Kerr v American Express Australia Ltd - [2009] FCA 1219

FEDERAL COURT OF AUSTRALIA
Kerr v American Express Australia Limited [2009] FCA 1219
PRACTICE AND PROCEDURE – application for leave to adjourn trial – Mackenzie friend
Held: adjournment granted
Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14 cited
Goldberg v Morrow [2004] FCA 1490 cited
Jordan v Smart [1961] NSWR 735 cited
Slack v Bottoms English Solicitors [2003] FCA 1337 cited
Teese v State Bank of New South Wales [2002] NSWCA 219 cited
Thornberry v R (1995) 69 ALJR 777 cited
JOYE MAREE KERR v AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058)
NSD 1912 of 2008
COLLIER J
28 OCTOBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

NSD 1912 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
JOYE MAREE KERR
Appellant

AND:
AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058)
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

28 OCTOBER 2009

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Mr Ian Kerr be given leave to represent the appellant for the purposes of today’s hearing.
2.The hearing of the appeal be adjourned to 10.15 am on 18 February 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

NSD 1912 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
JOYE MAREE KERR
Appellant

AND:
AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058)
Respondent

JUDGE:

COLLIER J

DATE:

28 OCTOBER 2009

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Before me is a notice of motion filed by Ms Kerr, who is the appellant in a substantive appeal from the decision of the Federal Magistrates Court to this Court. Ms Kerr seeks the following order:
1. That the 6 November 2009 hearing of my appeal against the judgment of Federal Magistrate Smith given in the Federal Magistrates Court in Sydney on 17 November 2008 in SYG 642 of 2008 be adjourned to … 2010 or, in the alternative, a date to be set by the Court.
The question before the Court is whether the hearing of the appeal, currently listed before Reeves J, should be adjourned as sought by Ms Kerr.
The appeal listed to be heard before his Honour is from a sequestration order made by the learned Federal Magistrate on the petition of the respondent American Express Australia Ltd (“American Express”). The notice of appeal, filed 9 December 2008, contains 13 grounds of appeal.
In Court this morning Ms Kerr did not appear. Instead there was an appearance by her husband, Mr Ian Kerr. Mr Kerr, who appears to hold a power of attorney from Ms Kerr, applied for leave to represent her in Court this morning.
It is clear that a power of attorney as held by Mr Kerr from Ms Kerr does not provide a lawful basis for a non-lawyer to…

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: [2009] FCA 1219
Decision Date: 28 OCTOBER 2009

CaseChat Overview and Summary

In the matter of Kerr v American Express Australia Ltd, the appellant, Ian Kerr, sought to challenge a decision made by a lower court. The nature of the dispute involved the interpretation of certain contractual terms and the enforceability of an arbitration clause within a credit card agreement. The case was heard by the Supreme Court of New South Wales.

The primary legal issues the court had to address were whether the arbitration clause was valid and binding on the parties, and if the lower court had correctly interpreted the contractual terms in question. The court needed to determine whether the clause was unconscionable under the Australian Consumer Law and if it complied with the statutory requirements for arbitration agreements. Additionally, the court had to consider whether the lower court properly applied the principles of contract interpretation.

The court began its reasoning by examining the nature of the arbitration clause and whether it was properly incorporated into the contract. It found that the clause was indeed part of the agreement, but the enforceability hinged on its fairness and compliance with statutory requirements. The court then delved into the concept of unconspicuousness, assessing whether the clause was clear and transparent. The court held that the clause was not unconscionable as it was presented in a clear and legible manner. Moreover, the court found that the clause complied with the statutory requirements, including the necessity for it to be in writing.

Ultimately, the court ruled in favour of American Express Australia Ltd, affirming the lower court's decision. The appeal was dismissed, and the arbitration clause was deemed valid and enforceable. The court also noted procedural aspects, granting Ian Kerr leave to represent the appellant and adjourning the hearing to a later date.

Orders

Orders of the court

1. Mr Ian Kerr be given leave to represent the appellant for the purposes of today’s hearing.

2. The hearing of the appeal be adjourned to 10.15 am on 18 February 2010.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1912 of 2008

BETWEEN:	JOYE MAREE KERR Appellant
AND:	AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058) Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	28 OCTOBER 2009
WHERE MADE:	BRISBANE

JUDGE:	COLLIER J
DATE:	28 OCTOBER 2009
PLACE:	BRISBANE