Herbert v American Express Australia Limited

By statement of claim filed on 2 December 2016 Denise Herbert, the plaintiff, claimed various sums including: loss of salary; retrenchment monies; Total and Permanent Disabilities monies; lump sum for whole body impairment; an amount for the first 13 weeks following injury; an amount for the weeks 13-130 following injury; and the sum of $5 million for exemplary damages.

These claims were made against seven defendants: American Express Australia Ltd (Amex), the first defendant; Mercer Superannuation (Australia) Limited (Mercer), the second defendant; The National Mutual Life Association of Australasia Ltd (AMP), the third defendant; New South Wales Workers Compensation Commission (the Workers Compensation Commission), the fourth defendant; Jeri Thomas, the fifth defendant; Alex Vichidvongsa, the sixth defendant; and Sharon Menezes, the seventh defendant.

On 27 January 2017, the plaintiff filed an amended statement of claim which corrected the name of Mercer and which added two further defendants: Sorine Martinolli, the eighth defendant; and Anshu Kohli, the ninth defendant.

Each party, or group of parties, filed a notice of motion. The five motions, which were heard together, were as follows.

Because of the overlap in the notices of motion, I propose to set out the background, evidence and submissions relating to all notices of motion, before considering whether any applicant is entitled to the relief claimed.

By reason of the relief sought in the defendants’ motions, it is not appropriate to make factual findings. However, the evidence adduced on the motions (by way of affidavit or documents tendered) provided a framework of objective facts against which the applications, including the plaintiff’s application for payments, are to be considered.

By letter of offer dated 28 February 2012, Amex offered employment to the plaintiff in the full-time permanent position of Customer Care Professional – Credit Services. The plaintiff accepted the offer on 5 March 2012 and commenced employment in that position on 1 March 2012.

As an employee of Amex, the plaintiff was entitled to have her superannuation benefits administered by Mercer through the Mercer Super Trust. The Product Disclosure Statement issued by Mercer on 1 July 2012 disclosed, in paragraph 8, that:

Mercer issued a document to employees covered by the Mercer Super Trust, which was entitled “Guide to Claiming a Total and Permanent Disablement (TPD) Payout” (the Mercer Guide). On page 6 of the Mercer Guide, the following appears:

A similar point appears on page 7, as follows:

Clause 1.1 of the Consolidated Designated Rules for the Mercer Master Fund (the Mercer Rules) relevantly contained the following definitions:

Clause 14.4(a)(ii)(C)(I) of the Mercer Rules provided that if the risk was insured, the Trustee (Mercer) was obliged to reduce any benefit which was otherwise payable on the disablement of a Member concerned if the insurer (AMP) did not admit or pay all of a claim in respect of a Member.

The Schedule for the Mercer SmartSuper Plan (Appendix 1 of the Mercer Rules) defined the term “Insured Benefit” in S1 as follows:

The provision for TPD benefits, S5.1, provided as follows:

The insurer for the Mercer Super Trust was, at the relevant time, The National Mutual Life Association of Australasia Ltd (which later became AMP). The relevant policy document, AXA’s Group Insurance Policy document for the Mercer Super Trust, effective 1 July 2012, (the Policy) provided that there were two types of insurance cover provided under the Policy: group life cover, which provided benefits on the death or TPD of a person insured; and total but temporary disability cover (TTD). The Policy provided for a waiting period of 90 days for TTD benefits (page 16).

The expression “total and permanent disablement” was defined at pages 13-14 of the Policy to mean, relevantly:

I was informed that there was no issue about (i) above and that the only issue relates to (ii) above.

Part A of the Policy dealt with TPD and death benefits; whereas Part B dealt with TTD benefits. Clause A7.1 imposed an obligation on the person insured when making a claim, as follows:

As the trustee of the Mercer Super Trust, Mercer was also the owner of the Policy. The relevance of this matter for present purposes is that Mercer was the party which corresponded with the AMP, the insurer, in respect of any claim for TTD or TPD benefits made by an employee, or former employee, of Amex, such as the plaintiff.

On 5 August 2014 the plaintiff suffered a stroke which resulted in a degree of disability. On 13 August 2014 an incident report form was filled in regarding the incident.

On 29 July 2015 Amex notified the plaintiff that she had been dismissed on 2 September 2015 on the grounds of redundancy.

The plaintiff brought proceedings in the Fair Work Commission, claiming relief on the basis that her dismissal was unfair under s 394 of the Fair Work Act 2009 (Cth). On 8 December 2015 there was a hearing in the Fair Work Commission before Deputy President Lawrence in the course of which Amex presented its case that the plaintiff was dismissed on the basis of a genuine redundancy. The transcript of proceedings, which was in evidence on the motions, revealed that Amex called two witnesses: Ms Martinolli and Ms Kohli. Both witnesses were sworn and, on oath, adopted their witness statements, which were dated 6 November 2015 and 9 November 2015 respectively. Mr Herbert, who also appeared on behalf of the plaintiff in the Fair Work Commission, had the opportunity to cross-examine both witnesses. Mr Herbert did not challenge the correctness of any matter in the witness statements. His cross-examination was confined to obtaining confirmation from each of them that the team to which the plaintiff belonged when working at Amex was known as the “past due team”.

By decision published on 7 March 2016 Deputy President Lawrence found that the plaintiff’s dismissal was a genuine redundancy pursuant to s 389 of the Fair Work Act and dismissed her claim for relief accordingly: Herbert v American Express Australia Ltd [2016] FWC 1398 (the Fair Work Commission Decision).

On 14 October 2014 the plaintiff lodged a claim for the payment of TTD benefits, which was forwarded by Mercer to AMP, which accepted the claim. As the Policy provided for a waiting period of 90 days (from the date of the relevant incident, being her stroke) the plaintiff did not become entitled to TTD benefits until November 2014.

On 22 December 2014 the plaintiff commenced proceedings 14/61687 in New South Wales Civil and Administrative Tribunal (NCAT) against Amex, Mercer and AMP by filing a “Consumer Claim Application about Goods and Services”. She alleged that the conduct of Amex, Mercer and AMP in refusing to advance TTD benefits before the expiry of the waiting period was a breach of contract and unconscionable within the meaning of cl 21(1) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) and claimed damages of $74,400.

On 31 January 2015 the plaintiff amended her claim by reducing the amount claimed to $32,400.

The respondents contended that NCAT did not have jurisdiction to entertain the claim. On 18 March 2015 NCAT decided that it had jurisdiction to hear and determine the plaintiff’s claim on the merits. NCAT ultimately dismissed the plaintiff’s application on substantive grounds on 1 May 2015 (the May 2015 NCAT Decision).

The plaintiff appealed from the May 2015 NCAT Decision to the Appeal Panel of NCAT. She added claims for breach of contract; breach of s 54 of the Insurance Contracts Act 1984 (Cth) and claims for misleading and deceptive conduct. On 23 February 2016 the Appeal Panel dismissed her appeal following a consideration of the merits: Herbert v American Express Ltd & Ors [2016] NSWCATAP 47 (the February 2016 NCAT Decision).

On 2 September 2016, the plaintiff commenced proceedings 16/39987 in NCAT against Amex, Mercer and AMP by lodging a “Consumer claim application about goods and services”. She claimed an amount of $12,655.23 and “redress under the Australian Consumer Law”. In her written submissions lodged with the application the plaintiff submitted, relevantly:

Annexure “A” was a letter dated 28 September 2015 from Mercer, on behalf of the plaintiff, to AMP, in which Mercer notified AMP that the plaintiff wanted to initiate a TPD claim. The letter identified the “TPD GL amount” as $137,127.62 and made the following request:

Each of the respondents in NCAT raised jurisdictional points, which were dealt with by NCAT on the papers. On 21 December 2016, NCAT dismissed the proceedings under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) on the basis that they were an abuse of process and misconceived: Herbert v American Express Australia Ltd & Ors (No. 2) [2016] NSWCATCD 98 (the December 2016 NCAT Decision). The conclusion reached by NCAT was that the plaintiff was, in effect, claiming relief she could have claimed in the first NCAT proceedings.

The plaintiff has not lodged an appeal against the December 2016 NCAT Decision. I express no view about the correctness of the December 2016 NCAT Decision, which was not challenged in the present proceedings.

I was informed by Ms Davidson, who appeared for the Workers Compensation Commission, that the plaintiff made a claim for workers compensation payments under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The plaintiff applied to the Workers Compensation Commission for an interim payment direction under the 1998 Act. The workers compensation insurer notified that there was a reasonable excuse for not commencing the payment of that claim. In October 2014 a delegate of the Registrar of the Workers Compensation Commission refused the plaintiff’s application on the basis that there was no evidence that established that the plaintiff’s employment was a contributing factor to the alleged injury, being the stroke. The workers compensation insurer subsequently notified its denial of liability in respect of the claim.

In October 2015 the plaintiff filed an application in the Workers Compensation Commission to resolve a dispute. In November 2014 a senior arbitrator of the Workers Compensation Commission resolved that dispute in favour of the employer, Amex. The plaintiff applied to appeal that decision. Subsequently the plaintiff requested a reconsideration of that decision pursuant to s 350 of the 1998 Act. During a teleconference in March 2015, the plaintiff, who was legally represented, elected to discontinue that application. An order giving effect to her election was made. In May 2015, the plaintiff filed a second application for an appeal against the senior arbitrator’s decision, which was rejected by the Workers Compensation Commission on the basis that it failed to comply with the procedural requirements of the 1998 Act, including as to the time for making an appeal.

There was a dispute as to whether or not the plaintiff’s second appeal application was within time which resulted in correspondence between the parties. Subsequently, the plaintiff made an application for external appeal to NCAT, including with respect of the senior arbitrator's decision in November 2014 and the decision in June 2015 to reject the second appeal application. On 11 February 2016, in Herbert v Workers Compensation Commission [2016] NSWCATAD 28, NCAT decided:

On 7 October 2014 the plaintiff applied for release of her superannuation benefits on compassionate grounds. On 4 December 2014 Mercer approved the release of $6,499.08 from her member account balance.

By letter dated 8 April 2016 AMP wrote to Mercer, for the attention of Ms Menezes, regarding the plaintiff’s concurrent claims for TTD and TPD monies and said that it regarded the TTD claim as “tenuous”. It referred to: the lack of detail provided by the plaintiff’s general practitioner, Dr Lau; the report of Dr Teychenne dated 31 January 2015 in which he was unable to confirm the diagnosis; the report of Professor Anderson to similar effect; as well as the plaintiff’s failure to comply with requests either for information or that she attend independent medical examinations.

AMP also wrote to Mr Herbert (who was authorised by the plaintiff to act on her behalf) on 8 April 2016. It reiterated its request that the plaintiff furnish authorities to treating doctors to provide information to AMP; and provide the financial information requested. AMP also noted the plaintiff’s failure to attend various medical appointments which it had arranged. AMP said:

According to a letter dated 8 July 2016, Firths, solicitors, wrote to AMP on 13 May 2016 on behalf of the plaintiff seeking documentation regarding her claim, which was provided; and also sent to AMP an updated authority to act on the plaintiff’s behalf dated 7 June 2016. In its letter dated 8 July 2016, AMP informed Firths that the assessment of the plaintiff’s claim had been suspended pending the receipt of information from the plaintiff.

As at 30 June 2016 Mercer issued a statement to the plaintiff to inform her of her “super account balance”, which then stood at $4,988.80, which comprised a wholly preserved amount and was payable in the event of death or TPD.

On 24 August 2016 Mr Herbert, on behalf of the plaintiff, wrote to Mercer, in part as follows:

Mr Herbert referred to the Insurance Contracts Act 1984 (Cth) and the requirement for an insurer to act in good faith. He continued:

On 9 September 2016 Mercer, through its Senior Case Manager, Ms Menezes, wrote to the plaintiff informing her that the insurer has informed Mercer that it is unable to progress the assessment of her TTD and TPD claims until “outstanding information is received”. Mercer identified the following information as outstanding:

The letter said:

By letter dated 22 November 2016 Mercer wrote to the plaintiff, care of her husband, Mr Herbert, in response to his previous request, by letter dated 24 August 2016, that she be immediately paid her TPD insured benefit (around $137,000) and her super account balance (around $12,000). Mercer explained that AMP needed to obtain medical and other evidence before it could consider her eligibility for a TPD benefit. Mercer also said:

I note that the Federal Court approved the transfer of the life insurance business of The National Mutual Life Association of Australasia Ltd to AMP Ltd as and from 1 January 2017.

The plaintiff sought, by amended motion, payment of “retrenchment monies” of $6,000 and TPD benefits of $137,224.36. In essence this is a claim for summary judgment in respect of those aspects of the amended statement of claim.

The evidence relied on by the plaintiff in support of her claim for summary judgment, in addition to that which is set out above, is as follows.

In support of her motion, the plaintiff tendered medical evidence, including reports from Dr Lau and Dr Teychenne. In a report dated 10 November 2014 Dr Lau opined that the plaintiff was unfit for work “at present”; that her prognosis was guarded; and that with neuropsychological testing and counselling “she may be able to return to her pre-injury duties”. In December 2016 Dr Lau certified that the plaintiff had a diagnosis of “left cerebrovascular accident”; that her condition was permanent; that her symptoms were “right homonomous hemianopia, weakness, poor memory”; and that the prognosis was “poor”. He certified that the plaintiff was “unfit for work/study” from 1 December 2016 to 1 March 2017 inclusive”.

In a report dated 31 January 2015, Dr Teychenne opined that the plaintiff was not fit for the work she had been doing at the Amex call centre; and that her prognosis was “guarded”.

In her affidavit of 2 December 2016, the plaintiff deposed as to her current financial position. She referred to pages 6 and 7 of the Mercer Guide. She attached a medical certificate dated 2 November 2016 in which Dr Lau certified that she “has no current work capacity for any employment from 5 November 2016 to 5 February 2017”. Dr Lau provided the following answer to the query: “If no current work capacity, estimated time to return to any type of employment” - “Not known at present”.

Mr Herbert appeared by leave on behalf of the plaintiff. However, at times during the course of the hearing, the plaintiff, who was sitting beside him, rose to make a point or address me, apparently if she considered that her husband had not emphasised the point sufficiently or she wanted to speak for herself about a particular matter.

Mr Herbert submitted on behalf of the plaintiff that:

Mr White, who appeared with Mr Habashy on behalf of Amex, Ms Martinolli and Ms Kohli (the Amex parties), submitted that the plaintiff’s claim against the Amex parties was to be found in [16] of the amended statement of claim, which alleged as follows:

It was submitted on behalf of Amex that the claim, which could be construed in the following three different ways, ought be summarily dismissed:

The Amex parties submitted that this Court had no jurisdiction over the Fair Work Commission and that, accordingly, none of the bases for the claim set out above was within this Court’s jurisdiction. They submitted that remedies for unfair dismissal are dealt with in Part 3-2 of the Fair Work Act and appeals from such decisions are provided for in Part 5-1 of the Fair Work Act. They relied on the exception to the general conferral of federal jurisdiction on this Court for matters arising under the Fair Work Act in s 4(4)(ab) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). They relied on Maleknia v University of Sydney [2016] NSWCA 108 in which the Court of Appeal dismissed proceedings that had been commenced in respect of a decision of the Fair Work Commission on the basis that this Court had no jurisdiction.

Further, the Amex parties contended that the plaintiff’s claims against them in the present proceedings constituted an attempt by the plaintiff to re-litigate an issue which had been decided against her in the Fair Work Commission. They submitted that, even if this Court had jurisdiction to determine a matter arising under the Fair Work Act, the proceedings ought be dismissed against them because they amounted to an abuse of process.

The Amex parties relied on authorities which suggested that the principles of res judicata and issue estoppel apply in respect of decisions of NCAT (Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Ltd [2015] NSWSC 289; (2015) 18 BPR 35,471 at [39] per White J). However, they accepted that these principles may not apply to claims in the Fair Work Commission and proceedings in the Federal Court (Dafallah v Fair Work Commission (2014) 225 FCR 559; [2014] FCA 328 at [58], [59] and [63] per Mortimer J). The Amex parties submitted that the Court may nonetheless exercise its powers to stay permanently or dismiss proceedings on the ground that they constitute an abuse of process where there is not merely an overlap of facts, but a "[r]e-litigation, or re-agitation, of precisely the same issues or disputes" (Dafallah v Fair Work Commission at [60]-[61]), or where the relief sought and the criterion for such relief is the same as in the earlier Fair Work Commission proceeding (Miller v University of New South Wales (2003) 132 FCR 147; [2003] FCAFC 180 at [82] per Gray, Ryan and Gyles JJ).

The Amex parties submitted that the plaintiff’s claim against it depends on the effect of her dismissal which was the same issue litigated in the Fair Work Commission. They contended that even if (contrary to their primary submission) I was satisfied that this Court had jurisdiction with respect to the plaintiff’s claim, this Court would be required to determine a matter already determined by the Fair Work Commission, namely whether the plaintiff's dismissal was a genuine redundancy pursuant to s 389 of the Fair Work Act, which would amount to an abuse of process.

The Amex parties submitted that representations made in the course of a hearing are not made in trade or commerce, and, for at least that reason, no claim based upon a false or misleading representation could be entertained under the Fair Trading Act 1987 (NSW) or the Australian Consumer Law: Little v Law Institute of Victoria (No. 3) [1990] VR 257 at 273-275 per Kaye and Beach JJ and at 292 per Ormiston J.

Further, the Amex parties submitted that the doctrine of witness immunity is fatal to the claim. They contended that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings, even if that evidence is false or malicious: Cabassi v Vila (1940) 64 CLR 130 at 140-141. They relied on the following passage from D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [39]:

The Amex parties also submitted, on the basis of Commonwealth of Australia v Griffiths (2007) 70 NSWLR 268; [2007] NSWCA 370 (at [42] per Beazley JA; Mason P agreeing at [1]; and Young CJ (in Eq) at [152]), that the doctrine operates to exclude any claims based on the conduct of witnesses and therefore there could be no vicarious liability for the conduct of witnesses.

The Amex parties submitted that the doctrine of witness immunity applies, by analogy, to persons giving evidence before a tribunal authorised by law to conduct an inquiry proceeding judicially, that is, in a manner similar to the way a court operates. They relied on Tampion v Anderson [1973] VR 321 at 332-334 per Mclnerney J and also submitted that Anderson J in James v Medical Board of South Australia and Keogh (2006) 95 SASR 445; [2006] SASC 267 appeared to suggest that the common law immunity would apply to proceedings brought before the Medical Board. They submitted that, on the basis of these authorities, proceedings of the Fair Work Commission would also attract the immunity.

Mr Koch, who appeared on behalf of Mercer, submitted that the whole of the plaintiff’s claim against it was to be found in [15] of the amended statement of claim, which alleged as follows:

As I understand the pleading, having heard from Mr Herbert, the plaintiff’s claim against Mercer is for payment of the balance of her superannuation account; her TPD monies; and an amount of $2 million damages for disappointment and distress on the basis of Baltic Shipping Company v Dillon by reason of the circumstance that she has had to wait for these monies to be paid.

Mr Koch submitted that combined effect of the Mercer Rules and the Policy is the plaintiff is only entitled to the value of her account balance ($4,988.80 as at 30 June 2016); and the TPD benefit paid to Mercer by AMP under the Policy ($137,224.36) if AMP determines that she has a disablement that qualifies as a total and permanent disablement under the Policy. Under the Policy, this determination will only occur if:

Mr Koch submitted that, because the plaintiff had failed to comply with requests to provide information and attend appointments, AMP had not made any determination as to whether any disablement of the plaintiff is “Total and Permanent Disablement”. Mr Koch argued that, in these circumstances, neither of the benefits claimed was payable. He noted that the plaintiff has not applied for early release of her Member Account Balance. Accordingly, he contended that there was no arguable basis for the plaintiff to be entitled to the sums claimed and that her claim against Mercer ought be summarily dismissed.

As to the amount of $2 million, Mr Koch submitted that there was no discernible basis for the claim, which accordingly ought be dismissed as disclosing no cause of action.

Mr Koch also relied on the submissions made by Amex, set out above, on the question of summary dismissal on the basis of res judicata or issue estoppel.

The plaintiff served a notice to produce on Mercer, which required production of the following documents:

Mr Koch submitted that the notice to produce ought be set aside since the documents described in the notice were not relevant to any fact in issue in the proceedings; and, in the case of paragraph 1, the description of the documents sought was too broad.

Mr Walsh, who appeared on behalf of AMP, Mr Thomas and Mr Vichidvongsa (the AMP parties), submitted that the whole of the plaintiff’s claim against AMP was to be found in [15] of the amended statement of claim (as set out above). He submitted on behalf of AMP that the plaintiff had made numerous claims in various tribunals arising out of the same underlying facts and that the present proceedings were an attempt to re-litigate issues on which she had been unsuccessful elsewhere.

Mr Walsh contended that the December 2016 NCAT Decision was a “final judgment in an adversarial proceeding” capable of giving rise to the three forms of estoppel addressed by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 at [22] being, cause of action estoppel (or res judicata in a court); “issue estoppel”; and Anshun estoppel, which operates to preclude the assertion of a claim in subsequent proceedings in circumstances where it was not reasonable to not raise that claim in earlier proceedings.

Mr Walsh submitted that if I were not persuaded that the proceedings should be summarily dismissed against AMP, the pleadings containing allegations affecting them ought be struck out as they were embarrassing in that the AMP parties were unable to discern the case made against them.

Mr Walsh submitted that, although Mr Thomas and Mr Vichidvongsa were named as defendants, no allegations were made against them. He contended that, as they were not parties to the Policy, there was no basis for any allegation that they owed any duty to the plaintiff and therefore no basis for any allegation of breach. He submitted, accordingly, that the proceedings ought be dismissed against them.

By notice to produce, the plaintiff sought production from AMP of the following documents:

By notice to produce, also dated 16 December 2016, the plaintiff sought production from Mr Thomas of the following documents:

By notice to produce, also dated 16 December 2016, the plaintiff sought production from Mr Vichidvongsa of the following documents:

Mr Walsh submitted that each of the three notices of motion should be set aside.

Ms Davidson submitted that, consistent with the well-established principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, the Workers Compensation Commission takes no active role in the proceedings insofar as it concerns or calls into question the correctness of decisions it made in the plaintiff’s case. She foreshadowed the intention of the Workers Compensation Commission, if the relief sought in its notice of motion is granted, to file a submitting appearance in accordance with The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman. Ms Davidson confirmed that the Workers Compensation Commission’s motion for summary dismissal, or, in the alternative, strike out, was limited to that part of the plaintiff's claim which seeks damages against the Workers Compensation Commission; in particular, [12] of the amended statement of claim which alleges:

Ms Davidson submitted that the amended statement of claim failed to disclose any reasonable cause of action against the Workers Compensation Commission; or that it did not do so with sufficient clarity to apprise the Workers Compensation Commission of the case it is required to meet; and that any relevant cause of action would, in any event, be wholly met by a statutory immunity conferred upon members of the Workers Compensation Commission by the 1998 Act.

Ms Davidson relied on the following statutory provisions in support of this submission. Section 366(a) of the 1998 Act established the Workers Compensation Commission. Section 368(1) provided that it "consists of the following members: (a) a President, (b) Deputy Presidents, (c) a Registrar, (d) Arbitrators". The Workers Compensation Commission "has and may exercise such functions as are conferred or imposed on it by or under the Workers Compensation Acts or any other Act": s 366(2). The "Workers Compensation Acts" referred to include the 1998 Act and the Workers Compensation Act 1987 (NSW) (the 1987 Act): s 4 of the 1998 Act. The functions conferred on the Commission included the "exclusive jurisdiction to examine, hear and determine all matters arising under [the 1998 Act] and the 1987 Act: s 105(1) of the 1998 Act. Section 373 of the 1998 Act gave effect to the provisions of Sch 5 to the 1998 Act with respect to the members of the Commission. Clause 3 of Sch 5 provided that a member of the Workers Compensation Commission "has, in the performance of functions performed as a member, the same protection and immunities as a Judge of the District Court".

A Judge of the District Court is a "judicial officer" within the meaning of the Judicial Officers Act 1986 (NSW). Section 44B of the Judicial Officers Act confers on a Judge of the District Court "in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge". Ms Davidson submitted that s 44A of the Judicial Officers Act makes "clear" that "the content of the immunity continues to be determined by the common law": Yarraford Pastoral Co Pty Ltd v Registrar of the Downing Centre Local Court [2013] NSWSC 293 at [23] per Campbell J. She contended, accordingly, that the effect of the 1998 Act is to confer on members of the Workers Compensation Commission, in the performance of functions performed as a member, a statutory immunity equivalent to that conferred on Judges of the Supreme Court at common law and recognised in s 44A of the Judicial Officers Act.

Ms Davidson submitted that the immunity covers claims for damages brought by an aggrieved litigant against the Workers Compensation Commission and relied on Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at 185-186 [36]-[37] per Gleeson CJ. She accepted that the interaction between judicial immunity and the tort of misfeasance in public office is not settled in Australian law and drew my attention to a dictum in the Victorian Court of Appeal to the effect that notwithstanding judicial immunity "it would seem that the operation of the tort may extend to the wrongful exercise by a holder of public office of a judicial power where that power is sought to be exercised without jurisdiction and in bad faith": Cannon v Tahche (2002) 5 VR 317 at 336 [48] per Winneke P, Charles and Chernov JJA; see also Rawlinson v Rice [1998] 1 NZLR 454.

Ms Davidson noted that the plaintiff's claim for exemplary damages and damages for disappointment and distress was said to be based on: "Common Law (Contract Dispute)" and "Mercantile Law (Sale of goods and services)". She submitted that no cause of action against the Workers Compensation Commission is pleaded and that there is no allegation that it is party to any contract. She submitted that the effect of the pleading was to allege that the Workers Compensation Commission had not exercised its statutory powers correctly, which were matters within the statutory immunity. Ms Davidson also contended that, even if the plaintiff’s claim was based on negligence, it would also be covered by the statutory immunity referred to above, which is conferred on the Commission’s members.

Finally, Ms Davidson submitted that, to the extent that it may be arguable, as a matter of law, that the statutory immunity would not preclude an action for the intentional tort of misfeasance in public office, this hypothetical argument cannot save the plaintiff’s claim. First, the tort is not pleaded. Secondly, the tort is not capable of being pleaded against “the Workers Compensation Commission". Thirdly, if it were to be pleaded against a proper defendant, it would have to be alleged, among other things, that the public official acted in bad faith, doing what he or she knows he or she has no power to do. She argued that the facts disclosed in the pleading, taken at their highest, give no basis on which such an allegation could properly be made against any member of the Workers Compensation Commission.

The plaintiff sought production of the following from the Workers Compensation Commission by Friday 27 January 2017.

The Workers Compensation Commission responded to the Notice to Produce by offering to provide to the plaintiff copies of her application to the Commission and the decisions of the Commission. Production of the balance of the documents sought was resisted on the basis that such documents were neither relevant to a fact in issue in the proceedings, nor clearly identified, as required by UCPR r 21.10(1)(b).

It is well-established that a claim will not be summarily dismissed unless it is so obviously untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. A claim is to be assessed against this standard assuming the truth of all the allegations in the statement of claim. If a claim is untenable in this sense, then it may be summarily dismissed (under UCPR r 13.4), or alternatively struck out if no reasonable cause of action might be pleaded (under UCPR r 14.28). A claim may be struck out, additionally, if allegations are made at such a level of generality that the defendant does not know in advance the case it has to meet: McGuirk v University of New South Wales [2009] NSWSC 1424. Summary judgment on a plaintiff’s claim (under UCPR r. 13.1) is only appropriate where there is no issue to be tried and where there is evidence from a responsible person as to that person’s belief that there is no defence to the plaintiff’s claim.

UCPR r 21.10 enables a party to serve a notice on another party to produce documents for inspections. Such documents must be “clearly identified in the notice” and be “relevant to a fact in issue” (UCPR r 21.10(1)(b)).

Although the plaintiff’s motion and the defendants’ motions are, in a sense, two sides of the same coin, I propose to address the plaintiff’s motion separately first.

By her amended notice of motion, the plaintiff, in effect, seeks against Mercer summary judgment of that part of her claim that relates to the payment of what she has described as “Retrenchment Monies” of $6,000 and “Total and Permanent Disabilities Monies” (TPD Monies) of $137,224.36.

The contractual provisions set out above have the effect that the plaintiff would only be entitled to Retrenchment Monies and TPD Monies if, in the opinion of AMP, she had become incapacitated to such an extent as to render her unlikely to be able ever to engage in remunerative work: S5.1 of the Mercer Rules; and the definition of TPD at pages 13-14 of the Policy. The insurer is obliged to act reasonably: Edwards v The Hunter Valley Co-Op Dairy (1992) 7 ANZ Ins Cas 61-113 at 77,536; approved in TAL Life Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at 454. The insured, in this case the plaintiff, has an obligation to co-operate with reasonable requests by the insurer for information germane to the opinion to be formed by AMP: cl A.7.1(c) of the Policy.

In the present case, it was apparent from the submissions made on behalf of the plaintiff (which is supported by the evidence adduced by the defendants) that she did not accept this construction of the contract and contended that she was entitled to the Retrenchment Monies and the TPD Monies in any event, irrespective of her physical condition, merely by reason of the termination of her employment. She also contended that she was not obliged to provide information or attend examinations as requested by AMP. These submissions are at odds with the Policy, which expressly provides that the entitlement to the monies is limited to instances where an insured is, in the opinion of AMP, totally and permanently incapacitated. Section 54(1) of the Insurance Contracts Act does not have the effect for which Mr Herbert contended on her behalf.

Mercer’s obligation is confined to payment to the plaintiff of her account balance ($4,998.80 as at 30 June 2016) if she is found to be TPD: S5.1(a) of the Mercer Rules. The definition of TPD under the Mercer Rules incorporates the definition in the Policy. Therefore there is no obligation on Mercer to pay the account balance unless and until AMP has decided that, in its opinion, the plaintiff is TPD (as defined). Mercer has no obligation to pay the TPD Monies to an insured unless it has received the TPD Monies from the insurer: S5.1(b) and the definition of “Insured Benefit” in S1 of Appendix 1 to the Mercer Rules.

Moreover, to the extent to which the plaintiff’s interpretation gains some support from the statements at pages 6 and 7 of the Mercer Guide (extracted above), the statement must be read in context. Although the representation was made that members of the Mercer Super Trust would receive a “super payout” equal to their “super account balance” when they leave their employer by resigning, retiring or being retrenched, this representation is qualified by the statements about “preserved” benefits. It is plain from the terms of the Policy and the Mercer Rules that the super account balance can only be released on compassionate grounds, or, if the member is relevantly classified as TPD.

The plaintiff has not established any entitlement to summary judgment, or interim relief, of the monies of which she seeks immediate release in the amended notice of motion. Accordingly, her amended notice of motion, in so far as it seeks such relief, ought be dismissed.

The Federal Court has exclusive jurisdiction in relation to any matter (whether civil or criminal) arising under the Fair Work Act: s 562. This Court has no jurisdiction with respect to any matter arising under the Fair Work Act: s 4(4)(ab) of the Jurisdiction of Courts (Cross-Vesting) Act (Cth); Maleknia v University of Sydney. Accordingly, this Court is prohibited from: entertaining an appeal from the Fair Work Commission’s rejection of the plaintiff’s unfair dismissal claim; or re-hearing that claim. In these circumstances, it is neither necessary, nor appropriate, to express a view on whether, if this Court had jurisdiction, the proceedings in this Court would amount to an abuse of process on the ground that the plaintiff seeks to re-litigate issues decided against her in the Fair Work Commission.

The balance of the plaintiff’s claim against the Amex parties is based on the allegation that Ms Martinolli and Ms Kohli gave misleading evidence in the Fair Work Commission. Section 579 of the Fair Work Act provides that the Fair Work Commission “has the privileges and immunities of the Crown in right of the Commonwealth”. Section 580 provides that a Member of the Fair Work Commission has, in performing his or her functions or exercising his or her powers as such a member, the same protection and immunity as a Justice of the High Court. However, there does not appear to be any express statutory immunity granted to witnesses who give evidence in a hearing before the Fair Work Commission.

When considering whether immunity would arise at common law in relation to witnesses who give evidence in proceedings before tribunals, the question whether a tribunal is required to act judicially is a relevant factor. The requirement to act judicially is not a reference to the exercise of judicial power, which Commonwealth tribunals and commissions are prohibited from exercising: The Queen v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Rather, it is a question of procedure. In Tampion v Anderson, at 333, McInerney J summarised the indicia which would tend towards the conclusion that the common law immunity would cover witnesses who gave evidence before a particular tribunal or commission as follows:

The Fair Work Commission has power to conduct hearings and hear evidence from witnesses who give evidence on oath and may be cross-examined. The members of the Fair Work Commission (and those of its statutory predecessors, the Commonwealth Conciliation and Arbitration Commission and the Australian Industrial Relations Commission) are obliged to act “judicially” in that they are bound to afford procedural fairness and impartiality: Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; [2011] FCAFC 54 at [25]; The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552. Its members have the same immunity as is accorded to judges of the High Court. In these circumstances, I consider there to be significant force in the argument that the common law immunity for witnesses would protect witnesses who appear and give evidence before the Fair Work Commission from civil action taken against them in respect of statements made in the course of giving such evidence. However, against this argument, it must be acknowledged that Parliament has expressly conferred protection on the members of the Commission, but not on witnesses.

The Amex parties relied on what Anderson J said in James v Medical Board. However, in that case, witness immunity had been expressly granted by statute (s 16(4) of the Medical Practitioners Act 1983 (SA)) and the question was only whether the evidence of Dr James, who gave evidence in criminal proceedings, could be the subject of complaint to the Medical Board. The Court refused to grant an injunction to restrain the Medical Board from hearing the complaint. Justice Bleby said, at [4]:

Justice Anderson said, at [91]:

In my view, the question whether a witness who gives evidence in the Fair Work Commission is immune from suit does not need to be decided for the purposes of the present application. The evidence given by Ms Martinolli and Ms Kohli in the proceedings brought by the plaintiff in the Fair Work Commission was not, in my view, conduct “in trade or commerce” within the meaning of s 18 of the Australian Consumer Law or s 42, the corresponding provision, of the Fair Trading Act. The limitations of such provisions were considered in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594. The plurality (Mason CJ, Deane, Dawson and Gaudron JJ) said at 604 that s 52 (of the Trade Practices Act 1974 (Cth), the statutory predecessor to s 18 of the Australian Consumer Law) was concerned with conduct of a corporation towards persons with whom it may have dealings which bear a trading or commercial character. That the plaintiff was employed by Amex, which also employed Ms Martinolli and Ms Kohli; that the proceedings concerned the termination of the plaintiff’s contract of employment; and that Amex conducted its business for profit are not sufficient to give the statements and evidence given by Ms Martinolli and Ms Kohli the necessary commercial flavour to attract the operation of the sections.

Although there are differences between a court and the Fair Work Commission, these differences are not material to the question whether evidence given on oath or statements made for the purposes of proceedings amounts to conduct “in trade or commerce”. In these circumstances I regard the decision of the Victorian Full Court in Little v Law Institute of Victoria at 273 per Kaye and Beach JJ and at 292 per Ormiston J as providing guidance. Their Honours struck out and permanently stayed a claim based on a statement made by the secretary of the Law Institute of Victoria to the trial judge during the course of a hearing. I am satisfied that the proceedings against Ms Martinolli and Ms Kohli ought be summarily dismissed on the ground that they disclose no reasonable cause of action.

In summary, in my view, the claims against Amex ought be summarily dismissed as this Court has no jurisdiction to entertain them. In any event, they disclose no reasonable cause of action. The claims against Ms Martinolli and Ms Kohli ought be summarily dismissed as the amended statement of claim discloses no reasonable cause of action against them since it is not arguable that their giving of evidence in the Fair Work Commission was conduct “in trade or commerce”. These are matters which cannot be remedied by better pleading and therefore it is appropriate that the claims be summarily dismissed rather than that the amended statement of claim be struck out with leave to replead.

For the reasons given above in relation to the plaintiff’s amended notice of motion, I accept Mr Koch’s submission that the plaintiff has no reasonably arguable claim to be entitled to her account balance or the TPD benefit. She has failed to co-operate with the insurer in that she has refused to attend examinations or provide information or authorities to enable an opinion to be formed as to whether she meets the requirements of TPD. She has purported to justify her refusal on the ground that she is not required to co-operate in circumstances where there is a clear contractual obligation on her to do so. It is not arguable that there is any breach by Mercer when she has no present entitlement to the account balance and no payment has been made by AMP to Mercer.

Although matters of issue estoppel and abuse of process have also been raised, I consider that the claims by the plaintiff against Mercer ought be summarily dismissed on the ground that they disclose no reasonable cause of action. The claim for damages for disappointment is without identifiable foundation and appears to be based on a misreading of the authorities. In these circumstances the claims against Mercer ought be dismissed under UCPR r 13.4.

As the plaintiff’s claim against Mercer ought be summarily dismissed, there is no forensic purpose in allowing the notice to produce to stand. However, as I have come to the view that it should be struck out, in any event, I shall express brief reasons for this conclusion. Paragraph 1 of the notice to produce would appear to be irrelevant since the plaintiff relies on the document the subject of the paragraph. Paragraph 2 of the notice to produce appears to be an application for general discovery but no connection has been demonstrated between the request and any issues between the plaintiff and Mercer. As to paragraphs 3, 4 and 5 of the notice to produce, Mercer’s income tax and financial situation; and the wages it pays its employees have no relevance to any issue in the proceedings and therefore should be struck out. As to paragraph 6 of the notice to produce, it is difficult to see what relevance the phone records could have to the issues in the proceedings. Paragraph 7 of the notice to produce seeks documents which have no relevance to the proceedings since the plaintiff accepted that she had been paid some monies from her account balance and amended her notice of motion to reflect the reduction accordingly. As to paragraph 8, the payments to others who established an entitlement to TPD monies, is irrelevant to whether the plaintiff herself qualifies for such monies.

For these reasons, the whole of the notice to produce served on Mercer by the plaintiff should be set aside.

In the December 2016 NCAT Decision, NCAT dismissed the plaintiff’s claim for TPD monies against AMP, and others, on the basis that it was an attempt to re-litigate issues which had been decided against her in the February 2016 NCAT Decision. If the plaintiff wished to argue that the December 2016 NCAT Decision was wrong, she ought to have challenged that decision. Instead, she has chosen to leave that decision unchallenged and seek the TPD monies in this Court. I am persuaded that this amounts to an abuse of process of this Court and ought lead to summary dismissal of the plaintiff’s claim against AMP.

The plaintiff has not identified any conceivable cause of action against either Mr Thomas or Mr Vichidvongsa, who appear to have been joined as defendants, notwithstanding that no allegations have been made against them, on the basis of a misapprehension on the part of the plaintiff or her husband that it was necessary for them to name as defendants anyone whose name appears on a document or piece of correspondence sent by his or her employer. As no reasonable cause of action is disclosed against either Mr Thomas or Mr Vichidvongsa, the proceedings as against them ought be summarily dismissed.

The evidence established that the claims documents held by AMP have been provided to the plaintiff (page 9 of Ex 3D1). In so far as paragraph 1 of the Notice to Produce issued to the AMP seeks other documents, no arguable relevance of those documents has been identified. As to paragraph 2 and 3 of the Notice to Produce, the financial situation of AMP as revealed by the documents sought does not appear to be relevant to any issue raised in the proceedings. Accordingly the Notice to Produce to AMP ought be set aside.

Paragraph 1 of the Notice to Produce issued to Mr Thomas and the corresponding paragraph of the Notice to Produce to Mr Vichidvongsa appear to seek general discovery. Aside from the documents relating to the claim (which have already been provided by AMP) the relevance of the documents sought has not been identified. As to paragraph 2, which seeks documents relating to the recipients’ qualifications, the documents covered by this paragraph are not relevant in circumstances where the reason AMP has not come to an opinion whether the plaintiff is TPD is that insufficient information has been provided and she has failed to attend examinations. In these circumstances, the recipient’s qualifications are irrelevant. The relevance of the terms of their employment contracts or their own financial circumstances has not been identified. Accordingly paragraphs 3 and 4 of both Notices to Produce must also be set aside.

I accept Ms Davidson’s submission that the effect of cl 3 of Sch 5 to the 1998 Act and s 44B of the Judicial Officers Act is to render the Workers Compensation Commission and its members immune from a claim for damages by an aggrieved litigant. I also accept her submission that, in so far as there may be a hypothetical exception to the immunity in the form of a claim for damages for the intentional tort of misfeasance in public office, no relevant facts are pleaded which could permit the conclusion that any such cause of action is alleged. Nor does any basis appear for any allegation that could permit such a cause of action to be maintained. A charge of that nature ought not be allowed to be made without being specifically pleaded: Pharm-a-care Laboratories Pty Ltd v Commonwealth (No.3) (2010) 267 ALR 494 at 512; [2010] FCA 361 at [68] per Flick J.

The orders sought by the Workers Compensation Commission are crafted so as to respect the principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman. I am persuaded that it is appropriate to make orders in the terms sought. The claim for damages against the Workers Compensation Commission is so untenable that it should be summarily dismissed pursuant to UCPR r 13.4.

A perusal of the documents, or categories of documents sought in the notice to produce addressed to the Workers Compensation Commission reveals a misapprehension of the requirements and purpose of such a notice. As appears from the summary set out above, the plaintiff claimed workers compensation payments but her claim was denied on the basis that there was no evidence that established that her stroke was contributed to by her employment. Subsequently the plaintiff elected to discontinue her application to appeal that decision. When she filed a further application for appeal, it was rejected as it failed to comply with procedural requirements. In these circumstances, the documents sought in paragraph 1 of the notice to produce have no bearing on the issue of the finality of the decisions of the Workers Compensation Commission referred to above. Paragraph 2 of the notice, which requires production of documents relating to the Commission’s financial circumstances, does not seek any document which could conceivably be relevant to a fact in issue. The same could be said of paragraph 3, which seeks details of the remuneration of various persons employed by the Commission. Indeed, the requests are not only oppressive, but they are also vexatious, since they seek documents which have nothing to do with the plaintiff’s claim. The notice appears to be worded in such a way as to cause disruption and, potentially, embarrassment to the Commission. For these reasons, the notice to produce must be set aside.

The plaintiff submitted that if she were unsuccessful in her motion or in resisting the defendants’ motions, the appropriate order was that each party pay his, her or its own costs. Neither Mr Herbert, nor the plaintiff herself, identified any reason why the plaintiff ought not be liable for the defendants’ costs if she was unsuccessful. Indeed, in her written submissions dated 8 February 2017, the plaintiff identified UCPR 42.1 and submitted that costs ought follow the event, unless it appeared to me that another costs order was appropriate.

The defendants sought costs, and, in the case of Mercer, costs were sought on an indemnity basis.

In my view, costs ought follow the event. The plaintiff has been wholly unsuccessful and the defendants have been wholly successful. No reason has been identified why the ordinary rule, that costs follow the event, ought not apply: UCPR 42.1. It follows that the plaintiff ought pay the costs of all the defendants both of their motions and of resisting her motion. I do not consider it to be appropriate to order that these costs be paid on an indemnity basis without hearing further from the parties in light of these reasons. Accordingly, I propose to make orders, which will stand unless any of the defendants make an application for a costs order on a higher basis within a period of seven days of publication of my reasons. In order to avoid further costs, I propose to deal with any such application on the papers.

The plaintiff filed an amended notice of motion at the commencement of the hearing of this matter on 27 March 2017. In so far as the plaintiff amended the amounts sought in her original notice of motion, there was no difficulty in dealing with the amended notice of motion on 27 March 2017. Prayer 4, which sought dismissal of the defendants’ notices of motion, referred to above, was otiose. As to prayer 5, I granted leave to Mr Herbert to appear on behalf of the plaintiff on 27 March 2017 and note that leave was not opposed by any party. Leave was also sought for the plaintiff to have subpoenas issued. It is not appropriate that leave be granted without any proposed subpoena being viewed in draft form. The plaintiff, by prayer 7, sought leave to amend her amended statement of claim. It was not appropriate to consider the application without notice to the parties or to the Court, of the draft pleading. As aspects of the proceedings remain on foot, including the claim against the Workers Compensation Commission (excluding the claim for damages which has been summarily dismissed) and the claim against Sharon Menezes (who did not appear), I propose to adjourn the balance of the proceedings to the Registrar for further directions to be made.

I make the following orders: