Herbert v American Express Australia Limited

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FEDERAL COURT OF AUSTRALIA

Herbert v American Express Australia Limited [2018] FCA 1790

File number: NSD 879 of 2018
Judge: FLICK J
Date of judgment: 21 November 2018
Catchwords:

PRACTICE AND PROCEDURE – application for representation by a non-lawyer – where unrepresented Applicant applied to be represented by her husband – where case involves significant factual and legal complexity – where husband has proved incapable of providing adequate assistance – where Applicant able to make submissions on her own behalf – leave refused

PRACTICE AND PROCEDURE – summary judgment – where Respondents applied for summary judgment on the basis that the proceeding was vexatious – where substantially similar proceedings commenced in other courts and tribunals – where claims previously resolved – where Applicant raised exaggerated and unfounded claims and claims with no justifiable basis – judgment entered in favour of the Respondents

PRACTICE AND PROCEDURE – application for pleading to be struck out – whether pleading contains vexatious material – whether pleading ambiguous – whether pleading an abuse of the process of the Court – whether pleading likely to cause prejudice, embarrassment or delay – claim struck out – whether liberty should be granted to re-plead

PRACTICE AND PROCEDURE – vexatious proceedings orders – application to prohibit the institution of further proceedings – whether proceeding vexatious – whether Cross-respondents have frequently instituted vexatious proceedings – whether Cross-respondents have frequently conducted vexatious proceedings – consideration of appropriate form of orders     
Legislation:

Fair Work Act 2009 (Cth) ss 394, 389, 575

Federal Court of Australia Act 1976 (Cth) ss 20, 37AM, 37AO, 37AR

Competition and Consumer Act 2010 (Cth) Sch 2 ss 18, 21

Federal Court Rules 2011 (Cth) rr 4.01, 16.01, 16.02, 16.03 16.21, 26.01 
Cases cited:

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, (2018) 277 IR 75

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50

Corporate Affairs Commission v Solomon (unreported, NSWCA, Mahoney AP, 1 November 1989)

Cristovao v Registrar Caporale [2012] FCA 1329

Damjanovic v Maley [2002] NSWCA 230, (2002) 55 NSWLR 149

Favell v Queensland Newspapers P/L [2004] QCA 135

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, (2005) 79 ALJR 1716

Fuller v Toms [2015] FCAFC 91, (2015) 234 FCR 535

Garrett v Commissioner of Taxation [2015] FCA 117, (2015) 147 ALD 342

Herbert v American Express Australia Ltd [2016] NSWCATAP 47

Herbert v American Express Australia Limited [2017] NSWSC 367

Herbert v American Express Australia Ltd (No 2) [2016] NSWCATCD 98

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

McKenzie v McKenzie [1971] P 33

Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481

Mbuzi v AGL Sales Pty Ltd [2018] FCA 367

Mbuzi v Griffith University [2014] FCA 1323, (2014) 146 ALD 543

Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927

Pancontinental Mining…

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Details
Case
[2018] FCA 1790
Decision Date

CaseChat Overview and Summary

The case of Herbert v American Express Australia Limited involved Mrs. Herbert, who sought to represent herself in a legal matter against American Express Australia Limited. Her husband, Mr. Herbert, had applied to represent her, but this application was denied. The dispute centered on issues of representation, the vexatious nature of the proceedings, and the appropriateness of striking out the pleadings. The court had to determine whether Mrs. Herbert could adequately represent herself, whether the proceedings were vexatious, and if the pleadings contained material that warranted being struck out.

The primary legal issues addressed by the court were whether Mr. Herbert could represent Mrs. Herbert, whether the proceedings were vexatious and thus warranted summary judgment, and whether the Amended Statement of Claim contained vexatious material or was ambiguous, prejudicial, or an abuse of court process. The court considered the complexity of the case, Mrs. Herbert's ability to manage her own submissions, and the history of vexatious claims brought by her.

The court ruled that Mr. Herbert could not formally represent his wife but could assist her in a limited capacity, similar to a "McKenzie friend." It was determined that the proceedings were vexatious due to the history of similar claims in other courts and tribunals, and the exaggerated or unfounded nature of Mrs. Herbert's claims. The Amended Statement of Claim was found to contain vexatious material and was struck out. The court also considered the possibility of granting liberty to re-plead but ultimately decided against it.

The final orders included the requirement for the parties to draft Short Minutes of Orders within 14 days, with the resolution of the form of orders to be made on the papers if no agreement was reached within 21 days. The court's decisions were based on the vexatious nature of the proceedings and the inappropriateness of the pleadings.

Orders

Orders of the court

1. Subject to Order 2, the parties are to bring in agreed Short Minutes of Orders to give effect to these reasons within 14 days.

2. In the absence of agreement:

(a) the parties are to file such Short Minutes of Orders as are sought within 21 days; and

(b) the resolution of the form of Orders to be made will thereafter be resolved on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although Mr Herbert was denied leave to make submissions on behalf of his wife, at the outset of the hearing, Mrs Herbert was invited (should she so wish) to have Mr Herbert join her at the bar table to provide such support and assistance as she saw fit. Mr Herbert in fact joined his wife at the bar table and throughout the hearing routinely provided her assistance. To that extent, although Mr Herbert was denied the right to represent his wife, he performed the role of a “McKenzie friend”: cf. McKenzie v McKenzie [1971] P 33.THE STATE OF THE PLEADINGS – SUMMARY JUDGMENT & STRIKE OUT? All Respondents seek to: ·have the Amended Statement of Claim struck out pursuant to r 16.21(1) of the Federal Court Rules; and/or ·have judgment entered in their favour pursuant to r 26.01(1) of those Rules by reason of the proceedings being “vexatious”. If judgment is entered in favour of the Respondents pursuant to r 26.01(1) it perhaps matters not whether the Amended Statement of Claim would otherwise have been struck out pursuant to r 16.21(1). However, both issues were addressed in submissions and both have been resolved. It nevertheless remains prudent to put such applications in context. Brief consideration should thus be given to:·the legal and factual issues sought to be raised for resolution by Mrs Herbert;·the general principles to be applied when determining whether judgment should be entered pursuant to r 26.01 of the Federal Court Rules by reason of the proceeding being “vexatious”;·whether the present proceeding, even if further amended, would constitute a “vexatious” proceeding; ·the general principles to be applied when entertaining an application that a pleading be struck out pursuant to r 16.21 of the Federal Court Rules by reason of the pleading containing “vexatious material” (r 16.21(1)(b)); it being “ambiguous” (r 16.21(1)(c)); it being “likely to cause prejudice, embarrassment or delay” (r 16.21(1)(d)); or it otherwise being an “abuse of the process of the Court” (r 16.21(1)(f)); and·the manner in which these general principles are to be applied to the present proceeding. The Amended Statement of Claim – the issues sought to be raised The Amended Statement of Claim assumes the form of a document setting out a series of numbered paragraphs from [1] to [9]. Paragraphs [1] to [7] are characterised by statements being made in each paragraph and thereafter there is set forth what are termed as “Particulars” and “Causes of Action”. Paragraph [8] sets forth a statement as to offers made to settle the proceeding. Paragraph [9] is simply headed “Causes of Action” and thereafter there appear a series of “Particulars”. Needless to say, the form of the Amended Statement of Claim fails to comply with rr 16.02 and 16.03 of the Federal Court Rules. But such deficiencies may presently be left to one side. The Amended Statement of Claim again repeats the pleading that American Express employed Mrs Herbert (as para [1]) and that she suffered a stroke during the course of her employment on 5 August 2014 (at para [2]). As amended, it is now pleaded that Mrs Herbert was not paid for the period from 5 August 2014 “up to and including … around 9 November 2014” (at para [3]).

Ratio Decidendi

Legal Principle Established

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