Herbert v American Express Australia Limited [2018] FCA 1790

Herbert v American Express Australia Limited [2018] FCA 1790

The Court refused leave for the applicant's husband to represent her due to the factual and legal complexity, the husband's demonstrated inability to assist adequately, and because the applicant was able to make submissions herself. The applicant's claims were determined to be vexatious as they had been repeatedly advanced and resolved in other courts and tribunals, often with unfounded or exaggerated allegations, and the proceedings amounted to an abuse of court process. Summary judgment was entered for the respondents under r 26.01 of the Federal Court Rules. Even if summary judgment were not entered, the pleadings would have been struck out under r 16.21 due to ambiguity, failure to...

Jurisdiction
Australia
Judgment Date
21 November 2018
Procedural Posture
Interlocutory Applications and Cross Claims in Civil Proceedings / Judgment and Orders Made at Interlocutory Stage; Summary Judgment and Strike Out Applications Determined
Outcome
Judgment entered for all respondents; claims dismissed; prohibition ordered against further similar proceedings; costs awarded against applicant and cross-respondents.
Legal Topics
['summary Judgment' 'strike Out Applications' 'vexatious Proceedings Orders' 'leave for Non Lawyer Representation' 'res Judicata/abuse of Process' 'unconscionable Conduct' 'breach of Contract']
['practice and Procedure' 'civil Procedure' 'employment Law' 'insurance Law' 'consumer Protection'] ['summary Judgment' 'strike Out Applications' 'vexatious Proceedings Orders' 'leave for Non Lawyer Representation' 'res Judicata/abuse of Process' 'unconscionable Conduct' 'breach of Contract']

Case Brief

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Procedural Posture

Interlocutory Applications and Cross Claims in Civil Proceedings / Judgment and Orders Made at Interlocutory Stage; Summary Judgment and Strike Out Applications Determined

Legal Issues

  1. 1 ['Whether the applicant could be represented by her husband, a non-lawyer' 'Whether the proceeding was vexatious and should be disposed of summarily under r 26.01 of the Federal Court Rules' 'Whether the pleadings should be struck out under r 16.21' 'Whether vexatious proceedings orders should be made against the applicant and her husband']

Ratio Decidendi

The Court refused leave for the applicant's husband to represent her due to the factual and legal complexity, the husband's demonstrated inability to assist adequately, and because the applicant was able to make submissions herself. The applicant's claims were determined to be vexatious as they had been repeatedly advanced and resolved in other courts and tribunals, often with unfounded or exaggerated allegations, and the proceedings amounted to an abuse of court process. Summary judgment was entered for the respondents under r 26.01 of the Federal Court Rules. Even if summary judgment were not entered, the pleadings would have been struck out under r 16.21 due to ambiguity, failure to...

Court Disposition

Judgment entered for all respondents; claims dismissed; prohibition ordered against further similar proceedings; costs awarded against applicant and cross-respondents.

Orders

  • ['The parties are to bring in agreed Short Minutes of Orders to give effect to the reasons within 14 days.' 'In the absence of agreement, parties are to file Short Minutes as sought within 21 days, to be resolved on the papers.' 'Judgment entered in favour of American Express Australia Limited, Mercer Superannuation...