Federal Court of Australia

McMonagle v BT Funds Management Limited [2021] FCA 1453

ORDERS

THE COURT NOTES THAT:

1.    These orders were promoted consensually by the applicant and the first and second respondents, with the third respondent filing a submitting notice.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The determination of the third respondent given on 12 May 2021 be set aside.

3.    Pursuant to s 1057(4) of the Corporations Act 2001 (Cth), the matter be remitted to the third respondent to be determined again according to law.

4.    Each party bear his or its own costs of the proceedings.

5.    The listing on 18 October 2021 for the hearing of this matter be vacated accordingly.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    Mr Nathan McMonagle is, by profession, a solicitor. He had the misfortune to encounter a disability, as a result of which he had occasion to make a claim in respect of disability insurance. His claim was not successful. He sought the review of the adverse decision by the Australian Financial Complaints Authority (Authority). The Authority did not uphold his complaint. Mr McMonagle has appealed to this Court against the Authority’s decision.

2    The respondents to the appeal are BT Funds Management Limited (the trustee), first respondent, the trustee of the BT Lifetime Super Fund; and AIA Australia Limited (the insurer), second respondent; together with the Authority, third respondent. The Authority, as is appropriate, has filed a submitting notice.

3    The appeal is listed for hearing on Monday, 18 October 2021. Late this week, as a result of discussions between the active parties, those parties came consensually to promote today orders which would see the allowance of the appeal and the setting aside of the Authority’s decision given on 12 May 2021, with an order that pursuant to s 1057(4) of the Corporations Act 2001 (Cth), the matter be remitted to the Authority to be determined again according to law.

4    In my view, the Court should not merely act upon a consent of the parties in making an order of the kind promoted. There is, in my view, an analogy to be drawn in this regard with the practice adopted in relation to appeals from the Administrative Appeals Tribunal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). In other words, even though the parties may consensually promote the allowance of an appeal, the Court ought to have the benefit, by submission, of understanding the basis upon which an appeal is to be allowed. That is important because the Authority in this case, as is the case with the Tribunal in relation to s 44 appeals, needs to understand the basis upon which it is again being asked to exercise its jurisdiction.

5    In this particular case, it is accepted by the parties that it is at least arguable that the Authority adopted an overly prescriptive approach to the information by which Mr McMonagle might establish his pre-disability income or “PDI”, as it is termed in the fourth of the questions of law stated in the notice of appeal. It may well be that, related to the fourth of the questions is also a question raised in questions 2 and 3, as to whether it was necessary that business activity statements and company tax returns had to be provided as substantiation. Given the approach adopted by the parties, it is neither necessary nor desirable for the Court to reach any concluded view as to the merits of these propositions; only to accept, as I do, that they are at least arguable.

6    That being so, I am satisfied that there is a basis upon which the Court should exercise, as is promoted consensually, the jurisdiction to allow the appeal and set aside the Authority’s decision.

7    I note that the parties have agreed that each active party should bear his or its own costs. Obviously enough, no costs order should be made either for or against the Authority, given the stance which it has taken.

Associate:    

Dated:    19 November 2021