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Herbert v American Express Australia Limited

Herbert v American Express Australia Limited

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 367
Decision Date: 07 April 2017

CaseChat Overview and Summary

In the matter of Herbert v American Express Australia Limited, the Federal Court of Australia was called upon to review the decision of the Fair Work Commission. The dispute originated from a claim by the plaintiff, Herbert, against the defendant, American Express Australia Limited, concerning an alleged breach of consumer law. The plaintiff contended that the defendant failed to provide necessary information to enable an opinion on the plaintiff's insurance benefit entitlement, thereby breaching a contractual obligation.

The court was tasked with determining whether the plaintiff had disclosed a cause of action and whether the proceedings were vexatious. Additionally, the court considered the applicability of witness immunity in proceedings before the Fair Work Commission and the jurisdictional scope of the Federal Court under the Fair Work Act 2009. The court also examined whether the giving of evidence in Fair Work Commission proceedings constituted "in trade and commerce" under the Australian Consumer Law.

The court concluded that the plaintiff had not disclosed a reasonable cause of action, and the proceedings were vexatious. It found that the giving of evidence in Fair Work Commission proceedings did not fall within the scope of "in trade and commerce" under the Australian Consumer Law. The court further held that the Federal Court has exclusive jurisdiction over matters arising under the Fair Work Act 2009, and there is no right of review in the Supreme Court of decisions of the Fair Work Commission. Consequently, the court dismissed the plaintiff's appeal and ordered the plaintiff to pay the defendant's costs.

Orders