sought in its notice of motion is granted, to file a submitting appearance in accordance with The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman. Ms Davidson confirmed that the Workers Compensation Commission’s motion for summary dismissal, or, in the alternative, strike out, was limited to that part of the plaintiff's claim which seeks damages against the Workers Compensation Commission; in particular, [12] of the amended statement of claim which alleges:

“The plaintiff seeks recourse through the fourth defendant.
Particulars
(a)    The plaintiff through her representative lodges an Application to Resolve a Dispute within the fourth defendant, registered 16 October 2014 Matter Number: 0055519/14.
(b)    The fourth defendant in due course rejects the plaintiffs "appeal," and closes the plaintiffs file letter dated 4 June 2015 Matter Number A3-005519/14, email of Kathryn Camp 10/06/15 at 3.23pm.
(c) The plaintiff claims that the fourth defendant has not administered the NSW Workers Compensation Acts of 1987, 1998 and its scheme in an equal and equitable manner and not within the spirit intended by the NSW Parliament, thus in turn denying her her first 13 weeks of monetary entitlements pursuant to section 36 and 37 of the Workers Compensation Act 1987 as follows:
(first 13 weeks) (AWE x 95%) -D, or
MAX-D.
(weeks 14 -130) (AWE x 80%) -D, or
MAX-D.
(d)    The plaintiff alleges that the fourth defendant has denied her a Lump Sum payment for whole person impairment assessed at twenty eight per cent 28%.
(e)    The plaintiff claims the sum of on or around ~~$12,480.00~~ $11,970.14 for the first 13 weeks, on or around ~~$9,984.00~~ $89,458.04 for the next 14-130 weeks, on or around $110,000 $220,00.00 for 28% whole person impairment and $1,000,000.00 for exemplary damages and disappointment and distress.
(f)    The defendant pay the plaintiffs costs and interest on the plaintiff's

costs.
(g) Interest pursuant to section 100 of the Civil Procedure Act 2005
(NSW).”

Ms Davidson submitted that the amended statement of claim failed to disclose any reasonable cause of action against the Workers Compensation Commission; or that it did not do so with sufficient clarity to apprise the Workers Compensation Commission of the case it is required to meet; and that any relevant cause of action would, in any event, be wholly met by a statutory immunity conferred upon members of the Workers Compensation Commission by the 1998 Act.
Ms Davidson relied on the following statutory provisions in support of this submission. Section 366(a) of the 1998 Act established the Workers Compensation Commission. Section 368(1) provided that it "consists of the following members: (a) a President, (b) Deputy Presidents, (c) a Registrar, (d) Arbitrators". The Workers Compensation Commission "has and may exercise such functions as are conferred or imposed on it by or under the Workers Compensation Acts or any other Act": s 366(2). The "Workers Compensation Acts" referred to include the 1998 Act and the Workers Compensation Act 1987 (NSW) (the 1987 Act): s 4 of the 1998 Act. The functions conferred on the Commission included the "exclusive jurisdiction to examine, hear and determine all matters arising under [the 1998 Act] and the 1987 Act: s 105(1) of the 1998 Act. Section 373 of the 1998 Act gave effect to the provisions of Sch 5 to the 1998 Act with respect to the members of the Commission. Clause 3 of Sch 5 provided that a member of the Workers Compensation Commission "has, in the performance of functions performed as a member, the same protection and immunities as a Judge of the District Court".
A Judge of the District Court is a "judicial officer" within the meaning of the Judicial Officers Act 1986 (NSW). Section 44B of the Judicial Officers Act confers on a Judge of the District Court "in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge". Ms Davidson submitted that s 44A of the Judicial Officers Act makes "clear" that "the content of the immunity continues to be determined by the common law": Yarraford Pastoral Co Pty Ltd v Registrar of the Downing Centre Local Court [2013] NSWSC 293 at [23] per Campbell J. She contended, accordingly, that the effect of the 1998 Act is to confer on members of the Workers Compensation Commission, in the performance of functions performed as a member, a statutory immunity equivalent to that conferred on Judges of the Supreme Court at common law and recognised in s 44A of the Judicial Officers Act.
Ms Davidson submitted that the immunity covers claims for damages brought by an aggrieved litigant against the Workers Compensation Commission and relied on Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at 185-186 [36]-[37] per Gleeson CJ. She accepted that the interaction between judicial immunity and the tort of misfeasance in public office is not settled in Australian law and drew my attention to a dictum in the Victorian Court of Appeal to the effect that notwithstanding judicial immunity "it would seem that the operation of the tort may extend to the wrongful exercise by a holder of public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith": Cannon v Tahche (2002) 5 VR 317 at 336 [48] per Winneke P, Charles and Chernov JJA; see also Rawlinson v Rice [1998] 1 NZLR 454.
Ms Davidson noted that the plaintiff's claim for exemplary damages and damages for disappointment and distress was said to be based on: "Common Law (Contract Dispute)" and "Mercantile Law (Sale of goods and services)". She submitted that no cause of action against the Workers Compensation Commission is pleaded and that there is no allegation that it is party to any contract. She submitted that the effect of the pleading was to allege that the Workers Compensation Commission had not exercised its statutory powers correctly, which were matters within the statutory immunity. Ms Davidson also contended that, even if the plaintiff’s claim was based on negligence, it would also be covered by the statutory immunity referred to above, which is conferred on the Commission’s members.
Finally, Ms Davidson submitted that, to the extent that it may be arguable, as a matter of law, that the statutory immunity would not preclude an action for the intentional tort of misfeasance in public office, this hypothetical argument cannot save the plaintiff’s claim. First, the tort is not pleaded. Secondly, the tort is not capable of being pleaded against “the Workers Compensation Commission". Thirdly, if it were to be pleaded against a proper defendant, it would have to be alleged, among other things, that the public official acted in bad faith, doing what he or she knows he or she has no power to do. She argued that the facts disclosed in the pleading, taken at their highest, give no basis on which such an allegation could properly be made against any member of the Workers Compensation Commission.

Application to set aside the notice to produce

The plaintiff sought production of the following from the Workers Compensation Commission by Friday 27 January 2017.

“1.   A copy of any and all material documentation held by the fourth (4) defendant being the NSW Workers Compensation Commission ("WCC") without limitation too: applications to hear the plaintiffs (Denise Faasegi Herbert's) grievances against her former employer the first defendant (American Express Australia Limited), decisions made by the fourth (4) defendant and any of its employees authorized to make such decisions such as arbitrators, delegates of the registrar, sectary's of the fourth (4) defendant, employee's to deny/dismiss the plaintiffs applications/appeals, any and all hand written notes, hand written decisions, official decisions by arbitrators, emails, screen shots, diary entries, legislative sections relied upon, regulation rules relied on, WCC rules relied on, to support the decisions made by the fourth (4) defendant's employee's and any and all other material documentation that contains the name of the plaintiff, for the period 5 August 2014 up to and including Friday 13 January 2017.
2.   A copy of all material documentation listing the fourth (4) defendant's Assets and Liabilities for the period 5 August 2014 up to and including Friday 13 January 2017, employee payments, number of employees employed, cars, vans, and or trucks issued to any employee's for business and or leisure, mobile phones issued to all employee's for business and or leisure employed by the fourth (4) defendant, company credit cards issued to employee's, bank accounts/bank balance of those accounts, government grants/funds award to the fourth (4) defendant.
3.   A copy of the salary/wage entitlements paid out to any and all employee's ‘President's’ ‘Deputy President's,’ or ‘junior employee's,’ employed by the fourth (4) defendant excluding their names without limitation too: showing tax paid, holiday pay, loadings, retrenchment payments, any and all injury payments, retirement monies.”

The Workers Compensation Commission responded to the Notice to Produce by offering to provide to the plaintiff copies of her application to the Commission and the decisions of the Commission. Production of the balance of the documents sought was resisted on the basis that such documents were neither relevant to a fact in issue in the proceedings, nor clearly identified, as required by UCPR r 21.10(1)(b).

Consideration

It is well-established that a claim will not be summarily dismissed unless it is so obviously untenable that it cannot possibly succeed: General Steel Industries Inc vCommissioner for Railways (NSW) (1964) 112 CLR 125. A claim is to be assessed against this standard assuming the truth of all the allegations in the statement of claim. If a claim is untenable in this sense, then it may be summarily dismissed (under UCPR r 13.4), or alternatively struck out if no reasonable cause of action might be pleaded (under UCPR r 14.28). A claim may be struck out, additionally, if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: McGuirk vUniversity of New South Wales [2009] NSWSC 1424. Summary judgment on a plaintiff’s claim (under UCPR r. 13.1) is only appropriate where there is no issue to be tried and where there is evidence from a responsible person as to that person’s belief that there is no defence to the plaintiff’s claim.
UCPR r 21.10 enables a party to serve a notice on another party to produce documents for inspections. Such documents must be “clearly identified in the notice” and be “relevant to a fact in issue” (UCPR r 21.10(1)(b)).
Although the plaintiff’s motion and the defendants’ motions are, in a sense, two sides of the same coin, I propose to address the plaintiff’s motion separately first.

Consideration of the plaintiff’s notice of motion

By her amended notice of motion, the plaintiff, in effect, seeks against Mercer summary judgment of that part of her claim that relates to the payment of what she has described as “Retrenchment Monies” of $6,000 and “Total and Permanent Disabilities Monies” (TPD Monies) of $137,224.36.
The contractual provisions set out above have the effect that the plaintiff would only be entitled to Retrenchment Monies and TPD Monies if, in the opinion of AMP, she had become incapacitated to such an extent as to render her unlikely to be able ever to engage in remunerative work: S5.1 of the Mercer Rules; and the definition of TPD at pages 13-14 of the Policy. The insurer is obliged to act reasonably: Edwards v The Hunter Valley Co-Op Dairy (1992) 7 ANZ Ins Cas 61-113 at 77,536; approved in TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at 454. The insured, in this case the plaintiff, has an obligation to co-operate with reasonable requests by the insurer for information germane to the opinion to be formed by AMP: cl A.7.1(c) of the Policy.
In the present case, it was apparent from the submissions made on behalf of the plaintiff (which is supported by the evidence adduced by the defendants) that she did not accept this construction of the contract and contended that she was entitled to the Retrenchment Monies and the TPD Monies in any event, irrespective of her physical condition, merely by reason of the termination of her employment. She also contended that she was not obliged to provide information or attend examinations as requested by AMP. These submissions are at odds with the Policy, which expressly provides that the entitlement to the monies is limited to instances where an insured is, in the opinion of AMP, totally and permanently incapacitated. Section 54(1) of the Insurance Contracts Act does not have the effect for which Mr Herbert contended on her behalf.
Mercer’s obligation is confined to payment to the plaintiff of her account balance ($4,998.80 as at 30 June 2016) if she is found to be TPD: S5.1(a) of the Mercer Rules. The definition of TPD under the Mercer Rules incorporates the definition in the Policy. Therefore there is no obligation on Mercer to pay the account balance unless and until AMP has decided that, in its opinion, the plaintiff is TPD (as defined). Mercer has no obligation to pay the TPD Monies to an insured unless it has received the TPD Monies from the insurer: S5.1(b) and the definition of “Insured Benefit” in S1 of Appendix 1 to the Mercer Rules.
Moreover, to the extent to which the plaintiff’s interpretation gains some support from the statements at pages 6 and 7 of the Mercer Guide (extracted above), the statement must be read in context. Although the representation was made that members of the Mercer Super Trust would receive a “super payout” equal to their “super account balance” when they leave their employer by resigning, retiring or being retrenched, this representation is qualified by the statements about “preserved” benefits. It is plain from the terms of the Policy and the Mercer Rules that the super account balance can only be released on compassionate grounds, or, if the member is relevantly classified as TPD.
The plaintiff has not established any entitlement to summary judgment, or interim relief, of the monies of which she seeks immediate release in the amended notice of motion. Accordingly, her amended notice of motion, in so far as it seeks such relief, ought be dismissed.

Consideration of the notice of motion of the Amex parties

Motion for summary dismissal or strike out

The Federal Court has exclusive jurisdiction in relation to any matter (whether civil or criminal) arising under the Fair Work Act: s 562. This Court has no jurisdiction with respect to any matter arising under the Fair Work Act: s 4(4)(ab) of the Jurisdiction of Courts (Cross-Vesting) Act (Cth); Maleknia v University of Sydney. Accordingly, this Court is prohibited from: entertaining an appeal from the Fair Work Commission’s rejection of the plaintiff’s unfair dismissal claim; or re-hearing that claim. In these circumstances, it is neither necessary, nor appropriate, to express a view on whether, if this Court had jurisdiction, the proceedings in this Court would amount to an abuse of process on the ground that the plaintiff seeks to re-litigate issues decided against her in the Fair Work Commission.
The balance of the plaintiff’s claim against the Amex parties is based on the allegation that Ms Martinolli and Ms Kohli gave misleading evidence in the Fair Work Commission. Section 579 of the Fair Work Act provides that the Fair Work Commission “has the privileges and immunities of the Crown in right of the Commonwealth”. Section 580 provides that a Member of the Fair Work Commission has, in performing his or her functions or exercising his or her powers as such a member, the same protection and immunity as a Justice of the High Court. However, there does not appear to be any express statutory immunity granted to witnesses who give evidence in a hearing before the Fair Work Commission.
When considering whether immunity would arise at common law in relation to witnesses who give evidence in proceedings before tribunals, the question whether a tribunal is required to act judicially is a relevant factor. The requirement to act judicially is not a reference to the exercise of judicial power, which Commonwealth tribunals and commissions are prohibited from exercising: The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Rather, it is a question of procedure. In Tampion v Anderson, at 333, McInerney J summarised the indicia which would tend towards the conclusion that the common law immunity would cover witnesses who gave evidence before a particular tribunal or commission as follows:

“These cases indicate that the circumstance that a tribunal has power to examine witnesses assists towards the conclusion that it is a body acting judicially, as does the fact that it conducts its proceedings in a manner resembling that of a court of justice, but that neither of these tests is decisive. The fact that a tribunal has power to determine rights is a strong (though not conclusive) indication that it is a body acting judicially. On the other hand, the converse proposition is not necessarily valid.”

The Fair Work Commission has power to conduct hearings and hear evidence from witnesses who give evidence on oath and may be cross-examined. The members of the Fair Work Commission (and those of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission) are obliged to act “judicially” in that they are bound to afford procedural fairness and impartiality: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 at [25]; The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group(1969) 122 CLR 546 at 552. Its members have the same immunity as is accorded to judges of the High Court. In these circumstances, I consider there to be significant force in the argument that the common law immunity for witnesses would protect witnesses who appear and give evidence before the Fair Work Commission from civil action taken against them in respect of statements made in the course of giving such evidence. However, against this argument, it must be acknowledged that Parliament has expressly conferred protection on the members of the Commission, but not on witnesses.
The Amex parties relied on what Anderson J said in James v Medical Board. However, in that case, witness immunity had been expressly granted by statute (s 16(4) of the Medical Practitioners Act 1983 (SA)) and the question was only whether the evidence of Dr James, who gave evidence in criminal proceedings, could be the subject of complaint to the Medical Board. The Court refused to grant an injunction to restrain the Medical Board from hearing the complaint. Justice Bleby said, at [4]:

“I also agree with Anderson J that an allegation of unprofessional conduct on the part of a medical practitioner, even though the conduct may include what the medical practitioner has said while giving evidence in a court of law or before a tribunal where a witness is afforded the same protection as a witness in proceedings in this Court, [5] differs from an action for damages against the medical practitioner based on what he said in court. The latter situation plainly attracts the conventional immunity of witnesses. However, there is a much wider public interest to be served by disciplinary proceedings such as those specified by the Medical Practitioners Act. That is to ensure that only suitably qualified persons are able to practise as medical practitioners and that appropriate standards of professional conduct are observed by medical practitioners.”

Justice Anderson said, at [91]:

“This is not a case of immunity from suit. Dr James is not being sued. There is no challenge by any new process to his previous evidence. He is simply being required to answer to the standards of his profession.”

In my view, the question whether a witness who gives evidence in the Fair Work Commission is immune from suit does not need to be decided for the purposes of the present application. The evidence given by Ms Martinolli and Ms Kohli in the proceedings brought by the plaintiff in the Fair Work Commission was not, in my view, conduct “in trade or commerce” within the meaning of s 18 of the Australian Consumer Law or s 42, the corresponding provision, of the Fair Trading Act. The limitations of such provisions were considered in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. The plurality (Mason CJ, Deane, Dawson and Gaudron JJ) said at 604 that s 52 (of the Trade Practices Act 1974 (Cth), the statutory predecessor to s 18 of the Australian Consumer Law) was concerned with conduct of a corporation towards persons with whom it may have dealings which bear a trading or commercial character. That the plaintiff was employed by Amex, which also employed Ms Martinolli and Ms Kohli; that the proceedings concerned the termination of the plaintiff’s contract of employment; and that Amex conducted its business for profit are not sufficient to give the statements and evidence given by Ms Martinolli and Ms Kohli the necessary commercial flavour to attract the operation of the sections.
Although there are differences between a court and the Fair Work Commission, these differences are not material to the question whether evidence given on oath or statements made for the purposes of proceedings amounts to conduct “in trade or commerce”. In these circumstances I regard the decision of the Victorian Full Court in Little v Law Institute of Victoria at 273 per Kaye and Beach JJ and at 292 per Ormiston J as providing guidance. Their Honours struck out and permanently stayed a claim based on a statement made by the secretary of the Law Institute of Victoria to the trial judge during the course of a hearing. I am satisfied that the proceedings against Ms Martinolli and Ms Kohli ought be summarily dismissed on the ground that they disclose no reasonable cause of action.

In summary, in my view, the claims against Amex ought be summarily dismissed as this Court has no jurisdiction to entertain them. In any event, they disclose no reasonable cause of action. The claims against Ms Martinolli and Ms Kohli ought be summarily dismissed as the amended statement of claim discloses no reasonable cause of action against them since it is not arguable that their giving of evidence in the Fair Work Commission was conduct “in trade or commerce”. These are matters which cannot be remedied by better pleading and therefore it is appropriate that the claims be summarily dismissed rather than that the amended statement of claim be struck out with leave to replead.

Consideration of the notice of motion of Mercer

Application for summary dismissal or strike out

For the reasons given above in relation to the plaintiff’s amended notice of motion, I accept Mr Koch’s submission that the plaintiff has no reasonably arguable claim to be entitled to her account balance or the TPD benefit. She has failed to co-operate with the insurer in that she has refused to attend examinations or provide information or authorities to enable an opinion to be formed as to whether she meets the requirements of TPD. She has purported to justify her refusal on the ground that she is not required to co-operate in circumstances where there is a clear contractual obligation on her to do so. It is not arguable that there is any breach by Mercer when she has no present entitlement to the account balance and no payment has been made by AMP to Mercer.
Although matters of issue estoppel and abuse of process have also been raised, I consider that the claims by the plaintiff against Mercer ought be summarily dismissed on the ground that they disclose no reasonable cause of action. The claim for damages for disappointment is without identifiable foundation and appears to be based on a misreading of the authorities. In these circumstances the claims against Mercer ought be dismissed under UCPR r 13.4.

Application to set aside notice to produce

As the plaintiff’s claim against Mercer ought be summarily dismissed, there is no forensic purpose in allowing the notice to produce to stand. However, as I have come to the view that it should be struck out, in any event, I shall express brief reasons for this conclusion. Paragraph 1 of the notice to produce would appear to be irrelevant since the plaintiff relies on the document the subject of the paragraph. Paragraph 2 of the notice to produce appears to be an application for general discovery but no connection has been demonstrated between the request and any issues between the plaintiff and Mercer. As to paragraphs 3, 4 and 5 of the notice to produce, Mercer’s income tax and financial situation; and the wages it pays its employees have no relevance to any issue in the proceedings and therefore should be struck out. As to paragraph 6 of the notice to produce, it is difficult to see what relevance the phone records could have to the issues in the proceedings. Paragraph 7 of the notice to produce seeks documents which have no relevance to the proceedings since the plaintiff accepted that she had been paid some monies from her account balance and amended her notice of motion to reflect the reduction accordingly. As to paragraph 8, the payments to others who established an entitlement to TPD monies, is irrelevant to whether the plaintiff herself qualifies for such monies.
For these reasons, the whole of the notice to produce served on Mercer by the plaintiff should be set aside.

Consideration of the notice of motion by the AMP parties

Application for dismissal or strike out

In the December 2016 NCAT Decision, NCAT dismissed the plaintiff’s claim for TPD monies against AMP, and others, on the basis that it was an attempt to re-litigate issues which had been decided against her in the February 2016 NCAT Decision. If the plaintiff wished to argue that the December 2016 NCAT Decision was wrong, she ought to have challenged that decision. Instead, she has chosen to leave that decision unchallenged and seek the TPD monies in this Court. I am persuaded that this amounts to an abuse of process of this Court and ought lead to summary dismissal of the plaintiff’s claim against AMP.
The plaintiff has not identified any conceivable cause of action against either Mr Thomas or Mr Vichidvongsa, who appear to have been joined as defendants, notwithstanding that no allegations have been made against them, on the basis of a misapprehension on the part of the plaintiff or her husband that it was necessary for them to name as defendants anyone whose name appears on a document or piece of correspondence sent by his or her employer. As no reasonable cause of action is disclosed against either Mr Thomas or Mr Vichidvongsa, the proceedings as against them ought be summarily dismissed.

Application to set aside notice to produce

Notice to produce issued to AMP

The evidence established that the claims documents held by AMP have been provided to the plaintiff (page 9 of Ex 3D1). In so far as paragraph 1 of the Notice to Produce issued to the AMP seeks other documents, no arguable relevance of those documents has been identified. As to paragraph 2 and 3 of the Notice to Produce, the financial situation of AMP as revealed by the documents sought does not appear to be relevant to any issue raised in the proceedings. Accordingly the Notice to Produce to AMP ought be set aside.

Notices to produce issued to Mr Thomas and Mr Vichidvongsa

Paragraph 1 of the Notice to Produce issued to Mr Thomas and the corresponding paragraph of the Notice to Produce to Mr Vichidvongsa appear to seek general discovery. Aside from the documents relating to the claim (which have already been provided by AMP) the relevance of the documents sought has not been identified. As to paragraph 2, which seeks documents relating to the recipients’ qualifications, the documents covered by this paragraph are not relevant in circumstances where the reason AMP has not come to an opinion whether the plaintiff is TPD is that insufficient information has been provided and she has failed to attend examinations. In these circumstances, the recipient’s qualifications are irrelevant. The relevance of the terms of their employment contracts or their own financial circumstances has not been identified. Accordingly paragraphs 3 and 4 of both Notices to Produce must also be set aside.

Consideration of the notice of motion by the Workers Compensation Commission

Application for summary dismissal

I accept Ms Davidson’s submission that the effect of cl 3 of Sch 5 to the 1998 Act and s 44B of the Judicial Officers Act is to render the Workers Compensation Commission and its members immune from a claim for damages by an aggrieved litigant. I also accept her submission that, in so far as there may be a hypothetical exception to the immunity in the form of a claim for damages for the intentional tort of misfeasance in public office, no relevant facts are pleaded which could permit the conclusion that any such cause of action is alleged. Nor does any basis appear for any allegation that could permit such a cause of action to be maintained. A charge of that nature ought not be allowed to be made without being specifically pleaded: Pharm-a-care Laboratories Pty Ltd v Commonwealth (No.3) (2010) 267 ALR 494 at 512; [2010] FCA 361 at [68] per Flick J.
The orders sought by the Workers Compensation Commission are crafted so as to respect the principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman. I am persuaded that it is appropriate to make orders in the terms sought. The claim for damages against the Workers Compensation Commission is so untenable that it should be summarily dismissed pursuant to UCPR r 13.4.

Application to set aside the notice to produce

A perusal of the documents, or categories of documents sought in the notice to produce addressed to the Workers Compensation Commission reveals a misapprehension of the requirements and purpose of such a notice. As appears from the summary set out above, the plaintiff claimed workers compensation payments but her claim was denied on the basis that there was no evidence that established that her stroke was contributed to by her employment. Subsequently the plaintiff elected to discontinue her application to appeal that decision. When she filed a further application for appeal, it was rejected as it failed to comply with procedural requirements. In these circumstances, the documents sought in paragraph 1 of the notice to produce have no bearing on the issue of the finality of the decisions of the Workers Compensation Commission referred to above. Paragraph 2 of the notice, which requires production of documents relating to the Commission’s financial circumstances, does not seek any document which could conceivably be relevant to a fact in issue. The same could be said of paragraph 3, which seeks details of the remuneration of various persons employed by the Commission. Indeed, the requests are not only oppressive, but they are also vexatious, since they seek documents which have nothing to do with the plaintiff’s claim. The notice appears to be worded in such a way as to cause disruption and, potentially, embarrassment to the Commission. For these reasons, the notice to produce must be set aside.

Costs

The plaintiff submitted that if she were unsuccessful in her motion or in resisting the defendants’ motions, the appropriate order was that each party pay his, her or its own costs. Neither Mr Herbert, nor the plaintiff herself, identified any reason why the plaintiff ought not be liable for the defendants’ costs if she was unsuccessful. Indeed, in her written submissions dated 8 February 2017, the plaintiff identified UCPR 42.1 and submitted that costs ought follow the event, unless it appeared to me that another costs order was appropriate.
The defendants sought costs, and, in the case of Mercer, costs were sought on an indemnity basis.
In my view, costs ought follow the event. The plaintiff has been wholly unsuccessful and the defendants have been wholly successful. No reason has been identified why the ordinary rule, that costs follow the event, ought not apply: UCPR 42.1. It follows that the plaintiff ought pay the costs of all the defendants both of their motions and of resisting her motion. I do not consider it to be appropriate to order that these costs be paid on an indemnity basis without hearing further from the parties in light of these reasons. Accordingly, I propose to make orders, which will stand unless any of the defendants make an application for a costs order on a higher basis within a period of seven days of publication of my reasons. In order to avoid further costs, I propose to deal with any such application on the papers.

Remaining applications

The plaintiff filed an amended notice of motion at the commencement of the hearing of this matter on 27 March 2017. In so far as the plaintiff amended the amounts sought in her original notice of motion, there was no difficulty in dealing with the amended notice of motion on 27 March 2017. Prayer 4, which sought dismissal of the defendants’ notices of motion, referred to above, was otiose. As to prayer 5, I granted leave to Mr Herbert to appear on behalf of the plaintiff on 27 March 2017 and note that leave was not opposed by any party. Leave was also sought for the plaintiff to have subpoenas issued. It is not appropriate that leave be granted without any proposed subpoena being viewed in draft form. The plaintiff, by prayer 7, sought leave to amend her amended statement of claim. It was not appropriate to consider the application without notice to the parties or to the Court, of the draft pleading. As aspects of the proceedings remain on foot, including the claim against the Workers Compensation Commission (excluding the claim for damages which has been summarily dismissed) and the claim against Sharon Menezes (who did not appear), I propose to adjourn the balance of the proceedings to the Registrar for further directions to be made.

Orders

I make the following orders:

Dismiss the plaintiff’s application for immediate release of monies in prayers 1 and 2 of her amended notice of motion filed in Court on 27 March 2017.

Dismiss the proceedings as against the first, eighth and ninth defendants pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4.

Dismiss the proceedings as against the second defendant pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4.

Dismiss the proceedings as against the third, fifth and sixth defendants pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4.

In so far as the plaintiff claims damages against the fourth defendant in [12] of the amended statement of claim filed on 27 January 2017, dismiss the claim for damages pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4.

Set aside the notices to produce issued by the plaintiff to:

the second defendant dated 16 December 2016;

the third, fifth and sixth defendants dated 16 December 2016; and

the fourth defendant dated 16 December 2016.

Subject to (8) below, unless any of the defendants makes an application in writing to my Associate within seven days of this order for an order that their costs be paid on a higher basis, order the plaintiff to pay:

the first, eighth and ninth defendants’ costs of the proceedings, including the costs of the plaintiff’s notice of motion, as amended on 27 March 2017; and the costs of the first defendant’s notice of motion filed on 7 December 2016;

the second defendant’s costs of the proceedings, including the costs of the plaintiff’s notice of motion, as amended on 27 March 2017; and the costs of the second defendant’s notice of motion filed on 22 December 2016;

the third, fifth and sixth defendants’ costs of the proceedings, including the costs of the plaintiff’s notice of motion, as amended on 27 March 2017; and the costs of the third, fifth and sixth defendants’ notice of motion filed on 23 December 2016 as amended on 27 January 2017;

the fourth defendant’s costs of the proceedings in so far as they relate to the plaintiff’s claim for damages against the fourth defendant, including the costs of the fourth defendant of its notice of motion filed on 30 January 2017.

If any application referred to in (7) is made, the application affects only the costs order in favour of the applicant and does not affect the balance of the costs orders set out in (7) above.

If any application referred to in (7) is made:

The applicant is to deliver to my Associate written submissions in support and any affidavit evidence relied upon with the application;

The respondent (plaintiff) is to deliver to my Associate written submissions in response, together with any affidavit evidence relied upon, within seven days of receipt of the material referred to in (a);

The applicant is to deliver to my Associate any written submissions in reply within seven days of receipt of the material referred to in (b);

Any such application will be determined on the papers.

Stand the matter over to the Registrar’s list on 27 April 2017 at 9am.

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Decision last updated: 07 April 2017

Medium Neutral Citation:	Herbert v American Express Australia Limited [2017] NSWSC 367
Hearing dates:	27 March 2017
Date of orders:	07 April 2017
Decision date:	07 April 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See [122]
Catchwords:	PRACTICE AND PROCEDURE – summary dismissal – no reasonable cause of action disclosed – proceedings vexatious PRACTICE AND PROCEDURE – whether witness immunity applies in proceedings in Fair Work Commission – not necessary to decide CONSUMER LAW – giving evidence in proceedings in Fair Work Commission not “in trade and commerce” JURISDICTION – Federal Court has exclusive jurisdiction under Fair Work Act 2009 – no right of review in Supreme Court of decisions of Fair Work Commission INSURANCE LAW – when entitlement to benefit depends on opinion of insurer – obligation of insured to provide information to enable opinion as to relevant matter to be formed – no breach by insurer when information not provided by insured
Legislation Cited:	Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Fair Trading Act 1987 (NSW) Fair Work Act 2009 (Cth) Insurance Contracts Act 1984 (Cth) Judicial Officers Act 1986 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Trade Practices Act 1974 (Cth) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Baltic Shipping Company v Dillon (1993) 176 CLR 344 Cabassi v Vila (1940) 64 CLR 130 Cannon v Tahche (2002) 5 VR 317 Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Edwards v The Hunter Valley Co-Op Dairy (1992) 7 ANZ Ins Cas 61-113 Favelle Mort Ltd v Murray (1976) 133 CLR 580 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Henderson v Henderson (1843) 67 ER 313 Herbert v American Express Australia Ltd [2016] FWC 1398 Herbert v Workers Compensation Commission [2016] NSWCATAD 28 Herbert v American Express Ltd & Ors [2016] NSWCATAP 47 Herbert v American Express Australia Ltd & Ors (No. 2) [2016] NSWCAT James v Medical Board of South Australia and Keogh (2006) 95 SASR 445; [2006] SASC 267 Little v Law Institute of Victoria (No. 3) [1990] VR 257 Maleknia v University of Sydney [2016] NSWCA 108 Maxwell v Highway Hauliers Pty Ltd (2014) 252 CLR 590; [2014] HCA 33 McGuirk v University of New South Wales [2009] NSWSC 1424 Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180 Pearson v Fremantle Harbour Trust (1929) 42 CLR 320 Pharm-a-care Laboratories Pty Ltd v Commonwealth (No.3) (2010) 267 ALR 494; [2010] FCA 361 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Rawlinson v Rice [1998] 1 NZLR 454 Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289; (2015) 18 BPR 35,471 Tal Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at 454 Tampion v Anderson [1973] VR 321 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Yarraford Pastoral Co Pty Ltd v Registrar of Downing Centre Local Court [2013] NSWSC 293
Category:	Procedural and other rulings
Parties:	Denise Faasegi Herbert (Plaintiff) American Express Australia Limited (1st Defendant) Mercer Superannuation (Australia) Limited as trustee for the Mercer Super Trust (2nd Defendant) The National Mutual Life Association of Australasia Limited (3rd Defendant) New South Wales Workers Compensation Commission (4th Defendant) Jeri Thomas (5th Defendant) Alex Vichidvongsa (6th Defendant) Sharon Menezes (7th Defendant) Sorine Martinolli (8th Defendant) Anshu Kohli (9th Defendant)
Representation:	Counsel: Plaintiff (by leave, represented by Mr Herbert) J White/D Habashy (1st, 8th and 9th Defendants) B Koch (2nd Defendant) SJ Walsh (3rd, 5th and 6th Defendant) J Davidson (4th Defendant) Solicitors: Dibbs Barker (1st, 8th and 9th defendants) Lander & Rogers (2nd Defendant) Turks Legal (3rd, 5th and 6th Defendants) Crown Solicitor (4th Defendant)
File Number(s):	2016/361971