Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Herbert v American Express Australia Ltd and Ors (No. 2) [2016] NSWCATCD 98 Hearing dates: On the papers Decision date: 21 December 2016 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson, Senior Member Decision: 1 Any hearing is disposed with.
2 The proceedings are dismissed under Section 55(1) (b) of the Civil and Administrative Tribunal Act 2013 as an abuse of process and misconceived.
3 The application to withdraw the proceedings under Section 55(1) (a) of the Civil and Administrative Act 2013 is refused.Catchwords: Consumer Claim---Jurisdiction---Issue estoppel---Cause of action estoppel---Res judicata
Consumer Claim---Jurisdiction—Interaction between state and federal legislation---Whether NCAT is a “Court” with jurisdiction to hear federal matters
Procedure---Summary dismissalLegislation Cited: Commonwealth of Australia Constitution Act 1900 s77 Civil and Administrative Tribunal Act 2013 ss 29, 36, 38, 45, 55, 62, 77; Schedule 4, Part 5, Clause 6
Fair Trading Act 1987 ss 28, 79D, 79E, 79F, 79G, 79H
Australian Consumer Law 2010
Insurance Contracts Act 1984 (C’th) s 54
Superannuation Industry (Supervision) Act 1993 (C’th) ss 31, 34
Superannuation (Resolution of Complaints) Act 1993 (C’th) ss 20, 37, 46
Superannuation Industry (Supervision) Regulations 1994 (C’th) Part 6 Division 6.2, Reg 6.17
Residential Tenancies Act 2010 ss 175, 187Cases Cited: Oceanic Sun Line Special Shipping Company Inc. v Fay [1988] HCA 32 (1988) 165 CLR 197;
Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33, (2014) 252 CLR 590
Baltic Shipping Co Ltd v Dillon [1993] HCA 4 (1993) 176 CLR 344
Barrier Wharfs Ltd v W Scott Fell Co & Ltd [1908] HCA 88, (1908) 5 CLR 647
Balmain New Ferry Co Ltd v Robertson (1906) HCA 83, (1904) 4 CLR 379
Complete Irrigation NSW Pty Ltd v McMillan [2015] NSWCATAP 34
Pickering v Yi [2015] NSWCATAP 161
Herbert v American Express Australia Ltd and Ors [2016] NSWCATAP 47
Department of Justice and Attorney General v AY (GD) [2010] NSWADTAP 17
Ravenscroft v Skinner [2016] NSWCATAP 107
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28
Pearson v Clark [2016] NSWCATAP 134
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Sacks v Hammoud [2016] NSWCATAP 225
Qantas Airways Limited v Lustig [2015] FCA 253
Bilpin v Mainfreight International Pty Ltd [2016] NSWCATCD 70Category: Principal judgment Parties: Denise Fassegi Herbert (applicant)
American Express Australia (first respondent)
The National Mutual Life Association (second respondent)
Mercer Superannuation (third respondent)Representation: Applicant: Mr S. Herbert
First Respondent (‘Amex’): Mr N.Rowe, General Counsel’s Office, Amex
Second Respondent (‘Mercer’): Mr T. Kerr, Lander & Rogers Solicitors
Third Respondent (‘AMP’): Ms D Comelli, Senior Legal Counsel, AMP
File Number(s): GEN 16/39987 Publication restriction: Nil
REASONS FOR DECISION
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The matter was listed before the Tribunal on 10 November 2016 on the issue of jurisdiction. Pursuant to directions made by Member Kinsey of the Tribunal on 21 September 2016, the determination of jurisdiction was to be made “on the papers” (i.e. based on the written materials and submissions)…
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- Case
- [2016] NSWCATCD 98
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Civil and Administrative Tribunal (NCAT) had jurisdiction to hear the matter, given that it was a federal dispute, and whether issue estoppel or res judicata applied to prevent the plaintiff from bringing the claim. The defendant argued that the NCAT was not a "court" with jurisdiction to hear federal matters, and that the plaintiff was estopped from bringing the claim due to a previous decision by the Federal Court. The plaintiff argued that the NCAT did have jurisdiction and that the previous decision did not estop them from bringing the claim.
The court found that the NCAT did have jurisdiction to hear the matter, as it was a "court" for the purposes of the relevant legislation. The court also found that the previous decision by the Federal Court did not estop the plaintiff from bringing the claim, as the issues were not the same. The court noted that the previous decision related to the validity of the credit card agreement, whereas the current claim related to the cancellation of the credit card. The court further found that the claim was misconceived and an abuse of process, and therefore dismissed the proceedings.
The court refused the defendant's application to withdraw the proceedings, as it was satisfied that the matter had been fully heard and determined. The court noted that the plaintiff had not acted in bad faith in bringing the claim, and that there were genuine issues to be determined in the proceedings. The court also noted that the defendant had not suffered any prejudice as a result of the claim being brought. The final order of the court was that any hearing was disposed with, the proceedings were dismissed as an abuse of process and misconceived, and the application to withdraw the proceedings was refused.
Orders
Orders of the court
1 Any hearing is disposed with.
2 The proceedings are dismissed under Section 55(1) (b) of the Civil and Administrative Tribunal Act 2013 as an abuse of process and misconceived.
3 The application to withdraw the proceedings under Section 55(1) (a) of the Civil and Administrative Act 2013 is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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