Federal Court of Australia

Henschke v Australian Retirement Trust [2026] FCA 80

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to file an appeal be dismissed.

2.    The Applicant pay the Respondents costs of the proceedings to be fixed in an amount determined by a Registrar on a lump sum basis, in accordance with GPN-Costs, if not agreed.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    On 28 February 2025, the Applicant, Mr Henschke (acting for himself) filed an application for an extension of time to file an appeal in this Court (EOT Application). The EOT Application sought an extension pursuant to r 33.13 of the Federal Court Rules 2011 (Cth) (FCR) to commence an appeal under s 174 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The Australian Retirement Trust was named as the only Respondent. Australian Retirement Trust Pty Ltd as the trustee appeared (Respondent).

2    The draft notice of appeal seeks to appeal against the determination made by the Australian Financial Complaints Authority Limited (AFCA) made on 16 January 2025 (Determination). The AFCA was reviewing a decision of the Respondent which had decided that although the Applicant held various member accounts (described as the First Account, the Second Account and the Third Account) at various times, the Applicant did not have and does not have any insurance coverage. Therefore, the Respondent decided that the Applicant could not make a claim on any alleged insurance benefits by way of either income protection insurance (IP) and/or total permanent disability insurance (TPD). The Determination affirmed the Respondent’s decision that the Applicant cannot make a claim for insurance benefits as he did not and does not have any insurance coverage through the First Account, the Second Account or the Third Account.

3    The Applicant seeks for the Determination to be set aside and for the Court to make a declaration that the Applicant was covered by both IP and TPD insurance through one of his member accounts (primarily his Second Account) with the Respondent. Consequential orders regarding payment under those insurance policies to be made, together with interest and costs, are also sought.

4    On 14 July 2025, the AFCA was joined as the Second Respondent. The AFCA was a necessary party, as the Applicant’s proposed appeal was one in relation to the Determination. The AFCA filed a submitting appearance.

5    At the hearing, the Applicant’s arguments were refined and developed, such that it became necessary for the active parties to provide supplementary submissions regarding the dangerous occupation exception which the Applicant submitted applied to him as a logging truck driver, which he submitted was not properly considered by the AFCA. The Applicant submits that the Trustee was aware of the Applicant’s occupation and should have ensured that the application of s 68AAF of the Superannuation Industry (Supervision) Act 1993 (Cth) (SISA), including the insurance protection, was applied to the Applicant.

6    The Applicant effectively abandoned his contentions regarding the First Account and Third Account, submitting those matters were irrelevant. The Applicant focused his submissions on the Second Account submitting he had not “opted-out” of the automatic death and TPD insurance cover and “opted-in” to the IP insurance coverage, because the Second Account was created by his completion and submission of an application form on or about 1 May 2021 (May Form).

7    In relation to the EOT Application, the Respondent submitted that although the Applicant had provided a sufficient explanation for his failure to commence the proceedings within time and that there was no prejudice to the Respondent, the extension of time should not be granted because of the lack of merit in the proposed appeal. The Respondent submitted that there was no error of law in relation to the finding that the Applicant did not and does not have insurance coverage on his Second Account.

8    For the following reasons, the EOT Application must be dismissed due to the lack of the underlying merit in the appeal. No error of law in the Determination has been sufficiently established.

BACKGROUND

9    Sunsuper Pty Ltd (Sunsuper) as trustee of the Sunsuper Superannuation Fund (Sunsuper Fund) and QSuper Board (QSB) as trustee of QSuper agreed to a merger into a single superannuation fund on and from 28 February 2022 (Merger).

10    From the date of the Merger, Sunsuper Fund member benefits and assets were merged into QSuper and QSB resigned as trustee of QSuper and appointed Sunsuper as the trustee of QSuper. QSuper was renamed Australian Retirement Trust and Sunsuper was renamed the Australian Retirement Trust Pty Ltd.

11    On 27 April 2020, the Sunsuper Fund received a payment from the Applicant’s then employer which created the First Account. The balance of the First Account as at 30 June 2020 was $174.92. On compassionate grounds, the Applicant withdrew from the First Account the amount of $177.35 on 16 July 2020. The Applicant closed the First Account on 29 January 2021, having the balance of $31.86 then rolled out.

12    There was no insurance coverage attached to the First Account, nor were there any premiums deducted for any insurance, from the First Account.

13    It was in issue how the Second Account, ending 9029, was established. Given that controversy, it is sufficient at this stage to recognise that it was either established on 30 June 2021, when the Sunsuper Fund received a payment from the Applicant’s then employer which created the Second Account. Alternatively, the Second Account was established by the Applicant completing and submitting the May Form to the Respondent. The Applicant contended that in the May Form he “opted-in” to TPD coverage.

14    On 28 February 2022, the Second Account was transferred, by the Merger, to the Respondent. The Applicant closed the Second Account on 9 May 2022 and rolled out the account balance of $706.57 to another superannuation fund.

15    On 10 August 2023, the Applicant submitted a membership application form to the Respondent for the establishment of the Third Account. The Third Account has and had a nil balance.

16    The Applicant says he suffered an illness on or about 23 July 2021. It is this illness which the Applicant relies on in relation to making a claim on the IP insurance or the TPD insurance, which the Applicant submits was attached to one of his member accounts with the Respondent.

17    Given the date of this alleged illness, and as was accepted by the Applicant, the First Account is irrelevant, having been closed prior to the date of the claimed illness. Further, the Third Account is also irrelevant, being opened after the date of the claimed illness. As such, it is only necessary to consider the arguments regarding the Second Account.

RELEVANT LEGAL PRINCIPLES

Appeals to the Federal Court

18    Pursuant to s 1057(1) of the Corporations Act 2001 (Cth) (Act), a party to a superannuation complaint may appeal to the Federal Court of Australia on a question of law from the AFCA’s determination. That appeal must be instituted within 28 days of the AFCA’s determination being given to the person seeking to appeal: s 1057(2) of the Act. The focus of the appeal is on whether or not the AFCA erred on a question(s) of law: Nottingham v Australian Financial Complaints Authority [2023] FCA 58 at [29] (Burley J). This power is substantially the same as those applicable to the hearing and determination of an appeal from the previous Administrative Appeals Tribunal, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), now s 172 of the ART Act: Wan v BT Funds Management Ltd (2022) 22 ASTLR 449; [2022] FCAFC 189 at [24] (McEvoy J with whom Markovic and McElwaine JJ agreed). As such, the principles as enunciated by the Full Court in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Allsop CJ, Kenny, Besanko, Roberston and Mortimer JJ,) generally, and particularly at [62] are applicable. Further, from Haritos, the question of law is to be approached as a matter of substance, not form: Haritos at [62(6)] and [94].

19    This is different to the power conferred by s 1055 of the Act on the AFCA to set aside or vary a decision of a trustee. The determining factor for the AFCA in making its decision, is its fairness or reasonableness: QSuper Board v Australian Financial Complaints Authority Ltd (2020) 276 FCR 97; [2020] FCAFC 55 at [64] (Moshinsky, Bromwich and Derrington JJ).

Extension of Time

20    The usual principles in relation to whether an extension of time should be granted apply. Those being from Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186 at 348-349 (Wilcox J) Parker v R [2002] FCAFC 133 at [6] (Spender, O’Loughlin and Dowsett JJ) and Porter as former trustee of the estates of Ghasemi and Kakhsaz v Ghasemi (2021) 286 FCR 556; [2021] FCAFC 144 at [40] (Allsop CJ, Markovic, Derrington, Colvin and Anastassiou JJ). These principles provide non-exhaustive factors that may be relevant to an extension of time: Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [13] (Kiefel CJ, Gageler, Keane and Gleeson JJ). The Court must be satisfied that the extension of time is needed in the interests of the administration of justice: Katoa at [12]. The relevant factors for consideration are generally regarded as being the following:

(a)    the extent of the delay;

(b)    the explanation for the delay;

(c)    any prejudice to the respondent, but the mere absence of prejudice is, however, not sufficient to grant the extension;

(d)    matters of fairness as between the applicant and other persons in a like position; and

(e)    the merits of the substantive application.

THE DETERMINATION

21    The AFCA considered the Applicant’s claims that he had insurance benefits with the Respondent in the nature of the IP insurance and TPD insurance as at 23 July 2021, the date of the claimed illness. The Applicant claimed that the IP and TPD benefits of between $100,001 and $200,000 should be paid to him.

22    The Respondent submitted that the Applicant did not hold any insurance benefits by way of his First Account, Second Account or Third Account.

23    The Respondent decided, due to the lack of insurance benefits held on any of the Applicant’s accounts, that he could not make a claim for insured benefits. The AFCA was reviewing this decision of the Respondent.

24    The AFCA decided that the Applicant did not have any insurance coverage through his First Account or his Third Account. As such, the AFCA decided that the Applicant could not make a claim for insured benefits. Further, in relation to the First Account, the AFCA stated that there was no evidence before it that the dangerous occupation exception under s 68AAF in the SISA applied to the Applicant’s circumstances.

25    The AFCA also decided that the Respondent’s decision was fair and reasonable as neither the First Account or the Second Account reached the required balance of $6,000 for the automatic standard death and TPD coverage to apply. Further in relation to the date of the claimed illness on 23 July 2021, it arose after the First Account was closed and prior to the Third Account being opened.

26    The Third Account always had a zero balance, such that the Applicant was not entitled to TPD or IP insurance through that account, even though the Applicant had sought to opt-in to insurance coverage.

27    Relevantly, the AFCA also decided that the Applicant did not have any insurance coverage through the Second Account. This was because the AFCA did not accept that the Applicant established the Second Account by completion and submission of the May Form. The AFCA decided that the Second Account was established by the Applicant’s then employer making a superannuation contribution on 30 June 2021. The Second Account was closed on 9 May 2022 and the balance of $706.57 was rolled out by the Applicant.

28    The AFCA also considered that the lack of insurance on either the First Account, the Second Account or the Third Account did not breach superannuation law.

29    Prior to making the Determination the AFCA also provided the Applicant with its Recommendation on 20 June 2024 and invited the Applicant to respond. The Recommendation outlined the details of the Applicant’s complaint, the issue that the AFCA considered and the reasons for its recommendation.

APPLICANT’S SUBMISSIONS

30    In the Applicant’s draft notice of appeal, he advances the following:

7.    Did AFCA err in law by finding that the Applicant did not have insurance cover through his accounts with Sunsuper/ART [being the Respondent]?

8.    Did AFCA err in law by finding that the Trustee’s decision was fair and reasonable?

9.    Did AFCA err in finding that the Applicant did not submit the Second Account Application and therefore lacked both IP and TPD insurance?

10.    Did AFCA err in not finding that ART breached its duty of care to the Applicant by failing to properly process and record the Applicant's Second Account Application, failing to send a welcome pack to the Applicant after the account was opened, maintaining inadequate and unreliable record-keeping practices, providing inconsistent and misleading information to AFCA and the Applicant, failing to provide the Applicant with automatic Death and TPD cover as advertised by Sunsuper, and failing to conduct a thorough, diligent, and transparent search for the Applicant's application and related documentation?

11.    Did AFCA err in not finding that ART engaged in misleading and deceptive conduct in contravention of the Australian Securities and Investments Commission Act 2001 (Cth) and/or the Competition and Consumer Act 2010 (Cth) by representing that it acts in the best interests of its members while failing to properly process and record the Applicant's application and failing to provide the advertised automatic cover, making unsubstantiated assertions regarding the non-receipt of the Applicant's application, despite evidence to the contrary, providing inconsistent and misleading information to AFCA and the Applicant regarding account activity, application processing, and the conduct of their search for unallocated documents, and advertising automatic Death and TPD cover to eligible members while subsequently denying such cover to the Applicant, who met the advertised eligibility criteria?

31    The Applicant also seeks certain findings of fact to be made by the Court. However, the preferrable course, if any of the Applicant’s arguments as to the questions of law were to be successful, would be to remit the matter to the AFCA for further consideration, according to law, to make any necessary further findings of fact.

32    There is another version of a “Notice of appeal from a tribunal” annexed to the Applicant’s first Affidavit. However, the Applicant clarified at the hearing which version he relied on, and it is that which identifies those matters, said to be questions of law, outlined above.

33    The Applicant effectively advanced six arguments, in support of the questions of law in his draft notice of appeal and the additional issue regarding the dangerous occupation exception.

34    First, the Applicant submitted that the Determination contained a fundamental error of law because it is based on the wrong evidence. This was on the basis that the AFCA compared the May Form, which the Applicant submitted he completed and provided to the Respondent, to the wrong Product Disclosure Statement (PDS) Document from 2021. The May Form was from the 2019 “Sunsuper for life PDS”, which if considered, the Applicant submitted the decision of the AFCA may have been different.

35    The AFCA considered the photographed version of the May Form which the Applicant relied on. The AFCA observed that the May Form showed that the Applicant:

(a)    specified his employer’s trading name;

(b)    did not opt-out of automatic death and TPD insurance cover; and

(c)    opted-in to IP cover (and provided his annual income for that purpose).

36    The AFCA then observed that there was a discrepancy between the May Form and the two PDS documents provided to it, being dated 1 January 2021 and 1 July 2021. The AFCA explained the differences and decided that the May Form did not match either of the application forms from either of the 2021 PDS documents. Further, the AFCA observed that the Applicant was unable to provide any contemporaneous evidence establishing that he submitted the May Form on or about 1 May 2021.

37    In the Determination the AFCA did not consider whether the May Form was in accordance with the 2019 PDS document. However, in the Recommendation the AFCA made express reference to the May Form being that of the former Trustee’s PDS before the Merger, dated 1 July 2019. As such, it is evident that the AFCA was aware that the May Form was completed on a 2019 PDS document. This is sufficient to deal with the first ground of the draft notice of appeal. The AFCA did not err by failing to consider the May Form and whether it was completed on the 2019 PDS application form. From the Recommendation it is evident that the AFCA did consider that matter. That the issue did not expressly form part of the Determination means that the AFCA did not regard that as material. Irrespective of which version of the form was alleged to have been completed and submitted, the AFCA considered the basis upon which the Second Account was established, which included whether the May Form was actually received.

38    The AFCA also recorded the former Trustee’s position that it did not receive any insurance opt-in forms from the Applicant. There was also no evidence of any premiums being paid or any supporting documents referencing any insurance policy. The Recommendation recorded the following:

After reviewing the account statements and the contributions, I am satisfied the trustee has provided records confirming that insurance was not required to start under PMIF, and it has no record of receiving any insurance opt-in request for insurance to start earlier.

39    The Applicant was invited to respond to the whole of the Recommendation. The Applicant does not advance a ground that he was denied procedural fairness in relation to the AFCA’s consideration of the May Form.

40    The AFCA decided that the Applicant did not submit the May Form. As such, the Applicant could not have opted-in to the IP insurance cover. As a separate ground in the draft notice of appeal, the Applicant also advances that the AFCA erred in finding that the Applicant did not submit the Second Account Application, being the May Form.

41    However, no additional or separate arguments were made by the Applicant as to what was alleged to be the error of law, in relation to this finding of the AFCA. For the reasons given by the AFCA, the factual finding was open. This finding is also sufficient to deal with this first alleged error because any failure to consider whether the May Form was in accordance with the 2019 PDS document would not have been material, in light of the finding that the May Form was not received and did not establish the Second Account. Material is here used in the sense of the ‘threshold of materiality’, that the matter must be such that there is a realistic possibility that it could affect the decision made, not that such possibility is fanciful or improbable: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). As the AFCA decided that the May Form was not received and was not the process by which the Second Account was established, there is not a realistic possibility that even if the AFCA had considered whether the May Form was in the form of the 2019 PDS document, that this could have affected the Determination.

42    The Applicant was afforded an opportunity to be heard regarding the submission of the May Form. The AFCA observed that the Applicant was unable to provide any contemporaneous documents supporting his submission of the May Form. Furthermore, the Applicant stated in response to the question “Are you able to provide AFCA with any information and supporting documentation about how and when Mr Henscke provided this form to the trustee?”, that:

It would have been uploaded via the sunsuper.com.au/contactus Portal or send via REPLY PAID as it says on the bottom of the 2nd page OR REPLY PAID 2924 Brisbane QLD 4001.

(emphasis in original)

43    Moreover, in the Recommendation, to which the Applicant was invited to respond, the AFCA observed that the Applicant relied on the May Form, which was emailed on 16 May 2024. Relevantly, in the Recommendation it was stated that even on the basis of the May Form, due to legislative changes, the Applicant needed to opt-in for early insurance coverage. There was no evidence of any such early opt-in.

44    Finally, in relation to this first ground, the Applicant also submitted that his employer made a superannuation contribution to his new member number on 19 May 2021 of $147.76. The Applicant submitted that this was supported by his payslips. This, it was initially submitted, would not have been possible if the account was not established until 30 June 2021. Ultimately this submission was not pressed. This was the correct way to proceed as not only were the payslips not before the AFCA (or this Court) but the documents relied upon by the Applicant stated that the payment date was 30 June 2021, which related to the May 2021 period. That is consistent with the AFCA’s finding that the Second Account was established by the contribution of the Applicant’s employer on 30 June 2021 and does not support the contention that a payment by his employer was made on 19 May 2021 to the Second Account.

45    The first ground, being the main argument advanced by the Applicant, fails to establish an error by way of a question of law in the Determination of the AFCA.

46    The second ground was that the AFCA failed to properly consider the advertised automatic cover as against the default rules, where the advertising created a legitimate expectation. The advertising relied on was submitted to not contain any reference or requirement to a minimum account balance for the automatic insurance coverage.

47    The concept of “legitimate expectation” is unhelpful and generally unnecessary: Minister for Immigration v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [30] (Kiefel, Bell and Keane JJ). The concept of legitimate expectation may distract from the real issue. It is unnecessary because generally arguments involving a legitimate expectation involve matters of procedural fairness. What will be necessary to consider is what was required to ensure that the decision is made fairly in the particular circumstances, including the statutory context.

48    The specific advertising was not referred to by the Applicant and the phrase relied upon (‘automatic Death and TPD insurance cover’) did not appear in the 2019 or 2021 PDS documents. A somewhat similar phrase was provided in all of the PDS documents (the January 2021 version is set out below).

49    Relevantly the January 2021 PDS document stated, as follows, including the two paragraphs under the heading “Insurance cover and options”:

8.    Insurance in your super

Australian Government reforms restrict when super funds can provide automatic insurance cover to members, to help protect members' retirement savings from being eaten away by premiums for insurance cover they may not want or need.

Under the Putting Members’ Interests First reforms, we generally cannot automatically provide insurance cover to new members before they attain age 25 or before their account balance reaches $6,000. These age and balance requirements are now a key component of the eligibility criteria for you to automatically receive Standard insurance cover.

However, you have the option to opt in to Standard insurance cover before you attain age 25 and before your balance reaches $6,000 (subject to you meeting the other eligibility criteria).

Insurance cover and options

Sunsuper provides access to flexible Death, Total & Permanent Disability and Income Protection insurance to keep you, or those close to you, protected if something unfortunate were to happen.

Eligible members automatically receive Standard Death and Total & Permanent Disability Assist cover, unless you have told us that you do not want this cover. The amount of cover you receive will depend on your age, and changes as you get older.

Death cover

Provides a lump sum benefit if you die or suffer a Terminal Illness.

Total & Permanent Disability Assist cover

May provide up to six support payments paid over a minimum of five years, where you are permanently unable to work due to sickness or injury. In limited circumstances Total & Permanent Disability Assist cover may be paid as a lump sum.

1    Participation in occupational rehabilitation may be a compulsory part of the claims process.

You’re eligible for automatic Standard Death and Total & Permanent Disability Assist cover in your Super-savings account if:

•    you are aged 25 to 69 (Total & Permanent Disability Assist cover is not available from age 67), and

•    your account balance has reached $6,000, and

•    you are ‘employed’ and we are receiving SG contributions for you.

You will not be eligible for automatic Standard Death and Total & Permanent Disability Assist cover in your Super-savings account if:

•    you are self-employed; or

•    you are not employed; or

•    you have previously received or been eligible to receive a Terminal Illness benefit, Total & Permanent Disability benefit or a benefit as a result of Permanent Incapacity or a Terminal Medical Condition, from Sunsuper or another fund or insurer.

Opt in to Standard cover sooner - You can opt in to Standard cover before you attain age 25, and before your balance reaches $6,000 (subject to you meeting the other eligibility criteria).

Special offers and features - Some members may also have other insurance offers made to them from time to time. Where your employer has arranged a transfer from another fund, insurance arrangements may be different from those shown here. You will be advised if this applies to you.

(emphasis in original)

50    The July 2021 PDS was in very similar terms, in relation to the information regarding automatic insurance cover and options. The absence of being able to rely on a concept of a legitimate expectation means that even if there was similar language used (to that asserted by the Applicant) it could not support an argument that there was an error of law due to the creation and reliance on a legitimate expectation.

51    Further, the passing of the Treasury Laws Amendment (Putting Members’ Interests First) Act 2019 (PMIF Act), which commenced on 3 October 2019, changed the position and inserted (amongst other matters) s 68AAB to the SISA. That provision relevantly provided that automatic insurance coverage is not to be provided if the member’s account had a balance which is less than $6,000. The Applicant accepted that none of his accounts ever had a balance of $6,000.

52    There was no error of law by the AFCA finding that there was no automatic insurance coverage for the Applicant, on any of his member accounts. The Applicant did not develop or advance a submission that he was denied procedural fairness (or any other error of law) in relation to this issue.

53    Furthermore, the Applicant did not otherwise demonstrate that the Determination by the AFCA that the Trustee’s decision was fair and reasonable, involved an error of law.

54    The second ground, as advanced by the Applicant, fails to establish an error by way of a question of law in the Determination of the AFCA.

55    The third and fourth ground will be considered together. The third ground is that the AFCA failed to give sufficient weight to the discrepancies and unreliability of the Respondent’s record keeping. Furthermore, the Applicant submits that the unreliability of the Respondent’s own system and records is proven by its own evidence. The Respondent relied on a screenshot of communication history as proof of their records being complete, however the welcome email relied on was not listed on that screenshot. That is, the Applicant submits that the Respondent’s records are incomplete.

56    The fourth ground is that the AFCA failed to consider the alleged breaches of duties, being a breach of a duty of care. This included that the Respondent was aware of the Applicant’s occupation given Cornwall Logging’s contributions and what is submitted to be a long-term partnership with Sunsuper. No arguments or evidence was advanced to support this alleged “long-term partnership”. Further and together with this, the Applicant submitted that the AFCA erred in failing to find that the Respondent had engaged in misleading and deceptive conduct.

57    In relation to the third and fourth arguments (numbered 10 and 11 from the draft notice of appeal) such matters are beyond the scope of what the AFCA was to determine. The AFCA was to review and consider whether the Trustee’s decision was fair and reasonable: s 1055 of the Act; Wan at [28] and QSuper at [64]-[65].

58    The third and fourth ground as advanced by the Applicant fails to establish an error by way of a question of law in the Determination of the AFCA.

59    The fifth ground is that the AFCA failed to consider the Applicant’s history of holding insurance, which would have supported the Applicant’s position and/or intent to hold insurance. Although it can be accepted that the AFCA failed to consider the Applicant’s history of holding insurance, such a matter would not be a relevant consideration. This seems to be based on some kind of similar fact evidence submission or a submission that because the Applicant had an intent to hold insurance that supported his submission that he did in fact submit the May Form. None of these arguments can be accepted and do not support an error of law.

60    The fifth ground, as advanced by the Applicant, fails to establish an error by way of a question of law in the Determination of the AFCA.

61    Sixth and finally, the Applicant submits that the AFCA erred by not finding that the Respondent had a positive duty to consider the dangerous occupation exception under the SISA. The Applicant submitted that the Respondent’s fundamental responsibility is to act in its members financial interests. Further, that the Respondent knew that the Applicant was in a dangerous occupation and this would affect the obligation on the Respondent, to act in the Applicant’s financial interest. As such, the Applicant argued that the AFCA erred in stating that there was “no evidence before me that the dangerous occupations exception…applied...” without investigating why the Respondent failed to apply that exception in the Applicant’s circumstances. This was also submitted by the Applicant to be a failure to investigate the Respondent’s negligence. Furthermore, the Applicant submits that the proper construction of s 68AAF is a question of law. The absence of consideration by AFCA of this provision, is submitted to be the relevant error.

62    On 9 August 2024, the Applicant submitted to AFCA that his case had nothing to do with the PMIF Act and that the dangerous occupation exception applied as he was a truck driver in the logging industry.

63    The AFCA found that:

There is no evidence before me that the dangerous occupations exception under section 68AAF in the SIS Act, applied in the [Applicant’s] circumstances.

64    Section 68AAF of the SISA relevantly provides:

Dangerous occupation exception

(1)    The dangerous occupation exception applies to a member of a regulated superannuation fund to, or in respect of, whom a benefit is provided by the fund under a choice product or MySuper product held by the member by taking out or maintaining insurance if:

(a)    the trustee or trustees of the fund make an election under this section that members holding that product will be covered by a dangerous occupation exception if they are employed in an occupation specified in the election; and

(b)     the election is in force; and

…

65    The section is applicable where a trustee, (the Respondent in this case) makes the relevant election under s 68AAF of the SISA that members of the relevant product type will be covered by a dangerous occupation exception and nominates applicable “dangerous occupations”. There was no evidence of any such relevant election of the Respondent before the AFCA. There is no error of law in relation to this aspect of the Determination. The review by AFCA was not to make such factual findings (or elections) but to determine whether the Trustee’s decision was fair and reasonable. Section 68AAF did not apply to the Applicant, as there was no evidence that the Respondent had made the election required under s 68AAF of the SISA.

66    This sixth argument, as advanced by the Applicant fails to establish an error by way of a question of law in the Determination of the AFCA.

CONCLUSION

67    There is no merit in any of the grounds sought to be advanced. As such, the application for an extension of time must be dismissed with costs.

Associate:    

Dated:    12 February 2026