Herbert v American Express Australia Ltd and Ors

NCAT Consumer and Commercial|2016-12-21

REASONS FOR DECISION

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) provided to the Tribunal by the parties, without oral argument. There is no suggestion that the parties were not given an opportunity to address the Tribunal prior to the direction being made that jurisdiction be determined "on the papers"
According to the Tribunal's file, on 11 October 2016, the Registry sent to the respective parties a notice of hearing stating that the matter was listed for hearing at the Tribunal in Sydney at 9.15 am on 10 November 2016. The notice also relevantly stated: "Amended Notice: listed for Jurisdiction and determining correct Respondents. Matters to be listed on the papers. Parties need not attend".
I attended the hearing room of the Tribunal to which the matter was allocated in the notice of hearing at the time appointed in the notice of hearing. I waited in the Tribunal hearing room for 30 minutes. None of the parties appeared. I then left the bench. I informed the security officer on duty that, if any party attended the Tribunal, a message should be forwarded to me and I would reconvene on the bench. No message was received that any party had attended on 10 November 2016.
I am satisfied that no party attended the Tribunal on 11 October 2016 to make oral submissions. For reasons set out in detail below, the issue of jurisdiction is to be determined on the basis of the written material each party has provided to the Tribunal, including the written material attached to the application.

Jurisdiction of the Tribunal

Amex filed written submissions with the Tribunal dated 23 September 2016. The submission of Amex was that it has been improperly joined as a party to the proceedings because Amex had no involvement in the determination of whether or not funds be released (nor the date of their release) under the either the insurance policy or the superannuation policy, and accordingly there could be no arguable cause of action against Amex. Amex also stated that it had been provided with a copy of the written submissions of Mercer, and also adopted those submissions.
AMP filed written submissions with the Tribunal dated 22 September 2016. The submissions of AMP were that the applicant had made a claim for "Total and Permanent Disability (TTD) benefits" and the Appeal Panel of the Tribunal rejected the argument of the applicant that monies were payable during the 90 day waiting period under the policy. AMP submitted that the applicant had made a separate claim for a Total and Permanent Disablement (TPD) benefits under the policy in the sum of $140,000.00, but AMP had been unable to assess this claim as the applicant had refused to provide medical and financial information, and had also failed to attend medical appointments.
AMP submitted that the claim for TPD benefits was separate to the issue of whether superannuation contribution benefits should be released, which exclusively is the decision of Mercer, as trustee of the superannuation fund. AMP submitted that it should not be a party to the proceedings, as the proceedings were "misconceived and lacking in substance".
Mercer filed separate written submissions dated 23 September 2016 on the issues of jurisdiction, and Mr Herbert representing the applicant in the proceedings. On the issue of jurisdiction, Mercer submitted: 1. On 24 August 2016, Mercer received a written complaint by Mr Herbert on behalf of the applicant, a copy of which was annexed to the submissions. The complaint sought the release of the applicant's "Total and Permanent Disability (TPD) entitlements of "around $137,000.00" and "retrenched monies" of "around $12,000.00". According to Mercer, it had 90 days to consider the complaint, and if the complaint was not resolved, the applicant may apply to the Superannuation Complaints Tribunal. Mercer submitted that any further dispute between the applicant and Mercer is more appropriately determined by the Superannuation Complaints Tribunal. A copy of Mr Herbert's complaint was attached to Mercer's submission; 2. In any event, the Tribunal does not have jurisdiction in the matter, because the claim is not a "consumer claim" within the meaning of Section 79E of the Fair Trading Act 1987 ('the FTA'). Mercer submitted that the claim is not a claim for any remedy available under Section 79E of the FTA, but is a claim (against Mercer) for early payment of superannuation contributions. Mercer submitted that, as a superannuation trustee, it can only release monies if a condition of release has been satisfied under Division 6.3 of the Superannuation Industry (Supervision) Regulations 1994, and the applicant had not satisfied any condition of release; 3. If the Tribunal made an order that the superannuation contributions were payable, it would be making an order inconsistent with the duties of the trustee under the Superannuation Industry (Supervision) Act 1993 and Superannuation Industry (Supervision) Regulations 1994 and in respect of legislation over which it has no jurisdiction; 4. The current proceedings can be distinguished from the earlier proceedings on the issue of whether the Tribunal has jurisdiction, because the earlier proceedings related to a claim regarding the provision of insurance cover, which is a "service" within the meaning of Section 79F of the FTA; 5. If the Tribunal was satisfied that it had jurisdiction the proceedings in the Tribunal should not be heard until after any proceedings in the Superannuation Complaints Tribunal were determined. Although no proceedings in the Superannuation Complaints Tribunal had been commenced at the date of Mercer's submissions, Mercer submitted that such proceedings were likely if Mercer had not resolved the complaint of 24 August 2016 within 90 days. Mercer submitted that it would be inappropriate for there to be two sets of proceedings between the parties under separate statutory regimes with potential outcomes which could be inconsistent.

The Issue of Representation

The respondents also filed separate written submission on the issue of whether Mr Herbert should be granted leave under Section 45(1) (b) of the Civil and Administrative Act 2013 ('the NCAT Act') to represent the applicant.
Mercer's submissions on this issue are dated 23 September 2016. Mercer opposed the Tribunal granting leave to Mr Herbert to represent the applicant. On the issue of leave being granted for Mr Herbert to represent the applicant, Mercer submitted: 1. Mr Herbert had represented the applicant in the earlier proceedings (which were drafted by Mr Herbert), and the current application "repeats identical arguments" which were ventilated by Mr Herbert, causing the applicant to incur a costs order; 2. Mr Herbert's arguments and conduct in the earlier proceeding demonstrated a lack of understanding of the legal issues; 3. Mr Herbert had repeatedly failed to comply with directions of the Tribunal in the previous proceedings; had sought unwarranted adjournments; made "unfounded and serious allegations of fraud, professional misconduct and criminal conduct" against the respondents and their legal representatives; 4. Mr Hebert had made unfounded allegations of bias against the Members of the Appeal Panel who heard the appeal; 5. On 21 September 2016 at the Tribunal, Mr Herbert had threatened to submit a complaint to the NSW Legal Services Commissioner about the conduct of the Solicitor for Mercer. Mercer submitted that such a threat was made "in an attempt to intimidate the legal representative"; 6. The history of conduct of Mr Herbert acting as representative of the applicant in previous proceedings in the Tribunal demonstrated that he was unable to assist the Tribunal to understand the legal issues in dispute, and unable to act in the best interests of the applicant. Mercer relied upon the decision of the predecessor of the Tribunal in Department of Justice and Attorney General v AY (GD) [2010] NSWADTAP 17, where leave was refused to represent a party; 7. If the Tribunal determined that it had jurisdiction in the matter, Mercer did not oppose the applicant being legally represented, or represented by another person other than Mr Herbert.
Amex and AMP respectively wrote to the Tribunal stating that they opposed Mr Herbert being granted leave to represent the applicant, and relied upon the written submissions of Mercer.

Submissions of Mr Herbert on the Issues of Representation and Jurisdiction

Mr Herbert filed submissions dated 26 September 2016 and 28 September 2016. Mr Herbert's submissions can be summarised as follows: 1. The applicant received a "monetary service/product" from the respondents, being the provision of superannuation benefits under a policy of superannuation; 2. The superannuation benefits under the policy became "immediately payable" as a monthly amount once the 90 waiting period expired under the superannuation policy; 3. The applicant "contends" that all the respondents engaged in "unconscionable conduct" and breach of Section 54 of the Insurance Contracts Act 1984 (C'th). The submissions refer to various authorities, including Balmain New Ferry Co Ltd v Robertson (1906) HCA 83; (1906) 4 CLR 379 and Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33; 4. The Tribunal has previously held that the applicant was a "consumer" and the claim was a "consumer claim" under Part 6A of the FTA. Mr Herbert submitted that the applicant was a "consumer" because she had paid premiums to Mercer. Mr Herbert submitted that, by reason of Section 28 of the FTA, the ACL was a law of NSW. Mr Herbert attached a copy of the Mercer superannuation policy, and a copy of the decision of Senior Member Cohen on the issue of jurisdiction in the earlier proceedings. Mr Herbert did not provide a copy of the Appeal Panel decision of the Tribunal in the earlier proceedings, nor refer to that decision in his submissions.
Subsequent to 28 September 2016, Mr Herbert sent emails to the Tribunal and the other parties dated 4 October 2016 and 6 October 2016. Mr Herbert stated that the respondents' submissions should be "dismissed" under various provisions of the NCAT Act because the submissions of the respondents were not served personally or by post, but rather by email. Mr Herbert submitted that the respondents had failed to comply with the orders of Member Kinsey dated 21 September 2016.

Response of AMP to the Issues Raised by Mr Herbert Regarding Non-Compliance with Tribunal Directions

AMP responded to Mr Herbert by email on 5 October 2016 stating that submissions had been emailed to Mr Herbert due to the short timetable for the filing and serving of submissions, and that email was the mode of communication that Mr Hebert had traditionally engaged during the history of the dispute between the parties. AMP denied that sending the submissions by email contravened the directions of Member Kinsey.

SHOULD THE SUBMISSIONS OF THE RESPONDENTS BE CONSIDERED BY THE TRIBUNAL AND SHOULD THE ISSUES OF REPRESENTATION AND JURISDICTION BE HEARD ON THE PAPERS

An issue for determination is whether the issues of representation and jurisdiction (and the correct identity of the respondents) should be heard exclusively on the basis of the written material provided by the parties, or whether the matter should be listed for oral argument in addition to the written material.
Section 38 of the NCAT Act states: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. ... (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Under Section 36(1) of the NCAT Act, the "guiding principle" for interpretation of the NCAT Act and the procedure of the Tribunal is the "just, quick, cheap and efficient resolution of the real issues in the proceedings". Under Section 36 (2) of the NCAT Act, the Tribunal "must" give effect to the guiding principle when it exercise any power, or interprets any provision, of the NCAT Act or the procedural rules of the Tribunal. Under Section 38(4) of the NCAT Act, the practice and procedure of the Tribunal "should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings".
The Tribunal has a duty to comply with principles of procedural fairness and natural justice, in the context of its statutory powers under Sections 36 and 38 of the NCAT Act. A fundamental principle is that each party is given a reasonable opportunity to be heard or have their submissions considered.
When the matter was set down for determination on the issues of jurisdiction and whether correct parties had been joined to the proceedings, it was clear that a fundamental issue in the proceedings is whether or not the Tribunal has jurisdiction. Member Kinsey determined that the issue of whether or not the Tribunal had jurisdiction in the matter be determined on an interlocutory basis.
By adopting such an approach, the Member clearly took into account the history of litigation between the parties in the Tribunal, including the length of the previous proceedings and costs orders made; the small quantum of the dispute (the jurisdictional limit under Part 6A of the Fair Trading Act 1987 being $40,000.00 and the amount claimed in the application being under $13,000.00); and that the respondents had clearly raised their opposition to the issue of jurisdiction at the outset of these proceedings.
In this context, the Member determined that the issue of jurisdiction be determined based on the written material provided by the parties. The decision of the Member to set the matter down for hearing on an interlocutory basis (i.e. prior to a final hearing) to determine the issue of jurisdiction is within the power prescribed under Section 38 of the NCAT Act, and in accordance with the guiding principle of the Tribunal under Section 36 of the NCAT Act.
The directions of Member Kinsey refer to submissions being provided by the parties "either in person or by post". However, there is nothing to indicate the applicant and Mr Herbert have been prejudiced by the submission being served by email. Further, the application filed on 2 September 2016 lists, in the section of the application dealing with details of the applicant, both a postal address and an email address of Mr Herbert. The application ticks the box: "Do you want NCAT notices and correspondence emailed to you? By ticking this box you agree to receive the notice of hearing and other future correspondence by email. Please ensure the email address provided above is accurate and the email account is checked regularly".
By ticking the box and providing the email address of Mr Herbert, it is clear that the applicant (and Mr Herbert) was consenting to notices from the Tribunal being sent electronically, in accordance with Regulation 13(2) (g) of the Civil and Administrative Tribunal Rules 2014. Mr Herbert has provided no submissions or explanation as to why he was prepared to accept service of notices from NCAT electronically, but does not accept submissions of the Respondents being served electronically.
Mr Herbert relies upon Sections 72, 62 and 55 of the NCAT Act as to why the Tribunal should not consider the submissions of the Respondent. However, the reliance by Mr Herbert upon those provisions of the NCAT Act are misconceived. Sections 72(1) and 72(2) of the NCAT Act apply to contravention of "designated orders" of the Tribunal (as defined in Section 72(2) of the NCAT Act), and the failure to comply with a procedural direction regarding the manner of serving written submissions is not contravention of "designated orders". Section 72(3) of the NCAT Act is a civil penalty provision if a person contravenes any order of the Tribunal (other than a "designated order") without reasonable excuse.
However, by reason of Sections 75 and 77 of the NCAT Act, proceedings in the Tribunal seeking a monetary penalty be imposed for non-compliance of an order can only be brought by an "authorised official", being the Minister or a person or body with the written consent or authorisation of the Minister, and the penalty imposed for non-compliance is a monetary penalty. Section 72(3) of the NCAT Act does not compel the Tribunal to disregard written submissions of a party served by email; the provision deals with a completely separate issue.
Section 62 of the NCAT Act deals with the Tribunal notifying parties of any decision in proceedings (Section 62(1) of the NCAT Act) and the provision of written reasons for any decision upon request by a party (Sections 62(2) and (3) of the NCAT Act). Section 62 of the NCAT Act has no application to the issue of whether or not the Tribunal should consider submissions of a party to proceedings that have been served by email.
Section 55(1) of the NCAT Act deals with the dismissal of proceedings by the Tribunal. Section 55 of the NCAT Act involves the general power of the Tribunal to dismiss proceedings, not the issue of whether or not the Tribunal should consider submissions of a party to proceedings that have been served by email.
I am satisfied that the Respondents should be able to rely upon the written submissions that have been served on Mr Herbert by email. The failure to serve the submissions in person or by post are a technical non-compliance with the procedural directions of Member Kinsey, but there is no evidence that Mr Herbert or the applicant has suffered any prejudice (i.e. disadvantage) because of the manner of service.
To refuse to take the submissions into account by reason only that they were served by email would deprive the respondents in the current interlocutory application a reasonable opportunity to be heard on the issues of jurisdiction and the correct identity of the respondents, which defeats the purpose of the matter being set down for determination of these issues on an interlocutory basis. If the Tribunal refused to consider the submissions of the Respondents, the Respondents are likely to either (i) make a further application that the proceedings be dismissed on the same grounds and on the basis of the same submissions; or (ii) the issue of jurisdiction will be determined at the final hearing in any event, after the parties have been put to further time and expense of preparing for a final hearing. Such an outcome would be inconsistent with the guiding principle of the Tribunal under Section 36 of the NCAT Act. I am satisfied that the submissions of the Respondent should be considered in this application, notwithstanding that they were served by email.
I am satisfied that the issue of jurisdiction should be determined on the papers, without further oral argument. As the issue of jurisdiction is to be determined prior to the final hearing, the Tribunal will only dismiss the proceeds for want of jurisdiction if it is absolutely clear that it is not reasonably arguable that the Tribunal has jurisdiction. Under these circumstances, I am satisfied that it is procedurally fair and in accordance with the provisions of Sections 36 and 38 of the NCAT Act to determine on the papers whether it is arguable the Tribunal has jurisdiction in this matter, without listing the matter for oral argument on this issue.

REPRESENTATION OF THE APPLICANT BY MR HERBERT IN THIS APPLICATION

As this application is to be determined on the papers, the issued raised by the respondents regarding the conduct of Mr Herbert in previous proceedings does not affect the Tribunal's determination of the issues in this application. If leave is not granted, the submissions drafted by Mr Herbert will not be considered, which would result in the Tribunal not dealing with the real issues in dispute between the parties.
The Tribunal is satisfied that it is appropriate to grant leave for Mr Herbert to represent the applicant in this application, and it is further appropriate for the respondents to be granted leave to be legally represented. All parties are granted leave to be represented under Section 45 of the NCAT Act in this application. Such grant of leave only applies to determination of the issue of jurisdiction (including the 'correct parties to the proceedings') and whether the proceedings should be summarily dismissed.

Principles Applicable to Summary Dismissal

The issue which I must consider is whether, in effect, the proceedings should be summarily dismissed because the Tribunal has no jurisdiction in the matter, and/or the proceedings are frivolous, vexatious, misconceived or an abuse of process. The relevant principles for summary dismissal have been considered by the Appeal Panel of the Tribunal in Complete Irrigation NSW Pty Ltd v McMillan [2015] NSWCATAP 34 (at paras [37]-[38]) and Pickering v Yi [2015] NSWCATAP 161 (at paras [69]-[70]). In Pickering v Yi the Appeal Panel stated (at paras [67]-[70]): Ultimately, the issue is whether the legal principles are clear or whether there is a triable dispute about the matter. The formulation of the test to be applied in summary dismissal applications was considered by the Court of in Shaw v State of New South Wales [2012] NSWCA 102. The Court of Appeal summarised the relevant question at [32] as follows: "The question is therefore whether the claims in question is so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the clearest of cases in which the court may accordingly intervene to prevent the claims being litigated. The issue was considered more recently by the Court of Appeal in Ke Qin Ren v Hong Jiang; Yi Cheng Jiang v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2014] NSWCA 388 at [49] - [51] as follows: The test to be applied before entering summary judgment has been variously stated, and little is to be gained by reiterating those formulations; cf General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. There is no controversy that the power must be exercised with "great care" and "exceptional caution": Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24] and [55] (noting that this was said of the lesser standard made applicable by s 31A of the Federal Court of Australia Act 1976 (Cth)). In Spencer, Hayne, Crennan, Kiefel and Bell JJ referred to the (unamended) test as "requiring formation of a certain and concluded determination that a proceeding would necessarily fail": at [53]. Repeatedly, it has been said that the court must be so certain of the outcome that to permit the proceeding to go forward would amount to an abuse of process: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90; Spencer at [54]; O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [3] and [67]. The primary judge did not expressly invoke any of those formulations. His Honour stated that it was "necessary for the Court to reach a high level of satisfaction that the order should be made, and the power to order summary judgment should be sparingly employed": at [29]. That is undoubtedly necessary, but falls short of what is sufficient, before a litigant is denied of the ordinary right to a contested hearing." The matters referred to above mean that had the correct test been applied, the primary judge would not have been "so certain" of the plaintiffs' success that allowing the proceeding to go forward would have been an abuse of process, or that the defendants would "necessarily fail".
To dismiss the proceedings for want of jurisdiction, or on the grounds that they are frivolous, vexatious, misconceived, or an abuse of process, I must be satisfied that there is a "high degree of certainty" and it is "absolutely clear" proceedings would "necessarily fail" at a final hearing, and if I am not satisfied to that standard, or that there is further or other evidence that may result in a finding that the Tribunal has jurisdiction, the proceedings should not be dismissed at an interlocutory stage, but should be allowed to proceed to a final hearing.

Statutory Definitions of 'Consumer' and 'Consumer Claim'

The Tribunal's jurisdiction for consumer claims derives from Part 6A of the Fair Trading Act 1987 ('the FTA'). There is no dispute that the parties were relevantly in NSW, nor that proceedings have been brought within 3 years of any cause of action. Section 79D defines a consumer as a person (this matter involving a natural person) "to whom or which a supplier has agreed to supply goods or services (whether or not under contract)", or a contract collateral to a contract to supply goods or services. Section 7D of the FTA defines goods as "any tangible thing that may be the subject of trade or commerce, but does not include money or an interest in land". "Supplier" is defined in Section 79D of the FTA as "a person who, in the course of carrying on a business…supplies goods or services".
Section 79E of the FTA defines "consumer claim" as follows: 79E Meaning of "consumer claim" (cf CC Act 1998, s 3A) (1) For the purposes of this Part, a consumer claim means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer."
Section 79F of the FTA defines "services" as follows: 79F Meaning of "services" (cf CC Act 1998, s 3 (1), definition of "services") (1) For the purposes of this Part, a reference to services is a reference to any of the following: (a) the performance of work (including work of a professional nature), whether with or without the supply of goods, (b) the provision of gas or electricity or the provision of any other form of energy, (c) the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction, (d) the letting of premises for vacation or recreational purposes, (e) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction, (f) the provision of insurance cover, (g) the rights or benefits provided, granted or conferred under a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking, (h) the provision of credit, (i) any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce. (2) However, a reference in this Part to services does not include a reference to any of the following: (a) the supply of goods or the performance of work under a contract of employment, (b) rights or benefits provided, granted or conferred under a service contract (within the meaning of the Retirement Villages Act 1999), (c) the provision of assurance cover in respect of a person's life.
Section 79G of the FTA defines "supply" as follows: 79G Meaning of "supply" (cf CC Act 1998, s 3 (1) (definition of "supply") and s 3 (2)) (1) For the purposes of this Part, a reference to the supply of goods includes a reference to any of the following: (a) supplying goods by way of sale, exchange, lease, hire or hire-purchase, (b) resupplying goods, (c) agreeing to supply goods, (d) supplying goods together with services. (2) For the purposes of this Part, a reference to the supply of services includes a reference to any of the following: (a) providing, granting or rendering services for valuable consideration, (b) agreeing to supply services, (c) supplying services together with goods.
Under Section 79H of the FTA, a person claiming to be a consumer is presumed to be a consumer until the contrary is proved, and the party asserting that a person is not a consumer bears the onus of proof on this issue.

Is the Applicant Estopped from Commencing the Current Proceedings?

Prior to considering whether it is arguable that the Tribunal has jurisdiction under Part 6A of the FTA, I must consider whether the applicant is estopped from bringing these proceedings in the Tribunal due to the decision of the Appeal Panel of the Tribunal in Herbert v American Express Australia Ltd and Ors [2016] NSWCATAP 47. There is a significant disjunction between the material contained in the application filed on 2 September 2016 (which, as discussed below, refers to benefits payable under the insurance policy with AMP) and the submissions of Mr Herbert on the issue of jurisdiction, which refer to payment of superannuation benefits by Mercer under the superannuation policy the applicant held with Mercer.

Relevant Legal Principles-Issue Estoppel, Cause of Action Estoppel, Res Judicata

In Ravenscroft v Skinner [2016] NSWCATAP 107, the Appeal Panel of the Tribunal summarized the relevant principles applicable to the doctrines of issue estoppel, cause of action estoppel, and res judicata as follows at paras [9]- [14], referring to the High Court decision in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28): "Issue estoppel in relation to judicial determinations is a common law doctrine informed by considerations of finality and fairness. It operates "as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law": Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [21] citing Jackson v Goldsmith (1950) 81 CLR 446 at 446. The High Court has identified three forms of estoppel: cause of action estoppel, issue estoppel and Anshun estoppel. Cause of action estoppel prevents a party from asserting in a subsequent proceeding a claim to a right or obligation which was asserted in earlier proceedings between the same parties and in relation to which a final judgment or decision was made. That doctrine applies to the facts of this case because the second proceedings were based on the same claim or cause of action that Mr Ravenscroft made in the first proceedings. That claim was that when supplying the boat, Skinner Marine engaged in deceptive or misleading conduct in breach of s 18 of the ACL (NSW) or that Skinner Marine had breached the consumer guarantee in s 54 of the ACL (NSW). The Tribunal determined those claims in the first proceedings and awarded Mr Ravenscroft damages. The Tribunal relied on the second form of estoppel, issue estoppel, to dismiss the second proceedings. That doctrine operates "to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination" made in the first proceedings: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates regardless of whether the cause of action is the same in each proceeding. In our view, the second proceedings did not just raise certain issues of fact and law that had been resolved in the first proceedings; the cause of action was the same. Alternatively, the Tribunal relied on the third form of estoppel, Anshun estoppel, to dismiss the second proceedings. The High Court has described that form of estoppel as an extension of the first and second forms: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. It operates to preclude the assertion of a claim or the raising of an issue of fact or law "if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding:" Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 at [22]. The second proceedings were not just connected with the subject matter of the first proceeding; the cause of action was the same. Regardless of which form of estoppel applies, the Tribunal did not make an error of law. The first decision creates an estoppel on which Skinner Marine was entitled to rely in subsequent proceedings. In our view the form of estoppel created was cause of action estoppel but the doctrines of issue estoppel and Anshun estoppel were also applicable. It is an abuse of process to attempt to re-litigate issues which have already been determined in previous proceedings: Stokes (by a tutor) v McCourt [2013] NSWSC 1014. The Tribunal had power to dismiss the proceedings as misconceived: NCAT Act, s 55(1) (b)."
In Pearson v Clark [2016] NSWCATAP 134, the Appeal Panel of the Tribunal stated that a key principle underlying the doctrines of issue estoppel and res judicata was the public policy of finality of litigation, and parties to ligation are precluded from re-litigating issues which would either (i) result in a decision or judgment that conflicts with an earlier decision or judgment or (ii) raises matters that should reasonably have been raised in the earlier proceedings.
In Pearson v Clark, the Appeal Panel held that a landlord was not estopped from bringing proceedings claiming unpaid rent from a former tenant, despite an earlier decision of the Tribunal ordering the whole of the bond be paid to the tenant, because the cause of action by the landlord was a separate and distinct cause of action and it was not unreasonable that the landlord did not raise the issue of unpaid rent in the bond proceedings. The Appeal Panel held that a decision that the former tenant pay rent arrears would not be inconsistent with the earlier decision that the whole bond be paid to the tenant, because of the nature of the different causes of action under Sections 175 and 187 of the Residential Tenancies Act 2010.

Application of Principles of Issue Estoppel, Cause of Action Estoppel and Res Judicata to the Circumstances of This Matter

The proceedings that were dealt with by the Appeal Panel involved the same parties. The issues raised in those proceedings were that the applicant was entitled to immediate payment of a total and temporary disablement benefit (referred to in the decision as a "TTD claim") under an insurance policy that was part of the superannuation fund to which the applicant and her employer subscribed to, as part of her employment contract. The applicant also referred to the TTD claim as "income protection" insurance in the earlier proceedings. The causes of action relied upon by the applicant involved alleged breaches of the ACL, in particular misleading and deceptive conduct and unconscionable conduct, breach of contract, and breach of Section 54 of the Insurance Contracts Act 1984. The applicant also sought damages for "distress".
As discussed previously, the Appeal Panel dismissed the applicant's appeal, determining that there was no error of law in Senior Member Cohen's decision to dismiss the proceedings. The Appeal Panel held that, notwithstanding that the Tribunal had jurisdiction to hear the matter under Part 6A of the FTA, there was no error in Senior Member Cohen's decision that the applicant had not proved any breach of any of the causes of action relied upon.
In the current proceedings filed on 2 September 2016, the applicant does not set out with any detail what her alleged causes of action are, or give particulars of the alleged causes of action. The application refers to "redress under the Australian Consumer Law" and that the applicant is "entitled to be compensated for breach of contract and disappointment and distress in monetary figures". The document entitled "submission" of the applicant attached to the application, at paragraph 7, refers to the respondents "may or may not have willingly and knowingly submitted material documentation which is false and misleading in a material respect/particular".
Paragraph 5 of the document entitled "submission" of the applicant attached to the application states as follows: "The applicant contends that the Defendants (sic) one (1) to three (3) inclusive have submitted material documentation with words to the effect "immediate" next to the monetary figures that she believes she is entitled to, attached hereto and marked as Annexure A and B".
The document attached at "Annexure A" is a letter from Mercer to AMP stating that the applicant (as a member of the superannuation fund) "would now like to initiate a Total and Permanent Disablement Claim", and contains details of the applicant including her salary; the date she joined the superannuation fund, and her salary. The document states "Please also find attached deduction history" and "Please ensure the TPD benefit is paid by cheque and is made payable to the Mercer Super Trust-MT 278". There are further attachments to this letter, including a "disablement claim advice form" which refers to both "TPD benefit" and "TTD benefit"; and a "member exit advice quote" which refers to benefits payable in respect of "total and permanent disablement". The document attached at "Annexure B" lists dates and amounts in respect of what is identified as "SCI Premium".
From the documents attached to the application filed on 2 September 2016, the applicant is raising identical issues and causes of action that were raised in the earlier proceedings. The only distinction that can be discerned is that the applicant is now seeking damages in respect of the failure of AMP to pay a total and permanent disablement benefit (TPD) under the policy of insurance held as part of the applicant's superannuation scheme, rather than payment of the total and temporary disablement benefit (TTD).
I am satisfied that there is no relevant distinction between any claim arising in respect of payment of the TPD benefit and the earlier proceedings involving the TTD benefit, because both types of benefits arise under the policy of insurance. On the basis of the material provided in the application filed on 2 September 2016, the applicant is raising the same causes of actions against the same parties that were determined in the earlier proceedings, with such determination being that the applicant had failed to prove the respondents had breached any relevant provision of the ACL; or breached any contract; or breached Section 54 of the Insurance Contracts Act 1984.
The current proceedings, as best can be discerned from the material attached to the application filed with the Tribunal on 2 September 2016, are an attempt to re-litigate and re-agitate causes of action in which the applicant was previously unsuccessful in the Tribunal against the respondents. Even if there is any relevant distinction between payment of the TTD benefit and payment of the TPD benefit, for the Tribunal to consider whether the respondents had engaged in any misleading or deceptive conduct, or unconscionable conduct, or conduct that breached any contract, would involve consideration of "an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination" made in the first proceedings.
Accordingly, I am satisfied that the applicant is estopped from bringing the proceedings filed on 2 September 2016 by reason of both cause of action estoppel, and issue estoppel. Further, even if it was arguable that the claim regarding payment of TPD benefits was a separate cause of action to the previous proceedings involving a claim for payment of TTD benefits (which I do not accept), the claim is so closely aligned to the previous proceedings involving TTD benefits that it is unreasonable the claim was not raised in those proceedings, and the applicant is further estopped from bringing the proceedings under the doctrine of res judicata.
I am satisfied with a "high degree of certainty" that it is "absolutely clear" the application filed on 2 September 2016 contravenes the principles of issue estoppel, cause of action estoppel and res judicata, and should be summarily be dismissed, applying the principles set out in Ravenscroft v Skinner. The decision of the Appeal Panel in Pearson v Clark is distinguishable from the circumstances of this matter, because in Pearson v Clark the causes of action that arose involved provisions of the Residential Tenancies Act 2010 that created separate causes of action that could be litigated in subsequent proceedings without creating any inconsistency with the earlier decision of the Tribunal.

IF A FRESH APPLICATION WAS FILED, OR THE CURRENT APPLICATION WAS AMENDED, TO CLAIM PAYMENT OF SUPERANNUATION BENEFITS FROM MERCER, WOULD THE TRIBUNAL HAVE JURISDICTION?

As it has been determined that the applicant is estopped from bringing the proceedings filed on 2 September 2016, it is unnecessary to determine whether it is arguable the proceedings involve a "consumer claim" under Part 6A of the FTA.
However, as Mercer has made submissions on the assumption that the applicant is, or may be, claiming early payment of superannuation benefits, and Mr Herbert's submissions appear to indicate that the applicant is making such a claim in these proceedings (which is not reflected in the application filed on 2 September 2016) it is appropriate to consider the issue of jurisdiction from this perspective.
Under Section 31 of the Superannuation Industry (Supervision) Act 1993 (C'th) ('the SIS Act') regulations to the SIS Act may prescribe standards applicable to the operation of regulated superannuation funds and the conduct of superannuation trustees. Under Section 34 (1) of the SIS Act, a superannuation trustee must ensure compliance with the prescribed standards and under Section 34(2) of the SIS Act, intentional or reckless non-compliance with the prescribed standards is a criminal offence.
The regulations referred to in Section 31 of the SIS Act are contained in the Superannuation Industry (Supervision) Regulations 1994 ('the SIS Regulations'). Part 6 Division 6.2 of the SIS Regulations contains regulations pertaining to "payment standards". Regulation 6.17 of the SIS Regulations sets out the circumstances in which benefits may be paid by the superannuation trustee. Importantly, Regulation 6.17 of the SIS Regulations states that the superannuation trustee "must" only pay benefits in the manner prescribed under the SIS Regulations.
As Mercer points out in its submission, if a beneficiary under a superannuation fund disputes the decision of the trustee regarding payment of benefits, the beneficiary may complain to the Superannuation Complaints Tribunal under the Superannuation (Resolution of Complaints) Act 1993 (C'th) ('the SRC Act'). Under Section 20 of the SRC Act the Superannuation Complaints Tribunal cannot deal with a complaint the subject of court proceedings "until the proceedings is finally disposed of". Under Section 37 of the SRC Act, the Superannuation Complaints Tribunal has all the powers, discretions and obligations of the trustee, and may affirm, vary, remit or set aside (and substitute its own decision) the decision of the trustee. Under Section 46 of the SRC Act, a party may appeal a decision of the Superannuation Complaints Tribunal to the Federal Court on a question of law.
It is clear from the submissions of Mercer that, if proceedings remain in the Tribunal, they will seek to raise a defence that Mercer has acted in accordance with Part 6 Division 6.2 of the SIS Regulations in respect of the manner in which they have decided to pay, or not pay, superannuation benefits to the applicant.
Under Section 29(1) (a) of the NCAT Act, the Tribunal only has jurisdiction if "legalisation…enables the Tribunal to make decisions or exercise other functions…of a kind specified by the legislation in respect of that matter". Section 28 of the FTA makes the ACL a law of NSW, and because of Section 28 of the FTA, the Tribunal has jurisdiction to apply the ACL if the claim is a "consumer claim" within Part 6A of the FTA (Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186). The Tribunal also, if it has jurisdiction due to Part 6A of the FTA, has power to consider and apply common law principles (Sacks v Hammoud [2016] NSWCATAP 225 at [29]).
However, the Tribunal does not have jurisdiction to apply statutory provisions of the SIS Act or SIS Regulations. Such provisions involve the application of Commonwealth legislation, not State legislation nor common law principles. The fact that Mercer will raise as a defence in any proceedings in the Tribunal that it has acted in accordance with its obligations under the SIS Regulations means that the Tribunal would inevitably have to consider and apply federal legalisation over which it has no jurisdiction. Due to Section 77(iii) of the Commonwealth Constitution, NCAT is not a "Court" which has the jurisdictional power to consider and apply the provisions of the SIS Regulations (Qantas Airways Limited v Lustig [2015] FCA 253 at [53] - [62]). It is sufficient for a matter to become a "federal matter" over which only a Court has jurisdiction if a defence is raised that genuinely invokes the operation of Commonwealth legalisation and the defence is clearly not untenable, even if the causes of action relied upon in the proceedings do not involve the operation of Commonwealth legislation (Qantas Airways Limited v Lustig [2015] FCA 253 at [88] - [95] and [101]).
I am satisfied with a "high degree of certainty" that it is "absolutely clear" that, if the applicant is alleging causes of action based on the conduct of Mercer whether or not to pay superannuation benefits (even if the causes of action are framed as breaches of the ACL and/or common law rights) that Mercer will raise as a defence that its conduct was in accordance with its obligations under the SIS Regulations, and that by reason of the principles set out in Qantas Airways Limited v Lustig [2015] FCA 253, the Tribunal has no jurisdiction in the matter. Unlike Bilpin v Mainfreight International Pty Ltd [2016] NSWCATCD 70, any claim against Mercer can only be determined by engagement of Commonwealth legislation over which the Tribunal has no jurisdiction.
Even if it were arguable that the services provided by Mercer to the applicant fall within the definition of "services" in Section 79F(1)(i) of the FTA, due to the principles enunciated in Qantas Airways Limited v Lustig, the Tribunal has no jurisdiction. Further, even if my conclusion that the Tribunal has no jurisdiction in circumstances where Mercer is relying upon provisions of the SIS Regulations is incorrect, it would be appropriate to transfer the matter to a Court which clearly does have jurisdiction, under Schedule 4 Part 5 Clause 6(1) of the NCAT Act. However, having determined that the Tribunal has no jurisdiction, there is no power to transfer the proceedings (Qantas Airways Limited v Lustig [2015] FCA 253 [105]-[115]).
Finally, if the claim involves the issue of the way Mercer paid, or did not pay, superannuation benefits, there is nothing to indicate how the applicant has any arguable cause of action against Amex or AMP, other than in respect of causes of action which were determined in the earlier proceedings. Accordingly, there is nothing to support the proposition that the applicant has any arguable causes of action against Amex or AMP.

CONCLUSION

I am satisfied that that the current proceedings of the applicant be dismissed under Section 55(1)(b) of the NCAT Act as an abuse of process and misconceived on the following grounds: 1. If the proceedings are based upon payment, or non-payment, of benefits under the TPD policy, the applicant is estopped from bringing the proceedings against the respondents on the principles of issue estoppel, cause of action estoppel, and res judicata; 2. If the proceedings are based upon payment, or non-payment, of superannuation benefits by Mercer, the Tribunal has no jurisdiction in the matter as it has no power to consider whether the conduct of Mercer was in accordance with its obligations under the SIS Regulations, by reason of the principles set out by the Federal Court in Qantas Airways Limited v Lustig.

ADDENDUM

After this decision was drafted, but prior to it being published, Mr Herbert sent emails to the other parties and the Tribunal seeking to "withdraw" and "discontinue" the proceedings in the Tribunal. The emails refer to the applicant having proceedings in the Supreme Court against the respondents, and the Solicitor for Mercer raising an issue about the correct name of Mercer in the Supreme Court proceedings. The emails appear to indicate the basis that the proceedings are "discontinued" in the Tribunal is due to Mercer raising an issue about its name in the other proceedings, and that the Tribunal has not made a decision in these proceedings with reasonable alacrity.
Under Section 55(1) (a) of the NCAT Act, the Tribunal "may" dismiss proceedings if an applicant "withdraws" the application. The correspondence from Mr Herbert does not contain any written document from the applicant withdrawing the proceedings. In any event, in the context of the history of litigation in the Tribunal and my findings on the issue of jurisdiction, I am satisfied that the proceedings should be dismissed under Section 55(1)(b) of the NCAT Act rather than Section 55(1)(a) of the NCAT Act. G.J. Sarginson Senior Member Civil and Administrative Tribunal of New South Wales 21 December 2016 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2017

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