Herbert v American Express Australia Limited [2017] NSWSC 367

Herbert v American Express Australia Limited [2017] NSWSC 367

All claims against first, second, third, fifth, sixth, eighth, and ninth defendants, and damages claims against the fourth defendant, are summarily dismissed as not disclosing any reasonable cause of action, being untenable given statutory and contractual requirements, jurisdictional bars, and statutory/witness immunities. Plaintiff's motions for immediate release of monies and evidentiary notices are dismissed or set aside as irrelevant, oppressive, or not meeting procedural requirements. Plaintiff failed to establish entitlement to payments or damages absent insurer's formed opinion or procedural compliance.

Parties
Plaintiff: Denise Faasegi Herbert; 1st Defendant: American Express Australia Limited; 2nd Defendant: Mercer Superannuation (Australia) Limited as trustee for the Mercer Super Trust; 3rd Defendant: The National Mutual Life Association of Australasia Limited; 4th Defendant: New South Wales Workers Compensation Commission; 5th Defendant: Jeri Thomas; 6th Defendant: Alex Vichidvongsa; 7th Defendant: Sharon Menezes; 8th Defendant: Sorine Martinolli; 9th Defendant: Anshu Kohli
Jurisdiction
Australia
Judgment Date
07 April 2017
Procedural Posture
Procedural and Other Rulings / Orders on Summary Dismissal and Notices of Motion
Outcome
Claims summarily dismissed as against relevant defendants; costs ordered; remaining aspects of litigation stood over for directions.
Legal Topics
Summary Dismissal, No Reasonable Cause of Action, Vexatious Proceedings, Witness Immunity, Fair Work Commission Procedures, Trade and Commerce Definition, Exclusive Jurisdiction Under Fair Work Act, Insurance Benefit Entitlement, Obligation to Provide Information, Workers Compensation, Statutory Immunity, Damages for Disappointment and Distress
Practice and Procedure Consumer Law Jurisdiction Insurance Law Employment Law Summary Dismissal No Reasonable Cause of Action Vexatious Proceedings +9 more

Case Brief

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Parties

Denise Faasegi Herbert

Plaintiff

American Express Australia Limited

1st Defendant

Mercer Superannuation (Australia) Limited as trustee for the Mercer Super Trust

2nd Defendant

The National Mutual Life Association of Australasia Limited

3rd Defendant

New South Wales Workers Compensation Commission

4th Defendant

Jeri Thomas

5th Defendant

Alex Vichidvongsa

6th Defendant

Sharon Menezes

7th Defendant

Sorine Martinolli

8th Defendant

Anshu Kohli

9th Defendant

Procedural Posture

Procedural and Other Rulings / Orders on Summary Dismissal and Notices of Motion

Legal Issues

  1. 1 Whether the proceedings disclose a reasonable cause of action against each defendant
  2. 2 Whether witness immunity applies in Fair Work Commission proceedings
  3. 3 Whether giving evidence in Fair Work Commission is 'in trade and commerce'

Ratio Decidendi

All claims against first, second, third, fifth, sixth, eighth, and ninth defendants, and damages claims against the fourth defendant, are summarily dismissed as not disclosing any reasonable cause of action, being untenable given statutory and contractual requirements, jurisdictional bars, and statutory/witness immunities. Plaintiff's motions for immediate release of monies and evidentiary notices are dismissed or set aside as irrelevant, oppressive, or not meeting procedural requirements. Plaintiff failed to establish entitlement to payments or damages absent insurer's formed opinion or procedural compliance.

Court Disposition

Claims summarily dismissed as against relevant defendants; costs ordered; remaining aspects of litigation stood over for directions.

Orders

  • Dismiss the plaintiff's motion for immediate release of monies.
  • Dismiss proceedings as against first, eighth, and ninth defendants (UCPR r 13.4).