Federal Court of Australia

MetLife Insurance Limited v Australian Financial Complaints Authority [2022] FCA 23

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to AFCA to amend its cross-claim in terms of its minute of further particulars of cross-claim dated 15 June 2021.

2.    As to the question whether in the events which have occurred and on the proper construction of the relevant statutory provisions and the AFCA Rules, the first respondent had jurisdiction or authority to make a determination in respect of the complaints 600361 and 507677 each dated 12 April 2019, the first respondent had authority to make the determinations.

3.    The application be dismissed.

4.    The cross-claim be allowed.

5.    On or before 10 February 2022, each party do provide a minute of any further orders sought by the party in the proceedings.

6.    There be a case management hearing on a date to be fixed to consider the directions to be made as to the further conduct of the proceedings.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Brian Edgecombe was a police officer in New South Wales. He suffered a foot injury. From 2008 he was absent from work for an extended period and in 2012 his employment as a senior constable came to an end. He claimed to be totally and permanently disabled within the terms of two policies of insurance arranged by the trustee of the superannuation scheme of which he was a member. The insurance policies were agreed between the trustee and Metlife Insurance Limited (Metlife).

2    In 2014, Mr Edgecombe made claims to the benefits afforded by the policies. The claims were made using a statement of claim form that was addressed to the trustee but which was also endorsed with the Metlife name. Metlife advised the trustee that it did not accept the claim that Mr Edgecombe was totally and permanently disabled. In March 2017, the trustee wrote to Mr Edgecombe stating that 'following a careful review of all the evidence submitted in respect of your claim, and considering the applicable definitions contained within the relevant Policy … the decision by Metlife to continue to decline your claim is fair and reasonable'.

3    In December 2017, Mr Edgecombe submitted a complaint to the Financial Industry Ombudsman Service (Ombudsman Service), stating that his complaint was with Metlife. The Ombudsman Service was then operated by Financial Ombudsman Service Limited (FOSL). At the time, there was a monetary limit upon the value of claims against insurers that could be considered by the Ombudsman Service. The claim under one of the policies exceeded the limit. In those circumstances, the Ombudsman Service proceeded to consider the claim that was under the limit being a claim in respect of a policy that was referred to by the parties as the FSS Policy.

4    In the meantime, a review had been conducted into the regulatory requirements concerning the dispute resolution and complaints framework for providers of financial services (including trustees of superannuation funds and insurers). The review was chaired by Prof Ian Ramsay. The final report of the review was presented to the Minister for Revenue and Financial Services in April 2017 (Ramsay Report). At the time of the review there were three main bodies handling complaints in respect of financial services, namely the Ombudsman Service, the Superannuation Complaints Tribunal (Tribunal) and the Credit and Investments Ombudsman.

5    The two ombudsman schemes were governed by terms of reference approved by the Australian Securities and Investments Commission (ASIC). They were funded by industry and provided access to an independent review process to which members of the schemes submitted. Claimants could choose to participate in one of the schemes by making a complaint. The relevant ombudsman then had power to make a determination as to a fair and reasonable outcome in the circumstances which was not confined to the adjudication of the legal rights of the parties. Once the decision by the ombudsman was known, the complainant could elect whether to accept that decision. As part of the schemes, members agreed to be bound by the decision of the ombudsman if such an election was made by the complainant.

6    The Superannuation Complaints Tribunal was different to the ombudsman schemes in a number of key respects. It was established by legislation being the Superannuation (Resolution of Complaints) Act 1993 (Cth) (Superannuation Complaints Act) rather than by agreement. The Tribunal's jurisdiction arose in respect of regulated superannuation funds and other superannuation investments. A fund became regulated by an election made by the trustee of the fund. If the election was made and the trust conformed to certain regulatory requirements then the superannuation fund received favourable taxation treatment. The Superannuation Complaints Act did not apply unless that election was made by the trustee of the fund. Under the legislation, if a complaint was made, the Tribunal had power to join other parties to the complaint, including an insurer. Although the determination to be made could involve an assessment of reasonableness of conduct and the exercise of powers conferred upon trustees and insurers providing certain types of insurance to trustees, the Tribunal's determinations were required to give effect to the legal rights of the parties. The Tribunal could refer legal questions to this Court for determination and there were rights to seek review in this Court of determinations made by the Tribunal.

7    The central recommendation of the Ramsay Report was the establishment of a single external dispute resolution body 'for all financial disputes (including superannuation disputes)':  at page 10. It also expressed the view that an industry ombudsman scheme was 'the appropriate model for all areas of the financial system, including for the effective resolution of superannuation disputes'. Legislation to give effect to these recommendations was enacted in the form of the Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth) (AFCA Establishment Act). It enacted provisions by which the Minister may authorise an external dispute resolution scheme described as the AFCA Scheme. The operator of the AFCA Scheme was to be the Australian Financial Complaints Authority (AFCA). AFCA was to be established as a private body with financial services licensees as its members. As described in the explanatory memorandum for the Bill to enact the AFCA Establishment Act, the legislation made provision for the establishment of a 'one stop shop' for complaints arising in the financial system: page 9. However, the legislation maintained the distinction between superannuation complaints and other complaints. In particular, it introduced s 1053 into the Corporations Act 2001 (Cth) which dealt with the circumstances in which a person may make a complaint relating to superannuation under the AFCA Scheme. The terms of s 1053 (and other provisions concerned with superannuation complaints) assume particular significance in the present case and are addressed below.

8    The new legislation also conferred statutory power upon AFCA to join as a party to a superannuation complaint certain types of persons including insurers. It also maintained the distinction whereby the determination of a superannuation complaint could not be made that was contrary to law (including the terms and conditions of a contract of insurance) but otherwise may be determined on the basis of an assessment of what was a fair and reasonable exercise of powers, obligations and discretions conferred upon the superannuation trustee and certain insurers providing insurance to the trustee. In these respects the legislation conferred upon AFCA the same type of statutory authority that had previously been conferred upon the Superannuation Complaints Tribunal.

9    The legislation to establish the AFCA Scheme came into effect in March 2018. However, it took some time to establish the scheme which commenced operating from 1 November 2018. With effect from early March 2018, AFCA took over conduct of the claims that had been made by Mr Edgecombe to the Ombudsman Service. The circumstances in which that occurred and the legal effect of the actions undertaken by AFCA are matters that are in contention between the parties and are addressed below.

10    One aspect of the new AFCA Scheme was that the monetary limit upon the value of claims brought against insurers was increased, although there remained a $500,000 limit upon the maximum compensatory award that could be made in favour of the claimant. Under the Superannuation Complaints Act there had been no such limit. For superannuation complaints under the AFCA Scheme it remained the case that there was no limit.

11    In October 2018, the Ombudsman Service made a recommendation to the effect that the complaint in respect of the FSS Policy should be determined in favour of Metlife on the basis that Mr Edgecombe had not provided satisfactory proof that he was incapacitated to an extent that meant that he was unlikely to ever work again in an occupation for which he was reasonably qualified. The recommendation was not accepted by Mr Edgecombe which meant that under the terms of reference for the Ombudsman Service there would be a final determination after considering any further information provided by Mr Edgecombe. Mr Edgecombe was invited to submit any such further information by 10 November 2018.

12    In November 2018, after the AFCA Scheme commenced, Mr Edgecombe lodged a new complaint with AFCA concerning the second policy (which was referred to by the parties as the PBR Policy). It was made on the basis that the monetary limit that had applied to the Ombudsman did not apply under the AFCA Scheme. Metlife objected to the further claim on the basis of its contention that the rules of the AFCA Scheme (AFCA Rules) required the claim to have been made within two years of Mr Edgecombe permanently ceasing work and the claim was out of time. Under the AFCA Rules, a time limit applied to superannuation complaints of a kind that did not apply to other complaints.

13    AFCA initially accepted the contentions made by Metlife. However, on 12 February 2019, AFCA wrote to Metlife in the following terms:

It remains the case that the complaint does not meet the time limits for a Superannuation complaint. However, page 126 of the AFCA Operational Guidelines states that, where a fund member does not meet the AFCA time limits for a Superannuation complaint, AFCA 'may be able to accept a complaint against the insurer under our general jurisdiction'.

AFCA has made the decision to exercise this discretion to accept Mr Edgecombe's complaint against Metlife in relation to the [PBR Policy], because the complaint is otherwise within our Rules under our general jurisdiction as outlined at B.4.3.1.

14    It can be seen that the decision was informed by a view expressed within AFCA's Operational Guidelines to the effect that a superannuation complaint that was out of time could nevertheless be treated as a non-superannuation complaint against the insurer.

15    In response, Ms Christina Grygiel of Metlife sent an email to AFCA expressing concern about the fairness of the decision and requesting a call from the AFCA case manager. There was then a conversation which was the subject of affidavit evidence from Ms Grygiel. A file note of the conversation made by the AFCA case manager was also received into evidence. The evidence in that regard bears upon an issue as to whether Metlife, in effect, submitted to the authority of AFCA to consider the complaint made in November 2018. It is dealt with below.

16    Thereafter, submissions were received from Metlife as to the matters raised by both complaints.

17    On 12 April 2019, AFCA purported to determine both complaints adversely to Metlife. As to the complaint concerning Mr Edgecombe's claim in respect of the FSS Policy (2017 Complaint), AFCA said it had determined the complaint under the terms of reference that applied to the Ombudsman Service. As to the complaint in respect of the PBR Policy (2018 Complaint), AFCA said it had determined the complaint under the AFCA Rules.

18    Metlife claims that AFCA had no authority to determine the two complaints. AFCA seeks to require Metlife to give effect to its decision. The precise position adopted by Metlife requires some exposition and that is dealt with below. It includes a claim that AFCA, consistently with its position as an independent decision maker, should not be advancing certain aspects of its case. In effect, Metlife says those matters should be raised by Mr Edgecombe if they are to be pressed.

Outcome

19    AFCA had authority to determine both the 2017 Complaint and the 2018 Complaint. For that reason the claim by Metlife should be dismissed and the cross-claim by AFCA should be upheld. There is no need to determine any matter concerning the other defences raised by AFCA to Metlife's claim. The parties should be heard concerning any further orders that should be made to give effect to these reasons, including as to costs, if they are unable to reach agreement concerning the terms of any such further orders. The parties should each provide a minute as to any further orders that they seek and the matter should then be listed for a case management hearing. Ultimately the position that was adopted by Metlife was that its contention that it was inappropriate for AFCA to have taken certain of the steps that it took were matters that were said to be relevant only to costs. They should be addressed in that context when submissions can be made having regard to the outcome and these reasons.

Relevant provisions of the Corporations Act

20    After the AFCA Establishment Act took effect, the Superannuation Complaints Act ceased to apply and the following provisions within the Corporations Act governed the AFCA Scheme.

21    Section 912A(1)(g) required a financial services licensee in respect of financial services covered by the licence that were 'provided to persons as retail clients' to have a dispute resolution system complying with s 912A(2) which said:

To comply with this subsection, a dispute resolution system must consist of:

(a)    an internal dispute resolution procedure that:

(i)    complies with standards, and requirements, made or approved by ASIC in accordance with regulations made for the purposes of this subparagraph; and

(ii)    covers complaints against the licensee made by retail clients in connection with the provision of all financial services covered by the licence; and

(c)    membership of the AFCA scheme.

22    It is to be noted that the legislative requirement was for the holder of a financial services licence to have a compliant internal dispute resolution procedure and also to be a member of the AFCA Scheme. However, the requirement applied only in respect of financial services provided to persons as retail clients.

23    The term 'AFCA scheme' was defined to mean 'the external dispute resolution scheme for which an authorisation under Part 7.10A is in force': s 761A.

24    The term 'retail client' was defined by s 761G and s 761GA. Those provisions are not without complexity. For present purposes it is sufficient to observe that the definitional provisions specified the circumstances in which the provision of financial services that related to a general insurance product would be provided to a person as a retail client. They required the product to be provided to a person as an individual or for use in connection with a small business in order to come within the definition. They also stated that the provision of a superannuation interest within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) was a financial product. Dealing in a financial product is the provision of a financial service: s 766A. The Superannuation Complaints Act had applied to superannuation schemes that were regulated under the Superannuation Industry (Supervision) Act.

25    Section 912B(1) also required a financial services licensee who provided services to persons as retail clients to have arrangements for compensating those persons for certain breaches of the Corporations Act, including the requirement to have an internal dispute resolution system in place and to be a member of the AFCA Scheme.

26    Part 7.10A of the Corporations Act had detailed provisions concerning the authorisation of the external dispute resolution scheme that would be the AFCA Scheme as defined. Amongst the operational requirements required to be in place in order for a scheme to be authorised, were the following (see s 1051(4)):

(b)    complaints against members of the scheme are resolved (including by making determinations relating to such complaints) in a way that is fair, efficient, timely and independent; and

…

(d)    reasonable steps are taken to ensure compliance by members of the scheme with those determinations; and

 (e)    under the scheme, determinations made by the operator of the scheme are:

(i)    binding on members of the scheme; but

(ii)    not binding on complainants under the scheme; and

 (f)    for superannuation complaints, there are no limits on:

(i)    the value of claims that may be made under the scheme; or

(ii)    the value of remedies that may be determined under the scheme.

27    The separate provision for no monetary limit on complaints in the case of 'superannuation complaints' may be noted. As to limits on other claims, ASIC was given power to require any such limit to be increased: s 1052B. Otherwise, such limits were a matter for the AFCA Scheme as authorised.

28    Section 1052 provided that 'AFCA must ensure that the mandatory requirements for the AFCA scheme under section 1051 are complied with'. There were detailed provisions that conferred powers of oversight in respect of the AFCA Scheme upon ASIC: see s 1052BA (as to financing), s 1052C (as to general directions), s 1052D (as to approval of material changes to the AFCA Scheme) and s 1052E (requiring referral of certain matters to ASIC or to APRA or the Commissioner of Taxation).

29    There was then a Division headed 'Additional provisions relating to superannuation complaints'. It began with the following provision (s 1053):

When complaints relating to superannuation can be made under the AFCA scheme

(1)    A person may, subject to section 1056, make a complaint relating to superannuation under the AFCA scheme only if the complaint is a complaint:

(a)    that the trustee of a regulated superannuation fund or of an approved deposit fund has made a decision (whether before or after the commencement of this section) relating to:

(i)    a particular member or a particular former member of a regulated superannuation fund; or

(ii)    a particular beneficiary or a particular former beneficiary of an approved deposit fund;

that is or was unfair or unreasonable; or

(b)    that a decision, by a trustee maintaining a life policy that covers a member of a life policy fund, to admit the member to the fund was unfair or unreasonable; or

(c)    that the conduct (including any act, omission or representation) of an insurer, or of a representative of an insurer, relating to the sale of an annuity policy was unfair or unreasonable; or

(d)    that a decision of an insurer under an annuity policy is or was unfair or unreasonable; or

(e)    that a decision of a superannuation provider to set out, in a statement to which subsection (2) applies, an amount or amounts in respect of a person was unfair or unreasonable; or

(f)    that the conduct (including any act, omission or representation) of an RSA provider, or of a representative of an RSA provider, relating to the opening of an RSA was unfair or unreasonable; or

(g)    that a decision of an RSA provider relating to a particular RSA holder or former RSA holder is or was unfair or unreasonable; or

(h)    that the conduct (including any act, omission or representation) of an insurer, or of a representative of an insurer, relating to the sale of insurance benefits in relation to a contract of insurance where the premiums are paid from an RSA, was unfair or unreasonable; or

(i)    that a decision of an insurer relating to a contract of insurance where the premiums are paid from an RSA is or was unfair or unreasonable; or

(j)    that a decision by a death benefit decision-maker relating to the payment of a death benefit is or was unfair or unreasonable.

   Note 1: Section 1056 provides further limitations on when a superannuation complaint may be made to AFCA in relation to a decision about the payment of a death benefit.

   Note 2: Certain persons are taken to be members of regulated superannuation funds or approved deposit funds, or holders of RSAs (see section 1053A).

(2)    This subsection applies to a statement given to the Commissioner of Taxation under:

(a)    section 13 of the Superannuation Contributions Tax (Assessment and Collection) Act 1997; or

(b)    section 12 of the Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997; or

(c)    subsection 133-120(2) or 133-140(1) in Schedule 1 to the Taxation Administration Act 1953; or

(d)    section 390-5 or 390-20 in that Schedule.

(3)    A complaint made in accordance with subsection (1) of this section is a superannuation complaint.

(4)    However, a complaint is not a superannuation complaint to the extent that it is a complaint that:

(a)    a decision made by a trustee of a self managed superannuation fund; or

(b)    conduct engaged in by an insurer, or by a representative of an insurer, relating to the sale of an annuity policy maintained, or to be maintained, by a trustee of a self managed superannuation fund on behalf of its members; or

(c)    a decision made by an insurer, or by a representative of an insurer, under an annuity policy maintained by a trustee of a self managed superannuation fund on behalf of its members;

is unfair or unreasonable.

(5)    For the purposes of this section, a trustee, an insurer, an RSA provider or another decision-maker, makes a decision if:

(a)    the trustee, insurer, RSA provider or other decision-maker, or a person acting for the trustee, insurer, RSA provider or other decision-maker, makes, or fails to make, a decision; or

(b)    the trustee, insurer, RSA provider or other decision-maker, or a person acting for the trustee, insurer, RSA provider or other decision-maker, engages in any conduct, or fails to engage in any conduct, in relation to making a decision;

whether or not the decision or conduct involved the exercise of a discretion.

30    There followed provisions conferring power upon AFCA to join other parties to a superannuation complaint. The parties that may be joined to such a complaint included 'an insurer': s 1054(1)(c). There was no such power conferred in respect of other complaints that could be brought under the AFCA Scheme. It was further provided that in making a determination of a superannuation complaint, AFCA had all the powers, obligations and discretions conferred on 'the trustee, insurer, RSA provider or other person who … made a decision to which the complaint relates … or … engaged in conduct … to which the complaint relates': s 1055(1). There was no equivalent power that extended to non-members of the AFCA Scheme in respect of non-superannuation complaints.

31    Section 1054A conferred express power upon AFCA to require a person to give information or produce documents 'relevant to a superannuation complaint'. Section 1054B conferred power upon AFCA in relation to a superannuation complaint to require each party and any other person who, in AFCA's opinion, could provide information relevant to settlement or whose presence would be likely to be conducive to settling the complaint to attend a conciliation conference. Under s 1054C, AFCA could refer a question in respect of a superannuation complaint to this Court.

32    There were other provisions concerning the manner in which a superannuation complaint was to be addressed: s 1055. Importantly, the powers of AFCA in relation to a superannuation complaint were expressed to be subject to a limit stated in s 1055(7) which said that AFCA must not make a decision contrary to law or (subject to certain minor exceptions) contrary to the governing rules of a regulated superannuation fund or a contract of insurance.

33    There was express statutory provision in s 1055D as follows:

Compliance with determinations under the AFCA scheme

If:

(a)    a superannuation complaint has been made concerning a disability benefit (whether under a contract of insurance or otherwise); and

(b)    a determination is made by AFCA that a person other than a member of the AFCA scheme is responsible for determining either or both of the existence and the extent of the disability; and

(c)    AFCA joins the person under subsection 1054(1) as a party to the complaint;

the person must comply with any determination made in respect of the person by AFCA.

34    There was provision for a party to a superannuation complaint to appeal to the Federal Court on a question of law from AFCA's determination: s 1057(1).

35    Therefore, the AFCA Establishment Act introduced detailed and extensive provisions in relation to the AFCA Scheme that applied particularly to superannuation complaints (and not otherwise). They dealt with the nature of the determinations that could be made in respect of a superannuation complaint. They conferred powers upon AFCA that could be exercised in respect of third parties who were not required to be participants in the AFCA Scheme in order to fulfil the statutory requirements imposed upon financial services licensees. They conferred a statutory right of appeal.

36    In consequence, the powers that may be exercised in respect of a superannuation complaint including the ability to require third parties to join in the process, the nature of the decision to be made and the statutory right of appeal were all matters that differentiated any determination in respect of a superannuation complaint from any other determination made by AFCA under the AFCA Scheme.

37    In addition, as has been noted, the statutory requirements in relation to dispute resolution were confined to dealings with retail clients. They did not apply, for example, to dealings with clients in relation to insurance where those clients were not retail clients. This aspect of the regulatory structure is significant when it comes to the trustees of superannuation funds. They are parties who would not be expected to be retail clients, at least to the extent that the trustee was not responsible for a self-managed superannuation fund. Therefore, given the nature of the scheme, it is not to be expected that such trustees could bring complaints. As to self-managed superannuation funds, it is to be noted that s 1053(4)(a) provided that a complaint is not a superannuation complaint to the extent that it is a complaint that a decision made by a trustee of a self-managed superannuation fund is unfair or unreasonable.

Proceedings commenced by Metlife

38    In May 2019, Metlife commenced proceedings in this Court seeking declaratory relief to the effect that the determinations in respect of each of the 2017 and 2018 Complaints were not binding on Metlife. In its statement of claim it alleged that AFCA had no power to determine the 2017 Complaint because that power had been conferred upon FOSL. As to the 2018 Complaint, Metlife alleged that the complaint was 'a complaint relating to superannuation' within the meaning of s 1053(1) of the Corporations Act but was not a complaint of the kind listed in the provision. On that basis, Metlife alleged that there was no authority on the part of AFCA to determine the 2018 Complaint. In the alternative, it was alleged that the requirement for the complaint to be brought within two years applied and it had been made to AFCA outside the time limit which was 'non-extendable'.

39    Mr Edgecombe filed a submitting appearance and AFCA actively defended the claim by Metlife to declaratory relief. The defence filed by AFCA in response to Metlife's claim also sought to set up certain 'further defences'. By those defences, AFCA alleged that Metlife had acquiesced in the determination by AFCA of both the 2017 and 2018 Complaints. It also claimed that Metlife was estopped from departing from an assumption that had been made by AFCA and Mr Edgecombe that AFCA had jurisdiction to determine both of the complaints. Finally, AFCA alleged that, in the circumstances that had arisen, Metlife, AFCA and Mr Edgecombe had agreed by an ad hoc arrangement that AFCA should have the power to determine the 2017 and 2018 Complaints.

Cross-claim by AFCA

40    AFCA also took the further step of bringing a cross-claim for an order for specific performance requiring payment of the sum of $309,000 to the trustee of the superannuation fund (being the amount determined by AFCA as payable under the FSS Policy) and to calculate and pay to the trustee a total permanent disability benefit under the PBR Policy and interest being the outcome of the determination of the 2018 Complaint.

41    The cross-claim was confined to seeking enforcement of the terms of the determination made by AFCA. It did not raise the matters the subject of the further defences addressed in the defence.

42    The terms of the cross-claim gave rise to complaint on the part of Metlife as to its alleged lack of particularity concerning the nature of the agreement that AFCA was seeking to enforce. The issue was resolved on the basis that the claim was properly articulated in the following communication from solicitors acting for Metlife to solicitors acting for AFCA:

As we understand it, on its cross-claim, [AFCA] seeks specific performance of two (and only two) alleged contracts as follows:

1.    a tripartite contract between FOS, MetLife and Mr Edgecombe in respect of the FOS Complaint (FOS Contract) that is alleged to have been entered into on 7 December 2017; and

2.    a tripartite contract between AFCA, MetLife and Mr Edgecombe in respect of the AFCA Complaint (AFCA Contract) that is alleged to have been entered into on 1 November 2018.

As for the FOS Contract, it is alleged that the matters pleaded at subparagraphs 14(a) to (d) of [AFCA's] defence filed 6 September 2019 'varied' the FOS Contract so as to 'substitute' AFCA for FOS.

Your client alleges that:

1.    by the FOS Contract (as varied), [MetLife] agreed to comply with binding determinations of AFCA in relation to the FOS Complaint; and

2.    by the AFCA Contract, our client agreed to comply with binding determinations of AFCA in relation to the AFCA Complaint.

43    The use of the terminology 'varied' and 'substitute' gave rise to a submission in Metlife's written outline of submissions to the effect that there was no allegation of novation of the original contract brought into existence as a result of the 2017 Complaint. It was said that in the absence of a claim of novation by which Metlife, the Ombudsman, Mr Edgecombe and AFCA agreed that AFCA would determine the 2017 Complaint, the cross-claim failed to articulate a basis upon which the relief as to the 2017 Complaint could be sought.

44    The submission prompted an application by AFCA to amend its cross-claim. The proposed amendment did not address the form of the communication between solicitors that had dealt with Metlife's concerns about the lack of particularity concerning the nature of the agreement that AFCA was seeking to enforce. Instead it proposed changes to the cross-claim to add reliance upon two documents to support the claim that Mr Edgecombe had joined in a variation to substitute AFCA for the Ombudsman Service as the party who was to determine the 2017 Complaint. It also proposed reliance upon the alleged ad hoc arrangement pleaded in the defence as an alternative basis for the claim that Metlife had agreed that AFCA could determine the claim. Otherwise, the cross-claim continued to rely upon the following matters as pleaded in the defence (para 14) to support its claim that AFCA had been substituted for the Ombudsman Service when it came to the 2017 Complaint:

a.    on about 2 March 2018, AFCA was granted approval by the Australian Securities & Investments Commission to operate the FOS external dispute resolution (EDR) scheme;

Particulars

The approval was notified in writing by a letter dated 2 March 2018, a copy of which is in the possession of AFCA's solicitors and may be inspected by prior appointment.

b.    by an agreement between FOS and AFCA dated 5 March 2018, FOS agreed to transfer its assets and liabilities to AFCA;

Particulars

The agreement is in writing, a copy of which is in the possession of AFCA's solicitors and may be inspected by prior appointment.

c.    by application made on about 29 March 2018, MetLife applied to become a member of AFCA;

 d.    by that application, MetLife acknowledged and agreed that:

i.    AFCA would be the new operator of the FOS EDR scheme and MetLife would continue to be bound by the FOS ToR;

ii.    MetLife would be bound by the applicable terms of reference for the scheme operated by AFCA from time to time;

Particulars

The application was submitted online by Christina Grygiel of MetLife. The acknowledgement and agreement of those matters was express and in writing, and constituted by a form entitled 'Member Declaration' which was completed and submitted as part of the application process. Relevant documents have been provided to MetLife by AFCA's solicitors.

45    The position of Metlife on the amendment application was to seek clarification as to the nature of the case advanced by AFCA. In order to do so, counsel for Metlife stated what he understood the case to mean. No real objection was raised to the amendment if the case for AFCA was so confined. In substance, senior counsel for AFCA confirmed that was the nature of the case. The case as outlined was to the following effect:

(1)    When the 2017 Complaint was made there was a tripartite contract formed between Mr Edgecombe, Metlife and the Ombudsman Service by which the Ombudsman Service was to deal with the complaint according to the rules that were applied by the Ombudsman Service (FOS Rules).

(2)    By reason of the matters pleaded in paragraph 14 of the defence and the contents of the two letters (documents 44 and 55), there was a novation of the tripartite contract in respect of the 2017 Complaint by which AFCA was substituted for the Ombudsman Service as the party who was to deal with the 2017 Complaint under the FOS Rules.

(3)    Alternatively, there was an ad hoc agreement between Mr Edgecombe, Metlife and AFCA by which AFCA was to deal with the 2017 Complaint.

(4)    When the 2018 Complaint was made there was an agreement formed between Mr Edgecombe, Metlife and AFCA by which AFCA was to deal with the complaint according to the AFCA Rules.

(5)    Alternatively, if the 2018 Complaint was a superannuation complaint which AFCA could not consider then there was an ad hoc agreement between Mr Edgecombe, Metlife and AFCA by which AFCA was to deal with the 2018 Complaint.

(6)    The facts relied upon by AFCA to support the claims that there were ad hoc agreements were those pleaded in the defence. In substance, they were communications between Ms Grygiel of Metlife and the AFCA case manager in February 2019 following which Metlife participated in the process conducted by AFCA by providing submissions.

46    It should also be noted that counsel for Metlife accepted that if the Court rejected the contention that the 2018 Compliant was a superannuation complaint which AFCA could not consider then it followed that AFCA would succeed on its cross-claim as to the 2018 Complaint. This involved an abandonment of any claim in the alternative that the 2018 Complaint should not have been addressed under the AFCA Rules because it was out of time.

47    At the time, I reserved on the question whether to allow the amendment but allowed the case as articulated to be argued. I did so in order to afford an opportunity to Metlife to demonstrate prejudice if the way in which the case was advanced by AFCA was said to be outside the bounds of the case as described above. In the result, AFCA advanced a case of the kind outlined and no further complaint was raised about the way the case was pleaded. Therefore, I will formally order that there be leave to AFCA to amend its cross-claim in terms of its minute of further particulars of cross-claim dated 15 June 2021.

48    In its written outline of submissions, the position adopted by Metlife was that its cause would be 'sufficiently vindicated by an order dismissing AFCA's cross-claim (and an order for costs)'. It submitted that if such an order was made, it would not press for any relief on its originating application. By the conclusion of oral submissions, counsel for Metlife withdrew the application for relief in relation to the 2017 Complaint. Rather than advance a positive case to the effect that the determination of the 2017 Complaint was not binding, Metlife confined its position to answering the cross-claim by AFCA. It was submitted that as the case as alleged had not been established, the cross-claim must be dismissed. In effect, it abandoned an attempt to prove affirmatively that the determination of the 2017 Complaint was not binding on Metlife. Instead, it confined its case to one in which it maintained that the way in which AFCA said the determination was binding was a case that should not be accepted. Metlife's claim concerning the 2018 Complaint was maintained but on the basis of a submission to the effect that it was sufficient to vindicate its interests if the cross-claim as to the 2018 Complaint was dismissed.

49    There was no dispute between the parties that the 2018 Complaint was not a complaint of the kind listed in s 1053(1)(a) to (j) of the Corporations Act. However, there was a dispute between them as to whether the 2018 Complaint was a complaint relating to superannuation. In addition, AFCA maintained in the alternative that even though the complaint concerned insurance obtained by the trustee of superannuation fund, nevertheless the complaint was not a superannuation complaint because it was a complaint against Metlife in respect of the beneficial interest that Mr Edgecombe was alleged to have in the FSS Policy. Therefore, AFCA's position was that even if Metlife succeeded as to its claim concerning the proper construction of s 1053 of the Corporations Act, AFCA contended that the 2018 Complaint was not a 'complaint relating to superannuation' for the purposes of that provision. Therefore, it could be dealt with as a non-superannuation complaint under the AFCA Rules. Indeed, it claimed that there was express provision in the AFCA Rules that contemplated such an approach.

AFCA's contention concerning a 'complaint relating to superannuation'

50    In both its defence and cross-claim, AFCA maintained that the 2018 Complaint was a complaint falling within s B.2 of the AFCA Rules. Section B.2 deals with the type of complaint that may be made under the AFCA Scheme that is 'other than a Superannuation Complaint'. Rule B.2.1 provides for the circumstances from which a complaint must arise if it is to be dealt with under the AFCA Rules on the basis that it is a complaint 'other than a Superannuation Complaint'. Relevantly for present purposes, r B.2.1(e)(i) it provides as follows:

A complaint (other than a Superannuation Complaint) must arise from or relate to … a legal or beneficial interest of the Complainant arising out of … a financial investment (such as life insurance, a security or an interest in a managed investment scheme or a superannuation fund).

51    Rule E.1 of the AFCA Rules defines the term Superannuation Complaint in the following terms:

Superannuation Complaint has the meaning set out in section 1053 of the Corporations Act.

Accordingly:

a)    a complaint about an insurer's decision under an insurance policy held by the trustee of a Regulated Superannuation Fund or an Approved Deposit Fund will:

(i)    if all of the time limits in rule B.4.1.1 have been met, be considered as a Superannuation Complaint, by joining the insurer to a complaint against the trustee's decision;

(ii)    otherwise, be considered as a non-superannuation complaint against the insurer; and

b)    a complaint about financial product advice relating to superannuation is not a Superannuation Complaint unless it is provided by:

(i)    the trustee of a Regulated Superannuation Fund or Approved Deposit Fund, an RSA provider or a life company as issuer of an Annuity Policy (superannuation provider); or

(ii)    an employee or representative of a superannuation provider under the superannuation provider's licence, to a member of the Regulated Superannuation Fund, a beneficiary of the Approved Deposit Fund, a holder of the RSA or a person with an interest in the Annuity Policy.

Otherwise a complaint about financial product advice relating to superannuation will be considered as a non-superannuation complaint against the Financial Firm providing the advice.

52    AFCA relied in particular upon the terms of para (a)(ii) of the definition. It submitted that it had the effect that in a case like the present, by operation of the AFCA Rules, the members of AFCA agreed that upon a person making a complaint in circumstances such as the 2018 Complaint by Mr Edgecombe, the complaint would be considered as a Superannuation Complaint only if it was in time, but otherwise it would be considered as a non-superannuation complaint. This was said to be an operation of the AFCA Rules by way of contract. On that basis, it was claimed that the members of the AFCA Scheme had agreed that a complaint like the 2018 Complaint (being a complaint that could be advanced against a member of the scheme as a non-superannuation complaint) could be considered under the AFCA Scheme.

53    The unusual aspect of this submission was that it recognised that if a complaint of the kind made by Mr Edgecombe was within time then it could only be dealt with as a superannuation complaint. It would not be dealt with as a non-superannuation complaint. Only if the complaint was out of time would it be dealt with as a non-superannuation complaint. Further, in the case of a non-superannuation complaint there could be no power to complain against the superannuation trustee. Any such complaint could only be directed against an insurer who was a member of the AFCA Scheme and, on the basis of AFCA's submission, would be countenanced by the AFCA Rules even though there had been no dealings as between the complainant as a retail client and the insurer in relation to arranging the insurance or making a claim.

54    It was submitted by AFCA that s 1053(1) was concerned only with the circumstances in which a complaint could be dealt with as a superannuation complaint. It appeared to follow from this aspect of AFCA's contentions that even if the 2018 Complaint was a superannuation complaint for the purposes of s 1053(1), the complaint could still be considered under the AFCA Rules as a non-superannuation complaint (at least where it was out of time as a superannuation complaint). In effect, s 1053(1) was to be read as if it described the types of complaint that could be made on the basis that they were superannuation complaints. It confined the types of complaints that could be made as a complaint relating to superannuation but it did not concern the circumstances in which a complaint may be made as a non-superannuation complaint under the AFCA Rules. On that basis, AFCA submitted that the 2018 Complaint by Mr Edgecombe was not a complaint 'relating to superannuation' for the purposes of s 1053(1).

Order for separate question

55    Issues arose as to whether it was appropriate for AFCA to advance the further defences. Metlife maintained that they were claims that it was inappropriate for AFCA as an independent decision maker to be advancing. In effect it was said that the claims should be advanced, if at all, by Mr Edgecombe. Having regard to the nature of that complaint and the submitting appearance of Mr Edgecombe which had been filed in the expectation that the defences as pleaded would be advanced, an order was made that the hearing proceed as a determination of a separate question (which did not include the claims of estoppel or acquiescence, but did include the claims that there were ad hoc agreements). The order was expressed in the following terms:

The question whether in the events which have occurred and on the proper construction of the relevant statutory provisions and the AFCA Rules, the first respondent had jurisdiction or authority to make a determination in respect of the complaints 600361 and 507677 each dated 12 April 2019 be separately determined.

56    Complaint 600361 is the 2018 Complaint and 507677 is the 2017 Complaint.

Issues for determination

57    With the above introduction, it is now possible to state the issues for determination in the present proceedings. They are:

(1)    On the proper construction of s 1053(1) of the Corporations Act, does it provide for a category of complaints that includes the 2018 Complaint that cannot be made under the AFCA Scheme?

(2)    If yes to (1), was there an ad hoc agreement by which AFCA was to determine the 2018 Complaint outside the AFCA Scheme?

(3)    Was there a novation of the agreement to allow AFCA to deal with the 2017 Complaint as alleged by AFCA?

(4)    If no to (4), was there an ad hoc agreement by which AFCA was to determine the 2017 Complaint?

(5)    Was it inappropriate, for AFCA to undertake the role that it did in the proceedings having regard to its status as the independent decision maker under the AFCA Scheme in respect of which the holder of a financial services licence under the Corporations Act must be member and if so what, if any, significance does that conclusion have for the result?

Issue (1): On the proper construction of s 1053(1) of the Corporations Act, does it provide for a category of complaints that includes the 2018 Complaint that cannot be made under the AFCA Scheme?

Relevant principles

58    The principles of statutory construction were not in issue between the parties. They were recently summarised in Chappell as executor of the estate of Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205 at [31]-[35] (by Buss P and Mitchell JA) in the following terms:

The focus of statutory construction is upon the text of the provisions having regard to their context and purpose.

The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision …

The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.

However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself …

The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions … The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose …

(citations omitted)

See also Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCAFC 86 at [27]-[30] (Allsop CJ, Colvin and Anastassiou JJ) and the summary by Bell P in Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 at [25]-[41].

59    As was explained by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(footnotes omitted)

The competing contentions as the terms of s 1053(1)

60    The terms of s 1053(1) have already been stated. For ease of reference, the relevant words are:

A person may, subject to section 1056, make a complaint relating to superannuation under the AFCA scheme only if the complaint is a complaint [of the kind listed].

(emphasis added)

61    Metlife advanced a construction to the effect that s 1053(1) defines a class of cases that cannot be brought under the AFCA Scheme. It said that the legislation does so by excluding from the scheme complaints relating to superannuation that are not within the list that appears in s 1053(1). If Metlife's case is accepted, then there are, as a matter of logic, types of complaints relating to superannuation that, by operation of s 1053, cannot be brought within the AFCA Scheme irrespective of whether the members of the scheme agree to the contrary. Its case is that a complaint about the conduct of an insurer in relation to a policy of insurance agreed with the trustee of a superannuation fund is one such type of complaint.

62    AFCA advanced a construction of s 1053(1) that would confine its terms to identifying those instances where a complainant may make a claim as a superannuation complaint (and thereby invoke the statutory authority that was conferred in respect of superannuation complaints and not otherwise). On AFCA's case, s 1053(1) was not concerned with identifying the class of cases that could be the subject of complaint. Rather, it was concerned with identifying a class of cases that could not be brought on the basis that they were superannuation complaints (thereby invoking the statutory authority that applied only to such complaints). It involved reading s 1053(1) as providing, in effect, as follows:

A person may, subject to section 1056, make a complaint as a complaint relating to superannuation under the AFCA scheme only if the complaint is a complaint [of the kind listed].

(words in italics added)

63    Therefore, on Metlife's case, the words 'a complaint relating to superannuation' meant a complaint which related to superannuation in the sense that it concerned superannuation as its subject matter and on AFCA's case those words meant a complaint which related to superannuation in the sense that it invoked the statutory authority conferred in respect of superannuation complaints by the provisions introduced into the Corporations Act by the AFCA Establishment Act.

64    AFCA also claimed that even if Metlife's construction was correct, then the 2018 Complaint was not a 'complaint relating to superannuation' because it was a complaint about the decision of Metlife. It was said that the complaint was not a superannuation complaint because it was directed to the actions of Metlife and was not a complaint about the conduct of the trustee or any decision by the trustee. It was submitted that the fact that the relevant insurance policy 'happened to be transacted through' the trustee was 'entirely incidental'. As to this aspect, it may be noted that the insurance policy was not contracted by Mr Edgecombe through the trustee. The contract of insurance was made between the trustee and Metlife. Any benefit that was payable under the policy was payable to the trustee as it was the policy holder (although, it has been held that a person in the position of Mr Edgecombe has a beneficial interest in the monies payable under the policy to the trustee: Sayseng v Kellogg Superannuation Pty Ltd [2003] NSWSC 945 at [80] (Bryson J)).

65    For the following reasons, having regard to relevant matters of context, the construction advanced by AFCA is to be preferred. If, contrary to that conclusion, Metlife's construction is correct then the alternative contention by AFCA should not be accepted.

The alleged significance of the words 'only if'

66    Metlife says that the grammatical structure of s 1053(1) and the use of the qualifying terminology 'only if' admit of no alternative construction but that it is only where a complaint relating to superannuation falls within one or more of the listed instances that it can be made under the AFCA Scheme.

67    Metlife supports its case by reference to the particular terms of s 1053(1)(i) which specify one type of case where a complaint can be brought which it says supports its claim that there are instances where a complaint relating to superannuation cannot be brought under the AFCA Scheme. It refers to an instance where there is a complaint 'that a decision of an insurer relating to a contract of insurance where the premiums were paid from an RSA is or was unfair or unreasonable'.

68    The term RSA has the same meaning as in the Retirement Savings Accounts Act 1997 (Cth). Section 7 of that Act sets out a brief summary of the Act. It says that the Act provides for retirement savings accounts to be offered by certain financial institutions that will provide benefits upon retirement or death and may provide a limited range of other benefits. The accounts are subject to concessional tax treatment. An RSA is a form of account or policy that meets the requirements of the legislation. Under the legislation, the funds in the RSA may be used to purchase a policy of insurance that will provide certain benefits to the holder: s 15(4). Therefore, an RSA may be operated in a manner that affords an insurance benefit in a similar manner to that which arises where the trustee of a superannuation fund obtains insurance that may provide a benefit to a member upon certain events occurring such as the total or permanent disablement of a member of the superannuation fund. The substantive difference appears to be that the dealings in relation to arranging an insurance policy to be paid from an RSA are with the holder of the RSA whereas the dealings in relation to arranging an insurance policy with a benefit to be paid into a superannuation fund are with the trustee of the fund.

69    The similarity between the subject matter of the complaint that might arise if a benefit is not paid under a policy through an RSA and the subject matter of a complaint that might arise if a benefit that is not paid under a policy agreed with the trustee of a superannuation fund was advanced to support the contention that a deliberate decision was made to include the first case and not include the second case in the list of instances set out in s 1053(1). Further, the provisions of the Corporations Act dealing with superannuation complaints expressly refer to the application of such provisions to RSAs and RSA providers. Accordingly, the fact that s 1053(1)(i) refers to RSAs but not to regulated superannuation funds when it comes to certain types of complaints might be thought to be a matter that supports the case advanced by Metlife on the basis that it indicates that it is only in the case of an RSA that a complaint relating to superannuation may be brought against the insurer.

70    However, the submission fails to recognise the significance of the terms of s 1053(1)(a) which provide for a complaint that the trustee of a superannuation fund has made a decision that was unfair or unreasonable and the detailed provisions (already outlined) that contemplate the joinder of insurers as third parties and the exercise of the powers of insurers in making a decision. Those provisions taken together are equally consistent with AFCA's case which is to the effect that if a complaint is to be made on the basis that it is to be dealt with as a superannuation complaint then, in a case like the present, it must involve a complaint against the trustee. If AFCA's construction is accepted then it is logical that a complaint in respect of insurance arranged by the trustee of a superannuation fund could be dealt with as a superannuation complaint (with the relevant statutory authority conferred on AFCA) only if it came within s 1053(1)(a).

71    Metlife also relies upon the heading to the Subdivision of which s 1053 is the first provision. The heading reads as follows:

Subdivision A - When complaints relating to superannuation can be made under the AFCA scheme

72    In construing the Corporations Act it is the terms of the Acts Interpretation Act 1901 (Cth) as they stood as at 1 January 2005 that must be applied: see s 5C of the Corporations Act and s 2(1) of the Legislative Instruments Act 2003 (Cth). There may be regard to headings of subdivisions: s 13(1) of the Acts Interpretation Act as at 1 January 2005.

73    However, the terms of the heading are also equally consistent with both constructions. They indicate only that s 1053 (and the rest of the provisions in the Subdivision) are operative provisions that describe the circumstances that must pertain before a complaint 'relating to superannuation' can be made under the AFCA Scheme.

74    The fact that s 1053(1) identifies a class of complaints that can be brought only if they are 'relating to superannuation' does not answer AFCA's case. The real issue between the parties concerns the meaning of those particular words, when read within the overall statutory context.

Construing connecting phrases such as 'relating to'

75    Terms such as 'with respect to', 'in relation to' or 'in connection with' constitute prepositional phrases of indefinite content: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [24] (French CJ). They require a nexus between two things. There can be a considerable range in the degree or type of connection that may be connoted by such phrases. As was observed by French CJ in R v Khazaal [2012] HCA 26; (2012) 246 CLR 601 at [31]:

Relational terms such as 'connected with' appear in a variety of statutory settings. Other examples are: 'in relation to'; 'in respect of'; 'in connection with'; and 'in'. They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.

(footnote omitted)

76    As was said in Hatfield v Health Insurance Commission (1987) 15 FCR 487 of the term 'in connection with', such words 'do not usually carry the widest possible ambit, for they are subject to the context in which they are used': at 491. They may require a close relationship or it may be sufficient if there is some degree or respect in which the two things may be associated. Therefore, like the phrase 'in relation to', they can have a broad or narrow operation: Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209; (2018) 98 NSWLR 599 at [67] (Bathurst CJ, Beazley P, Basten, Gleeson and Payne JJA).

77    In such cases the sufficiency and character of connection or association that may be required will depend upon matters of context: Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368 at [170]-[171] (McColl JA, Beazley P agreeing); and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469 at [28]-[29] (Black CJ, Sundberg, Katz and Hely JJ). Therefore, it is necessary to have regard to matters of context to determine the association that is required in a particular case where such connecting words are used: Travelex Ltd v Commissioner of Taxation (Cth) [2010] HCA 33; (2010) 241 CLR 510 at [25] (French CJ and Hayne J).

78    In a private law context, arbitral clauses which use connecting phrases to describe the disputes that the parties agree to submit to arbitration and construed on the basis of a presumed or imputed intention to the effect that they ordinarily intend all aspects of the defined relationship in respect of which they have agreed to submit disputes to be determined by the arbitral tribunal: TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533 at [16] (French CJ and Gageler J). See also Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170; (2017) 257 FCR 442 at [193] (Allsop CJ, Besanko and O'Callaghan JJ), but noting the comment on appeal Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514 at [25] (Kiefel CJ, Gageler, Nettle and Gordon JJ).

79    Although s 1053 deals with the ambit of a dispute resolution procedure, different contextual considerations pertain to those which arise in a private law arbitration context. The obligation to participate in the AFCA Scheme arises because of a statutory prescription attaching to financial services licensees. Further, it is concerned with dealings by the holders of such licences with retail clients. It affords to those persons who may participate in the scheme, particularly those aspects which deal with non-superannuation complaints, the opportunity to accept a determination made by reference to what is fair and reasonable rather than a strict adjudication of their private law rights.

80    Most importantly, as has been explained, the statutory provisions concerned with superannuation complaints have detailed provisions concerning the manner in which insurers (and others) may be brought in as third parties and the nature and extent of the determinations that may be made that may affect the rights of those third parties. Those provisions also require a different approach to those which may apply to non-superannuation complaints. One manifestation of that difference is the extent to which the determinations by AFCA in relation to superannuation complaints must conform to the law and the provisions of the insurance contract (as distinct from being guided by what is fair and reasonable). Another manifestation is the absence of any monetary limit in relation to superannuation claims.

81    These are all contextual reasons why s 1053(1) may be concerned, as AFCA contends, to ensure that only certain types of complaints could be made on the basis that they could be dealt with as superannuation complaints and not concerned with curtailing the circumstances in which complaints may be made under the AFCA Scheme as non-superannuation complaints.

Previous regime for complaints

82    AFCA submitted that before the enactment of the AFCA Establishment Act, a person in the position of Mr Edgecombe could make a complaint against an insurer to the Ombudsman Service. Indeed that is what had occurred in relation to the 2017 Complaint and it was only because of the monetary limit that the Ombudsman Service had been unable to deal with the 2018 Complaint. The provisions that were introduced into the Corporations Act by the AFCA Establishment Act were said to continue the nature of the regime that had applied previously (including that part that operated under the Superannuation Complaints Act) but bring it together as a one-stop shop. Based upon those two contextual aspects, a submission was advanced to the effect that the evident purpose of the AFCA Establishment Act was to continue the previous structure concerning the types of complaints that could be made including its distinctive characteristics for superannuation complaints, but provide for all such complaints to be made to AFCA rather than to separate bodies.

83    Neither party made submissions concerning the circumstances in which a complaint of the present kind could have been made to the Ombudsman Service. There was simply no issue between the parties in that regard concerning either the 2017 or 2018 Complaints. Metlife did not dispute the proposition that before the AFCA Establishment Act, a complaint such as the 2018 Complaint could have been brought to the Ombudsman Service as a complaint against Metlife (and was not a complaint that had to be brought, if at all, in the Superannuation Complaints Tribunal).

84    There is considerable support for the submission to the effect that the purpose of the provisions introduced into the Corporations Act by the AFCA Establishment Act was to continue the scope and structure of the previous regime in terms of the type of complaints that might be brought but bring them within a one-stop shop in the form of the AFCA Scheme. The recommendation of the Ramsay Report was to that effect as were the statements made upon the second reading of the Bill to introduce the AFCA Establishment Act.

85    Importantly, the provisions enacted by the AFCA Establishment Act reflected the scope of the external dispute resolution schemes that applied previously. In particular (and without being exhaustive), the following aspects were common to both the previous regime and the AFCA Scheme:

(1)    there is no monetary or compensation limit for superannuation complaints but there is such a limit for other complaints (notably complaints against insurers);

(2)    a decision by a trustee of a regulated superannuation fund relating to a member of the fund could be the subject of a complaint on the basis that it was unfair or unreasonable;

(3)    they provide for the same time limits on bringing complaints;

(4)    there is power to require third parties such as insurers in the position of Metlife to be joined to a complaint in the case of superannuation complaints but not otherwise;

(5)    in determining the complaint, the decision-maker could exercise all the powers, obligations and discretions of a third party in the case of superannuation complaints but not otherwise;

(6)    questions of law arising in relation to the determination of a superannuation complaint may be referred to this Court but not otherwise; and

(7)    in both cases, the nature of the determination to be made in the case of superannuation complaints is expressed in similar terms and is subject to a limitation to the effect that the determination must not be contrary to law, the governing rules of the superannuation fund or the terms and conditions of an insurance policy.

86    Those aspects provide considerable support for AFCA's construction.

AFCA's lacuna argument

87    Nevertheless (and perhaps inconsistently), it was submitted for AFCA that there was a difference between the provisions of the Superannuation Complaints Act and the Corporations Act concerning the authority to review a decision of an insurer in a case like the present that would give rise to a lacuna if Metlife's contention as to the proper construction of s 1053(1) was accepted.

88    Under the Superannuation Complaints Act, the Tribunal was required to review any decision of an insurer joined as a third party and for that purpose had all the powers, obligations and discretions conferred on the insurer: s 37(2). The Tribunal could also affirm or vary the decision of the trustee or insurer, substitute a decision made by the Tribunal or remit the matter to the trustee or the insurer for reconsideration in accordance with directions of the Tribunal: s 37(3).

89    The Corporations Act provisions that were introduced by the AFCA Establishment Act were expressed in somewhat different terms. They were to the following effect:

(1)    In making a determination of a superannuation complaint, 'AFCA has … all the powers, obligations and discretions that are conferred on the trustee, insurer, RSA provider or other person who … made a decision [or engaged in conduct] to which the complaint relates' (s 1055(1)).

(2)    If AFCA is satisfied that a decision in its operation in relation to the complainant is unfair or unreasonable or both, then AFCA can take action that includes varying or remitting the decision to the person who made it for reconsideration or substituting a decision by AFCA but in each case only for the purpose of placing the complainant, as nearly as possible, in such a position that the unfairness, unreasonableness or both no longer exists (s 1055(4) and (6)).

(3)    If AFCA makes a determination to vary a decision of another person or to substitute a decision for a decision of another person then that decision as varied or substituted is for all purposes (other than making a complaint about the decision) taken to be a decision of the other person and takes effect from the date of the original decision (s 1055B(3)).

(4)    If a superannuation complaint concerns a disability benefit and a determination is made that a person other than the member of the AFCA Scheme is responsible for determining either or both of the existence and the extent of the disability and that person has been joined as a party to the complaint then the person must comply with any determination made by AFCA (s 1055D).

90    Therefore, under both regimes, there was a discretion whether to join a third party such as an insurer in the position of Metlife. However, if the insurer was joined under the Superannuation Complaints Act then there was an express obligation to review the decision of the insurer. Under the AFCA Scheme provision there was no equivalent provision.

91    AFCA sought to advance a submission that the absence of an express obligation under the legislation concerning the AFCA Scheme to review the decision of the insurer meant that there would be a lacuna if a person in the position of Mr Edgecombe could not make a complaint other than a superannuation complaint against an insurer under the AFCA Scheme. The foundation for that submission appeared to be the possibility that AFCA might join an insurer to a superannuation complaint but then not make a determination in respect of the actions taken by the insurer. This possibility was advanced to support the claim that s 1053(1) should be construed as a definitional provision that governed when a complaint could be made as a superannuation complaint but not to confine the circumstances in which a complaint could be made against the insurer that did not involve it being brought in as a third party to a complaint against the trustee of a superannuation fund.

92    The difficulty with the submission is that the AFCA Establishment Act contemplated that the detailed provisions as to how a determination would be made would be contained within the AFCA Scheme as approved by ASIC. As a result, the very lengthy provisions in the Superannuation Complaints Act as to the manner in which a determination would be made in relation to each type of complaint that might come before the Tribunal were not reproduced in the provisions of the Corporations Act concerning the AFCA Scheme. Rather, the statutory provisions were confined to the conferral of the necessary statutory authority for AFCA to be able to operate a scheme of the kind that had previously been administered by the Tribunal. Significantly, in respect of superannuation complaints, the Corporations Act provisions conferred power to set aside and remit, vary or substitute decisions in respect of insurers and others who had been joined as third parties. In that respect, it reflected the terms of the Superannuation Complaints Act. Further, as has been noted, under the AFCA Scheme provisions an insurer in the position of Metlife who had been joined was required to comply with any determination that required the insurer to determine the existence or extent of a relevant disability. What was absent was any detail about the determination to be made by AFCA where an insurer (or other third party) had been joined. However, the absence of an express requirement to do so did not mean that AFCA could join an insurer (or other party) and then fail to make a determination in relation to that insurer (or other party). Having joined the other party it would be required to then make a determination that included that party (a matter that was evident from the Corporations Act provisions that required an insurer to conform to any such determination). Therefore, there is no substantive difference between the schemes. The difference in wording is better explained by the fact that the AFCA Scheme leaves the detail for the AFCA Rules to be approved by ASIC.

93    AFCA also submitted that a lacuna would exist under the AFCA Scheme if a complaint against an insurer about a failure by an insurer to pay a benefit under an insurance policy could not be the subject of complaint under the AFCA Scheme. However, as has been noted, in cases where the complaint is like the 2018 Complaint, the AFCA Rules provide that a complaint will be treated as a complaint against the trustee's decision to accept the rejection by the insurer of the claim to the benefit and the express statutory authority to join the insurer in such cases will be exercised. Therefore, the AFCA Rules provide for such complaints to be able to be dealt with as superannuation complaints which make detailed provision for the joinder of a third party such an insurer (s 1054), for the exercise by AFCA of the powers, obligations and discretions conferred on the third party (s 1055) and for the third party to give effect to the determination (s 1055D). The AFCA Rules are themselves inconsistent with AFCA's lacuna argument. It is not the case that there could be no complaint. Rather, on Metlife's argument any such complaint can only be made by raising a complaint about the conduct of the trustee and then joining the insurer.

94    For those reasons, I do not accept the submission to the effect that the construction contended for by Metlife would give rise to a lacuna of the kind asserted by AFCA.

The definition of superannuation complaint

95    Section 1053(3) defines the term 'superannuation complaint' by reference to the terms of s 1053(1). The definition has been quoted above, but for ease of reference, it is as follows:

A complaint made in accordance with subsection (1) of this section is a superannuation complaint.

96    Expressed in those terms it is consistent with both constructions.

AFCA's reliance upon the former terms of s 912A(2)(b)

97    AFCA placed reliance upon the terms of s 912A(2)(b) of the Corporations Act as it existed prior to the enactment of the AFCA Establishment Act. It required a financial services licensee to be a member of one or more external dispute resolution schemes that covered or together covered complaints against the licensee in connection with the provision of all financial services to retail clients other than complaints that could be made to the Tribunal. It was said that this supported a conclusion that if a relevant complaint could not be dealt with by the Tribunal then it had to be dealt with by an authorised external dispute resolution scheme. This aspect of the regime as it existed before the enactment of the AFCA Establishment Act was said to provide part of the context for construing the terms of s 1053. However, it assumed the correctness of the lacuna contention (being a contention that I do not accept for the reasons already given).

The alleged manifest purpose of providing access to the AFCA Scheme of a person entitled to the benefit of proceeds of insurance arranged by the trustee of a superannuation fund

98    The final matter relied upon by AFCA concerned the rights of a person in the position of Mr Edgecombe to bring an action in the courts directly against the insurer based upon his status as a member of the Fund: see Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385 at [65]. The existence of such a right was said to lend support to a construction of the AFCA Scheme provisions which afforded to a person in the position of Mr Edgecombe the ability to be able to make a complaint directly against the insurer, in the present case, Metlife. However, the mere fact that a person has a cause of action against an insurer does not found an ability to make a complaint under the AFCA Scheme. The provisions of the scheme do not operate by reference to whether or not there is such a right.

99    As has been observed, the AFCA Scheme (and the terms of reference previously administered by the Ombudsman Service) allowed for a determination to be made based upon what was fair and reasonable and did so in the context of regulation concerned with dealings with retail clients. Where, as here, there are no direct dealings between the insurer and retail clients concerning the terms of insurance, it is conceivable that the legislation may make allowance for the particular circumstances that apply where the insurance is arranged by the trustee of a superannuation fund. The difference in the nature of the dealings may provide an explanation as to why complaints concerning insurance arranged by the trustee of a superannuation fund may be confined to the matters listed in s 1053(1). When this possibility was raised in the course of argument it was embraced by Metlife. However, all that the point demonstrates is that it is possible to conjure purposes to support the constructions advanced by each of Metlife and AFCA. It is not a basis for preferring a particular construction. As has been noted, it is only where such purposes can be derived from the language of the legislation or the contextual materials that they may be brought to account in resolving the question of construction. Otherwise they are, in effect, just a way of conjecturing as to why one or other of the two competing constructions might have been intended. The proper course is to reason from context not from supposition as to what the purpose might have been.

Conclusion on construction question

100    Having regard to the context, the construction contended for by AFCA is to be preferred. Under the previous regime, a complaint of the kind made by Mr Edgecombe as the 2018 Complaint could be made to the Ombudsman Service (and was not a complaint that had to be made to the Superannuation Complaints Tribunal) provided it was within the monetary limits. A complaint could also be made to the Tribunal concerning the conduct of a superannuation trustee in dealing with an insurer as to an insurance benefit to which the member claimed to be entitled. In such a case, a different procedure was followed with a different type of determination than if the complaint was determined by the Ombudsman Service. Therefore, there were different types of determinations that could be made depending upon whether a complaint was made to the Tribunal or to the Ombudsman Service. An examination of the previous regime and the provisions of the AFCA Establishment Act shows that the provisions in Division 3 of the Corporations Act that were introduced by the AFCA Establishment Act were directed to establishing a one-stop shop rather than changing the types of determinations that could previously be made by the Tribunal and the Ombudsman Service respectively. The terms of the Ramsay Report and the second reading speech support that conclusion. There is no more specific purpose that may be discerned.

101    Therefore, the context supports a construction which continues the availability of the kinds of determinations that could be made under the previous regime rather than a construction which identifies a category of complaints that could no longer be brought before external dispute resolution.

102    It follows that, having regard to context, the construction advanced by AFCA is to be preferred. The phrase 'a complaint relating to superannuation under the AFCA Scheme' means a complaint that relates to superannuation in the sense that it seeks to invoke the particular statutory authority conferred by Division 3.

AFCA's alternative case

103    It follows from the conclusion just expressed that it is not necessary to consider AFCA's alternative case to the effect that if Metlife's case as to the proper construction of s 1053(1) was accepted then the 2018 Complaint made by Mr Edgecombe was not a complaint relating to superannuation but was a complaint about the decision of Metlife. However, as the matter was fully argued, I will address it briefly.

104    AFCA says that Mr Edgecombe's complaint was directed towards the conduct of Metlife and not the conduct of the trustee. I accept that his complaint was expressed in that manner. However, the way in which Mr Edgecombe chose to express his complaint cannot be determinative. If s 1053(1) is construed in the manner that Metlife contends then it does not apply by reference to the way in which a complaint is expressed but by reference to whether the complaint relates to superannuation. The insurance policy the subject of Mr Edgecombe's complaint was a policy that had been negotiated and agreed between Metlife and the trustee. The benefit that might be received by Mr Edgecombe if there was liability under the policy was as a member of the superannuation fund. Even though he might be said to have a beneficial interest in the moneys to be paid to the trustee, his claim arose solely from his status as a member of the superannuation fund and could only be based upon that status.

105    For those reasons, on the assumption that Metlife's construction is correct, the 2018 Complaint was a complaint relating to superannuation within the meaning of those words as used in s 1053(1).

106    It is not necessary to address the further argument by AFCA to the effect that, irrespective of the terms of s 1053(1), the parties had agreed that a complaint such as the 2018 Complaint could be brought under the AFCA Scheme. In that regard, reliance was placed by AFCA upon the decisions in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 and QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 to support a claim that the AFCA Rules operated by way of agreement and not as a legislative instrument. However, I note that there are difficulties with that contention because, for reasons that have been given, aspects of the AFCA Scheme depend upon statutory authority. Therefore, it is not correct to view the AFCA Rules as if they operated solely with contractual authority. The consensual manner with which those rules take effect are one of the incidents of the scheme that provide the foundation for the reasoning that they do not involve the exercise of judicial power. However, that does not mean that once submitted to they are exclusively contractual in character. In important respects they depend upon statutory authority for their operation. They operate on the basis that they have been approved by ASIC as rules that give effect to the statutory requirements that must apply to the AFCA Scheme. Those requirements include s 1053. If Metlife's construction were to be accepted and there was indeed a statutory prohibition upon certain complaints being considered under the AFCA Scheme then it is difficult to see how a provision of the scheme that was contrary to that prohibition might nevertheless operate consensually in the absence of clear manifestation of an intention by the parties to establish a dispute resolution procedure outside the confines of the AFCA Scheme as provided for by the Corporations Act.

Issue (2): If yes to Issue (1), was there an ad hoc agreement by which AFCA was to determine the 2018 Complaint outside the AFCA Scheme?

107    Given the conclusion reached as to Issue (1), Issue (2) does not arise. However, as it involves matters of evidence, I will deal with it against the possibility that I am wrong as to my conclusion concerning Issue (1). In doing so, I will assume (contrary to my conclusion on Issue (1)) the correctness of Metlife's construction.

108    It was common ground that AFCA had the power to enter into an ad hoc agreement to determine a dispute. The claim made by AFCA was that the dealings between the parties had resulted in an agreement to determine the 2018 Complaint even though it was not a superannuation complaint.

109    The main obstacle for AFCA's claim is that the evidence on the application does not support the conclusion that the parties had agreed that AFCA would determine the 2018 Complaint on some specified basis other than the AFCA Rules. The evidence is to the effect that Mr Edgecombe sought to involve AFCA under the AFCA Scheme and that, throughout the dealings between the parties, AFCA was purporting to discharge its responsibilities under the AFCA Scheme. Further, the evidence is to the effect that Metlife dealt with AFCA on that basis. In those circumstances, the conduct of the parties was not directed to the formation of some form of agreed dispute resolution process outside the terms of the AFCA Scheme. The relevant evidence is summarised below.

110    On 1 November 2018, Mr Edgecombe submitted an online complaint to AFCA. It was described as a complaint with Metlife. It said that the compliant related to life insurance provided through a superannuation fund and referenced the earlier complaints made to the Ombudsman Service. In the complaint summary, Mr Edgecombe said:

I am requesting AFCA commence investigation into the Police Blue Ribbon TPD claim [made in respect of the PBR Policy] that FOS [the Financial Ombudsman] were unable to tackle because the claims value exceeded FOS authority. The information I have already provided FOS, and is on file, is relevant to both claims hence most of what you will require will already be on hand at FOS. . The new information I will provide FOS/ACFA [sic] prior to 22 November 2018 (that will be put before FOS panel review for the Life Insurance TPD claim) is also information pertinent to my Police Blue Ribbon TPD claim hence will need to be used in combination with that already in FOS possession.

111    In relation to the authority of AFCA, the complaint stated:

By submitting this form, I consent to AFCA considering the complaint against the financial firm under the AFCA Rules. I authorise AFCA to:

•    exchange my information, including relevant sensitive information, to other parties or external organisations where reasonably necessary for the purpose of dealing with the complaint, and as required or permitted by law;

•    refer the complaint to another financial firm or dispute resolution service where AFCA decides it is appropriate;

•    exchange my information, including relevant sensitive information, between financial firms where there are multiple complaints against different financial firms.

112    Therefore, the complaint sought to invoke the authority of AFCA conferred by the AFCA Rules to deal with complaints in respect of members of AFCA. In doing so it referred to the provisions in the AFCA Rules as to time limits for complaints.

113    On 21 December 2018, AFCA wrote to Mr Edgecombe referring to the complaint and stating that AFCA could not consider the complaint because it had been lodged out of time.

114    After further review, AFCA wrote to Ms Grygiel of Metlife stating that although the complaint did not meet the time limits, AFCA may be able to accept a complaint against an insurer under its general jurisdiction. The letter then stated:

AFCA has made the decision to exercise this discretion to accept Mr Edgecombe's complaint against Metlife in relation to the Police Blue Ribbon TPD policy, because the complaint is otherwise within our Rules under our general jurisdiction as outlined at B.4.3.1.

115    Again it can be seen that AFCA was dealing with the 2018 Complaint by reference to the AFCA Rules.

116    Metlife wrote to the trustee on 25 February 2019 concerning claims made by Mr Edgecombe in respect of the benefit to which he claimed to be entitled under the terms of the PBR Policy. The letter concluded with a reference to an available complaints process. It said that a complaint could be directed to the Dispute Resolution Officer at Metlife by the superannuation fund (that is, by the trustee) or the member (that is, Mr Edgecombe). The letter then stated:

MetLife will try to resolve the complaint within 45 days, but if the Fund or the member doesn't hear from us within this time, or still aren't satisfied with the outcome, the member of the Fund can call or write to the Australian Financial Complaints Authority (AFCA) to request an independent review of the claims.

117    The next day, Ms Grygiel then spoke to the AFCA case manager, Ms Van Der Poel. Her evidence of that conversation (which was not challenged) was as follows:

At the time I received AFCA's letter dated 12 February 2019, it was unclear to me why AFCA had re-considered its jurisdiction, and whether or not Mr Edgecombe had made a request for a review and submitted information. I thought it was unfair that MetLife was not given any opportunity to make further submissions in relation to AFCA's jurisdictional decision.

…

… in relation to the phone call I received from Mandy Van Der Poel of AFCA on 26 February 2019. I recall that during this conversation, Ms Van Der Poel said to me with words to the effect of:

'the Rules allows AFCA to consider the complaint, so we can do it'.

On the basis of the letter received from AFCA on 12 February 2020 and my telephone discussion with Ms Van Der Poel on 26 February 2019, I understood that AFCA had made a decision to exercise jurisdiction to deal with Mr Edgecombe's complaints even though MetLife did not agree that AFCA had such jurisdiction.

118    Ms Van Der Poel did not give evidence. AFCA produced a file note of the telephone conversation with Ms Grygiel made on 26 February 2019. It said:

Asked if she wanted to add any further info because Andrew will be determining both cases at the same time.

She said she'll send in the new pol doc but that was all.

She is happy that both cases will be reviewed together.

119    On 27 February 2019, Ms Grygiel sent an email to AFCA in the following terms:

Thank you for your call yesterday.

Metlife would be open to combining the two complaints by Mr Edgecombe. While we do not think any additional documentary evidence would be required, Metlife would like to put on a short submission about the latter complaint due to differences in the policy,

Would AFCA be open to allowing us 14 days to do this?

120    On 4 March 2019, AFCA sent an email to Ms Grygiel in response stating that Metlife had 14 days in which to make a submission. Metlife then provided a detailed submission dealing with the merits of the 2018 Complaints that had been made by Mr Edgecombe. Metlife had dealt with the 2017 Complaint by an earlier submission. The submission concerning the 2018 Complaint did not maintain any objection to the authority of AFCA to deal with the 2018 Complaint. It commenced as follows:

We refer to AFCA's letter dated 18 March 2019 confirming that this complaint will be considered at a meeting of the panel on 27 March 2019. MetLife takes this opportunity to provide the following submissions.

121    The submission included the following:

As a general observation, the member's submissions fail to have regard to the contractual terms and the relevant legal principles for reviewing MetLife's decision to decline the member's claims under the Policies.

MetLife's decision was first advised to the Fund on 20 August 2015 and subsequently, following submissions from the member and requests for reconsideration from the Fund, on 3 November 2015, 21 March 2016, 12 December 2016 and 2 March 2017. The Fund has, at all times, agreed with MetLife's decisions to decline the claims.

The AFCA Operation Guidelines require that when deciding a dispute, an AFCA Decision Maker must not do anything that would be contrary to law and the terms of the relevant insurance contracts.

122    After that, Mr Edgecombe provided a submission and AFCA afforded Metlife an opportunity to respond to that submission. In its brief response, Metlife made no reference to any issue with the jurisdiction of AFCA in respect of the 2018 Complaint.

123    On 12 April 2019, AFCA determined the two complaints. It stated that the 2017 Complaint must be determined under the terms of reference for the Ombudsman Service and that the 2018 Complaint must be determined under the AFCA Rules. References to certain of the AFCA Rules were set out in AFCA's reasons for decision. It described AFCA as having commenced managing disputes previously lodged with the Ombudsman Service.

124    On 15 April 2019, Mr Edgecombe advised AFCA that he accepted the determination.

125    On the basis of the above evidence I find that the conduct of all three parties throughout the process concerning the 2018 Complaint was undertaken on the basis that AFCA was conducting a determination pursuant to the AFCA Scheme which applied to Metlife as a member and not some other process. Therefore, irrespective of any issue as to whether Metlife acquiesced in the making of such a determination or behaved in a way that gave rise to some form of estoppel which prevents it from disputing the authority of AFCA to determine the 2018 Complaint (being matters which do not fall for determination by these reasons), there is no basis upon which to infer from the conduct of the parties that they formed some type of ad hoc agreement by which they agreed to be bound by the AFCA Rules even though the complaint (on the assumption that Metlife's construction is correct) could not be made under the AFCA Scheme by operation of s 1053(1). All the dealings of the parties were undertaken on the basis that they were giving effect to the AFCA Rules under the AFCA Scheme. There was no evidence of a consensus to the effect that a decision would be made outside the AFCA Scheme by reference to the AFCA Rules even though they were not applicable between the parties. Nor is there evidence from which it may be inferred that the parties agreed by conduct that the 2018 Complaint would be determined on the basis of the AFCA Rules even if the AFCA Scheme did not apply to the 2018 Complaint (because it was a superannuation complaint of a kind that could not be considered under the AFCA Scheme). Therefore, AFCA acquired no further authority than that conferred by the AFCA Scheme to determine the 2018 Complaint.

Issue (3): Was there a novation of the agreement to allow AFCA to deal with the 2017 Complaint as alleged by AFCA?

126    The circumstances concerning the 2017 Complaint are different to those that pertained in relation to the 2018 Complaint. There is no issue between the parties that the complaint was properly brought under the terms of reference that applied to complaints made to the Ombudsman Service. Further, there is no issue concerning the determination of the 2017 Complaint by reference to those terms of reference. The issue is whether AFCA rather than the Ombudsman Service could determine the claim on the basis that there had been a novation of the relevant agreement. Further, as has been noted, the issue arises solely on the cross-claim brought by AFCA.

127    Notwithstanding the description in the reasons provided by AFCA for the determination to the effect that AFCA was 'managing' the disputes previously lodged with the Ombudsman Service, the cross-claim alleges that there was a novation of an agreement between Metlife, Mr Edgecombe and the Ombudsman Service by which those parties and AFCA agreed that AFCA would make the determination. There is no dispute that a novation agreement could arise by conduct.

128    I will shortly come to a consideration of the evidence and my findings. However, it is to be noted that the evidence is to be considered in a context where Metlife was required at all times to have in place an external dispute resolution scheme of the kind that has been described. After the commencement of the AFCA Scheme that requirement was to be met by being a member of the AFCA Scheme. However, in respect of complaints before the approval and commencement of the operation of the AFCA Scheme, Metlife's membership of the Ombudsman Service and the ongoing determination of claims made to the Ombudsman Service was part of the means by which it satisfied that obligation to have an external dispute resolution scheme in place.

129    My findings as to the matters relevant to the novation claim that are established by the evidence are as follows:

(1)    By the beginning of March 2018, Australian Financial Complaints Limited (AFCL) had been established to operate the AFCA Scheme.

(2)    AFCL later changed its name to the Australian Financial Complaints Authority Limited and hence AFCL and AFCA are the same entity.

(3)    On 2 March 2018, ASIC approved the Ombudsman Scheme that had been operated up until that point by FOSL as a scheme for the purposes of the relevant provisions of the Corporations Act with AFCL as its operator.

(4)    As part of the establishment of the AFCA Scheme, the assets of and staff of the Ombudsman Service were to be transferred to AFCL.

(5)    On 5 March 2018, AFCL and the FOSL entered into a deed, styled as a Restructure and Transition Deed (Deed).

(6)    The Deed required the FOSL to undertake certain transition steps including the distribution of a membership pack to each of its members pursuant to which its members would agree to cease membership with FOSL, agree to become members of AFCL and be issued with a notice to convene a meeting to approve amendments to the constitution for FOSL.

(7)    On 6 March 2018, the relevant parts of the Corporations Act concerning the AFCA Scheme commenced however the AFCA Scheme was not approved until some time later.

(8)    On 29 March 2018, Metlife provided a declaration to FOSL which acknowledged and agreed to certain matters including:

(a)    Metlife applied for membership of AFCL 'and participation in the dispute resolution scheme operated by AFCL in accordance with the applicable Terms of Reference for the scheme operated by AFCL from time to time';

(b)    Metlife agreed to be bound by the constitution of AFCL;

(c)    AFCL will be the new operator of the Ombudsman Service and Metlife will continue to be bound by the terms of reference for that scheme;

(d)    a new AFCA Terms of Reference (known as the AFCA Rules) will be circulated to members for consultation ahead of commencement of the AFCA Scheme in due course;

(e)    Metlife 'agrees to be bound by the applicable Terms of Reference for the scheme operated by AFCL (and in due course, AFCA) from time to time'; and

(f)    Metlife would cease to be a member of FOSL on a date to be agreed between FOSL and AFCL.

(9)    On 1 November 2018, AFCA commenced operating the AFCA Scheme.

(10)    The contents of the 2018 Complaint lodged by Mr Edgecombe show that by then he was proceeding on the basis that the 2017 Complaint was being dealt with by AFCA pursuant to the terms of reference for the Ombudsman Service.

(11)    The submission dated 21 November 2018 to AFCA in respect of his 2017 Complaint (which was provided by AFCA to Metlife and to which Metlife responded) refers to his complaint having been made to the Ombudsman Scheme 'and now AFCA' and is addressed to the case manager of 'FOS/Australian Financial Complaints Authority'.

(12)    Emails sent by AFCA to Metlife and Mr Edgecombe in 2019 contained the following note:

The Australian Financial Complaints Authority (AFCA) has replaced the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman Service (CIO) and the Superannuation Complaints Tribunal.

This means AFCA will now manage any open complaints previously lodged with FOS and CIO, and will deal with all new complaints received.

Any communications regarding your FOS or CIO complaint will be sent to you on AFCA letterhead.

130    Under both the dispute resolution scheme provided by the Ombudsman Service and the AFCA Scheme there is no process by which the member of the scheme, the operator of the scheme and the complainant expressly agrees that the particular complaint may be determined under the scheme. Rather, as a condition of its statutory licence, each member of the scheme agrees to submit to the process provided for by the scheme if a complaint is made to the operator of the scheme that is of a kind that falls within the ambit of the scheme. In effect there is a standing offer by members of the scheme to parties who make complaints that if and when a complaint is made it will be dealt with in accordance with the scheme. In consequence, if and when a complaint that falls within the ambit of the scheme is made, an agreement arises by that conduct as between the three parties to give effect to the scheme in order to seek to resolve the dispute.

131    Whether there has been conduct that is effective to bring about a novation of such an agreement must be evaluated having regard to the nature of the process by which agreements are formed to submit complaints to determination under the scheme as well as the fact that Metlife must have such a process in place in order to meet its statutory obligations.

132    In the present case, it is clear that Metlife, FOSL and AFCL agreed to novate. They did so by the terms of the Deed and the declaration provided by Metlife in accordance with the provisions of the Deed. Thereafter, Mr Edgecombe participated in dealings with AFCA on the basis that it had carriage of the 2017 Dispute. In effect, at that point he submitted his existing complaint to determination by AFCA rather than FOSL. In doing so he followed the same type of step that would have brought about an agreement to resolve the dispute on the terms of the scheme by submitting an initial complaint. Therefore, he did what was needed to form an agreement under the arrangements for the Ombudsman scheme then. Once the determination of that complaint was made by AFCA he accepted that determination. If at any stage in that sequence of events, Metlife had maintained that there had been no novation then it would have been in breach of its statutory licence.

133    In all the circumstances, there was a novation of the agreement by which the 2017 Complaint was submitted to external dispute resolution under the terms of reference for the Ombudsman Service such that AFCA became the party who was to make the determination for the purposes of the scheme. It did so and the determination was accepted by Mr Edgecombe.

Issue (4): If no to Issue (3), was there an ad hoc agreement by which AFCA was to determine the 2017 Complaint?

134    By reason of the conclusion in relation to Issue (3), Issue (4) does not arise. However, the case advanced by AFCA concerning the alleged ad hoc agreement would face the same problems that were addressed in dealing with Issue (2).

Issue (5): Was it inappropriate for AFCA to undertake the role that it did in the proceedings having regard to its status as the independent decision maker under the AFCA Scheme, in respect of which the holder of a financial services licence under the Corporations Act must be member and if so what, if any, significance does that conclusion have for the result?

135    As has been explained, AFCA is an independent decision maker. Members of AFCA agree to submit complaints made within the terms of the scheme to AFCA for determination. However, the authority of AFCA is not confined to that which is conferred by the agreement of members. AFCA also has certain statutory authority that is conferred in respect of superannuation complaints. Therefore, in cases where AFCA deals with superannuation complaints, issues will arise as to the character of the AFCA decision. However, it is not necessary to consider those issues because in the present case, for reasons that have been given, the determination of the 2017 Complaint and the 2018 Complaint did not involve the exercise of any such authority. Rather, AFCA exercised consensual authority. Having said that, it must be noted that in Investors Exchange Ltd v Australian Financial Complaints Authority Ltd [2020] QSC 74 at [24]-[27], AFCA was described as not a public body and its power to make a determination was described as being derived solely from the parties' contract. On that basis, the obiter view was expressed that its determinations are not susceptible to review on administrative law grounds. It may be noted that these conclusions were reached without regard to whether there is significance in the fact that, for reasons that have been given, aspects of the authority exercised by AFCA in dealing with superannuation complaints, are derived from statute.

136    In those instances where curial proceedings are brought that arise out tribunal proceedings, it is well established that there are limits upon the role that is appropriate for the tribunal to take in those proceedings. The principles were summarised by Brennan J in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681-682 in the following terms:

Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it (Reg. v. Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, at pp 35-36). But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf. Corporate Affairs Commission v. Bradley (1974) 1 NSWLR 391) and neither a law officer nor a public official is heard by the court (cf. Reg. v. Cook; Ex parte Twigg (1980) 147 CLR 15), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here, the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs. Therefore I would make an order awarding the applicant his costs against the Tribunal both here and in the Supreme Court.

137    In R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, it was held that a tribunal or statutory decision-maker entrusted with the responsibility of making an independent decision to determine a dispute between parties should confine its role in the proceedings to the making of submissions addressing the powers and procedures of the tribunal or decision-maker: at 36. See also the further consideration of the principles in Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300 at [76]-[82].

138    The Hardiman principle is 'not restricted in its application to proceedings which arise out of administrative decisions': TXU Electricity Ltd v The Office of the Regulator-General [2001] VSC 4; (2001) 3 VR 93 at [21]. It applies to an independent statutory decision-maker appointed to arbitrate a dispute in order to give effect to the requirements of a statutory scheme where the decision operates as an adjudication to quell the dispute: Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal [2020] FCAFC 145; (2020) 280 FCR 194 at [298]-[311], noting what was said by the High Court on appeal in Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39 at [8]. It also applies to a court appointed referee: Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (1991) 24 NSWLR 513 at 517; and Najjar v Haines (1991) 25 NSWLR 224 at 247-248. On that basis, in Najjar v Haines, Clarke JA expressed reservations about whether an arbitrator should be encouraged to participate in the court proceedings, including in the defence of curial proceedings concerning the alleged misconduct of the arbitrator: at 248, see also views to the same effect expressed by Pagone J in Aylett v Peter Rowland Catering Pty Ltd [2008] VSC 467 at [18] stating that it 'is fundamental to the confidence of the parties to an arbitration that the arbitrator should maintain independence and impartiality and should at all times be seen to be doing so'.

139    Different considerations may apply where the natural contradictor elects to file a submitting appearance (as occurred in the present case): see Freedom Pharmaceutical Pty Ltd v Minister for Health (No 2) [2021] FCA 1250 at [8] (Burley J); Ogawa v Australian Information Commissioner [2014] FCA 229 at [24] (Greenwood J); and Pearlman v WA A/Information Commissioner [2019] WASC 257 (S) at [13] (Smith J).

140    The concern behind the Hardiman principle is the risk to impartiality that arises where a decision-maker is actively involved in defending (or as occurred in the present case, seeking to enforce) the decision-maker's own determination. That concern arises where there is a prospect of remitter. However, it also arises where the decision-maker has an ongoing role in respect of dealings concerning one or more of the parties: see Huon Aquaculture Group Limited v Minister for the Environment (No 2) [2018] FCA 1938 at [50]. In the present case, AFCA may be expected to have an ongoing role in respect of complaints that involve its members, particularly Metlife. The stance adopted by AFCA in taking steps to enforce its own determination gives rise to such risks even accepting that there is no prospect of remitter to AFCA in the present case.

141    Submissions were made by AFCA to the effect that it was part of its responsibility under the AFCA Scheme to ensure that its determinations were complied with by members of the scheme. It relied, in particular, upon the terms of s 1052 which provides that 'AFCA must ensure that the mandatory requirements for the AFCA scheme under section 1051 are complied with'. The mandatory requirements include an operational requirement that 'reasonable steps are taken to ensure compliance by members of the scheme with those determinations' (s 1051(4)(d)) and that determinations under the scheme are binding on members (s 1051(4)(e)).

142    However, s 1052E(1) provides that if AFCA becomes aware, in connection with a complaint under the AFCA Scheme that 'a party to the complaint may have refused or failed to give effect to a determination made by AFCA' then AFCA must give particulars of the failure to one or more of APRA, ASIC or the Commissioner of Taxation. Further, there are detailed provisions in the Corporations Act which confer upon ASIC the role of supervisor of compliance with the AFCA Scheme and authorise ASIC to make directions to AFCA as to how to conduct the scheme and to make changes to the scheme.

143    It is ASIC that supervises the conduct of financial services licensees and their compliance with the Corporations Act.

144    Therefore, issues arise as to the extent to which it is the role of a successful complainant or of ASIC rather than AFCA to go so far as to take proceedings that may be required to enforce compliance with a determination made by AFCA.

145    AFCA submitted that both it and FOSL had sought specific enforcement of determinations in favour of complainants in other proceedings citing Investors Exchange v Australian Financial Complaints Authority at [100]-[106]; Financial Ombudsman Services Ltd v Utopia Financial Services Pty Ltd [2016] WASC 55 at [70]-[71]; Patersons Securities Ltd v Financial Ombudsman Service Ltd [2015] WASC 321 at [168]-[169]; and Utopia Financial Services Pty Ltd v Financial Ombudsman Service Ltd [2012] WASC 279 at [55]-[56]. However, those authorities did not specifically consider the question whether that course was appropriate given the nature of the legislative scheme.

146    Metlife did not suggest that the issue went to any matter other than the appropriate costs order. In those circumstances, I consider it appropriate to defer any further consideration of the matters raised by Issue (5) until any submissions are advanced concerning the relevance of the role adopted by AFCA in these proceedings for costs orders. Depending upon the nature of those submissions it may be appropriate for notice to be given to ASIC.

Conclusion

147    For reasons that have been given, on the separate question as to whether AFCA had authority to make the determination dealing with the 2017 Complaint and the 2018 Complaint, the answer is that AFCA had such authority. An answer in those terms follows from the reasons given as to Issue (1) and Issue (3) and the concessions by Metlife to the effect that upon such determinations being made, AFCA succeeds on its cross-claim. It follows that there should be orders dismissing the claim by Metlife and allowing the cross-claim by AFCA. The question of any further orders that may be made should be the subject of minutes of proposed orders to be provided by the parties and provision for a further case management hearing in the event that those orders are not agreed.

Associate:

Dated:    27 January 2022