Federal Court of Australia

Barron v Australian Financial Complaints Authority (Strike Out) [2026] FCA 673

ORDERS

THE COURT ORDERS THAT:

1.    The amended statement of claim lodged for filing on 20 February 2026 be struck out.

2.    By 26 June 2026, the applicant file and serve any interlocutory application seeking leave to file a further amended statement of claim consistent with the reasons for judgment published today.

3.    The matter be listed for case management on 3 July 2026.

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

REASONS FOR JUDGMENT

STEWART J:

Background

1    Glenn Richard Barron is a qualified motor mechanic. In 2009, aged 19, Mr Barron commenced employment in that capacity. In April 2010, Mr Barron was made redundant. He remained unemployed until he secured employment as an automotive mechanic with Palmer Ford, an automotive dealer in Cootamundra, NSW, in November 2011.

2    On 10 March 2017, Mr Barron resigned from Palmer Ford. He was then 26 years of age. He says his resignation was caused directly by the “onset and progressive deterioration of his mental health condition”, and that it “rendered him medically incapable of performing his essential duties”. The medical evidence details Mr Barron’s very difficult and traumatic backstory which explains his mental condition.

3    On 10 September 2018, Mr Barron consulted his general practitioner, Dr Imke Hinze. The clinical notes in a medical certificate of the same date states that Mr Barron had been diagnosed with anxiety and depression and was experiencing a range of psychiatric conditions including fatigue, anxiety, insomnia, loss of concentration and poor memory. Dr Hinze certified Mr Barron as unfit for work on and from this date until 10 December 2018 (but this was later extended indefinitely). Mr Barron has apparently not had employment since then. He told the Court that he lives out of his car in Cootamundra. He currently has no legal representation in the proceeding.

4    As an incident of his original employment, Mr Barron became a member of the Asgard Independence Plan – Division Two superannuation fund the trustee of which is BT Funds Management Ltd (BTFM). BTFM maintained salary continuance insurance (SCI) and total and permanent disability insurance (TPD) for members of the fund with, initially, Westpac Life Insurance Services Ltd. That insurer was subsequently acquired by TAL Life Insurance Services (TAL) which became the insurer of the SCI and TPD policies.

5    On 10 April 2019, Mr Barron lodged a claim under the SCI policy for a salary continuance insurance benefit. The claim was supported by, among other things, a medical certificate from Dr Hinze dated the same day. The clinical notes in that certificate state that Mr Barron was first diagnosed with depression and anxiety in 2009 which was exacerbated by bullying in his workplace in 2017.

6    On 6 November 2019, TAL issued a letter to BTFM declining Mr Barron’s claim for a salary continuance benefit under the SCI policy. Then, on 19 November 2019, BTFM issued a letter to Mr Barron affirming TAL’s decision to decline his claim.

7    On 16 June 2021, Mr Barron lodged a complaint with the Australian Financial Complaints Authority Ltd (AFCA) against BTFM concerning certain deductions that were made from his superannuation account. On 15 October 2021, Mr Barron lodged a complaint with AFCA against TAL concerning TAL’s decision to decline his claim for an SCI benefit. The two complaints were joined and dealt with together by AFCA.

8    On 27 November 2024, AFCA determined the complaint and affirmed the decisions of TAL and BTFM.

The proceeding

9    On 16 October 2025, Mr Barron commenced the present proceeding against AFCA, BTFM and TAL as first, second and third respondents respectively by filing an originating application and a statement of claim. Mr Barron was unrepresented in commencing the proceeding. It is fair to say that his originating documents bear the hallmarks of having been prepared by someone without legal training and with a firm belief in having been wronged.

10    On 24 November 2025, Mr Barron served (but did not file) an amended interlocutory application and a first amended statement of claim.

11    At the first case management hearing on 26 November 2025, the proceeding was adjourned to 12 December 2025 to enable Mr Barron to secure legal representation, in particular because his pleadings obviously required amendment. He was not successful in obtaining representation.

12    At the case management hearing on 12 December 2025, orders were made referring Mr Barron to a lawyer based in Canberra for pro bono legal assistance under Div 4.2 of the Federal Court Rules 2011 (Cth). The orders provided for Mr Barron to file and serve amended pleadings by 13 February 2026 and listed the proceeding for case management on 20 February 2026. A barrister and solicitors in Canberra accepted the referral, consulted with Mr Barron and gave him advice.

13    At the case management hearing on 20 February 2026, Mr Barron informed the Court that he had terminated the retainer of the lawyers to whom he had been referred. He did not accept their advice. He was once again unrepresented. Because of the termination of the retainer with the pro bono lawyers, Mr Barron had not yet filed amended pleadings but he was in a position to do so immediately. He was accordingly ordered to file and serve amended pleadings that day and the proceeding was listed for case management on 13 March 2026, the purpose being to enable the respondents to consider the amended pleading and what steps they then wished to take. Mr Barron lodged an amended statement of claim for filing on 20 February 2026.

14    At the case management hearing on 13 March 2026, orders were made that the respondents file and serve any interlocutory applications and supporting evidence to strike out the amended statement of claim and/or for summary dismissal by 27 March 2026 and any such applications were programmed for hearing on 20 May 2026.

15    Each respondent filed and served an interlocutory application seeking orders that the amended statement of claim be struck out in its entirety or in part. AFCA initially also sought an order in the alternative that the further amended statement of claim be treated as if it were a notice of appeal from a tribunal, but it subsequently abandoned that relief.

16    Mr Barron has not sought to amend his originating application, but it is accepted that once the statement of claim (in whichever iteration) is acceptable he will be able to amend the originating application to make it consistent with the statement of claim.

17    As these reasons for judgment deal with interlocutory applications to strike out a pleading, the facts stated in the reasons for judgment in so far as they relate to the facts underlying the pleaded claims, as opposed to the facts of the present proceeding, are not final factual findings. They are either facts as pleaded but not yet admitted or proved or they are merely stated here by way of background.

The relevant legal principles

18    The Court’s power to strike out a pleading is discretionary. Rule 16.21 of the Court’s rules provides that a strike out application may be made on various grounds including if the pleading is ambiguous (r 16.21(1)(c)), likely to cause prejudice or delay in the proceeding (r 16.21(1)(d)), fails to disclose a reasonable cause of action (r 16.21(1)(e)) or is otherwise an abuse of the process of the Court (r 16.21(1)(f)).

19    A strike out application is directed to the sufficiency of a pleading rather than the underlying prospects of success of the proceeding: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [23] per French CJ and Gummow J, citing White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511; 160 FCR 298 at [47] per Lindgren J. For the purposes of the application, the facts alleged in the pleading are assumed to be true, and it is taken for granted that on all other points the pleading is unimpeachable. If the pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet (including the requirements of r 16.02 of the Court’s rules), the pleading should be allowed to stand and the matter should be allowed to go to trial: Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 437 at [6]-[7] per Emmett, Bennett and McKerracher JJ.

20    A strike out order is ordinarily accompanied by an order granting the party leave to replead. Leave will be refused only in a very clear case: DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91; 310 FCR 361 at [187]. Leave should be refused if it would be futile to grant it in the circumstances. Separately, if a party has had multiple opportunities to plead a case and has failed to articulate an arguable claim, the Court may not afford a further opportunity to replead: Young Investments v Mann at [60]. That is to say, at some point the Court must draw a line and say enough is enough. Moreover, “[a] failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries Australia Ltd v Federal Commissioner of Taxation at [47].

The amended statement of claim

21    The amended statement of claim is divided into the following sections:

A.     Parties

B.     Overview – nature of the controversy

C.     Priority – separate questions for urgent threshold determination

D.     Jurisdiction

E.     Material facts – policy framework, approved leave and disability definition

F.     Material facts – conflict of interest in selection of TAL as insurer

G.     Material facts – AFCA process and broken timeline

H.     Material facts – postal disclosure, RTS and DPID integrity

I.     Material facts – AHRC certificate

J.     Grounds and causes of action

K.     Loss and damage

L.     Relief claimed

M.     Particulars reserved.

22    It is convenient to get some distractions and irrelevancies out of the way before considering the pleaded causes of action.

23    Section B, the “nature of the controversy”, attempts to identify what the proceeding “concerns” by identifying nine distinct issues. It does not plead any material facts or articulate any identifiable claims and serves merely as a distraction. What the issues are in the proceeding can and should be determined from what is pleaded in the statement of claim and in the defences in due course, it being premature and prejudicial, and certainly potentially confusing, to plead the relevant issues in advance and in the fashion pleaded by Mr Barron. Section B should accordingly be struck out.

24    Section C identifies four questions which Mr Barron, in the statement of claim, seeks to have determined separately and first pursuant to r 30.01 of the Court’s rules. Whether or not there should be an order for the prior determination of separate questions is not a suitable matter for a statement of claim – it should be addressed by way of interlocutory application or case management after defences have been filed. Section C should accordingly be struck out.

25    Section I states that Mr Barron participated in an Australian Human Rights Commission process in connection with the matters that are the subject of the proceeding and he was issued a certificate of determination following unsuccessful conciliation. As no relief is sought in the proceeding in relation to that matter, section I should be struck out.

26    There should be no leave to replead sections B, C and I.

The claim against AFCA

27    The claim against AFCA is principally set out in sections G, J5 and J6. In essence, Mr Barron raises complaints with regard to the manner in which AFCA handled his complaint that was lodged in June 2021 and not determined until November 2024. The complaints include unreasonable delay, jurisdictional error, that AFCA made a determination that no reasonable decision-maker could have made and that Mr Barron was denied procedural fairness. The relief sought against AFCA is orders setting aside AFCA’s determination of 27 November 2024 and that Mr Barron’s complaint to AFCA be redetermined, and a declaration with regard to a denial of procedural fairness.

28    With reference to AgriWealth Capital Ltd v Australian Financial Complaints Authority Ltd [2023] FCAFC 118; 299 FCR 319 per Perry, Downes and Kennett JJ, the following relevant principles can be identified:

(1)    AFCA operates the external dispute resolution scheme which financial services licensees are required to be members of under Pts 7.6 and 7.10A of the Corporations Act 2001 (Cth) (at [6]).

(2)    AFCA members are bound by the rules that apply to a member in respect of a complaint, which, together with AFCA’s Constitution, form a binding contract between each member and AFCA (at [7]).

(3)    A person who submits a complaint to AFCA is deemed to have agreed to have the complaint considered under the AFCA Rules, which form part of a contract between AFCA, “Financial Firms” and “Complainants” (AFCA rr A.1.2 and A.3.1) (at [8]). That was said in relation to the AFCA Rules dated 25 April 2020, but the relevant rules are identical in the set of rules that governs the present matter, namely those dated 31 January 2021.

(4)    The AFCA Rules define the limits of AFCA’s authority. They form a binding tripartite contract between the Complainant, AFCA and the member the subject of the complaint and “the question of AFCA’s authority, jurisdiction or power to deal with [a] complaint is to be determined by reference to the proper construction” of that contract (at [9] quoting from DH Flinders Pty Ltd v Australian Financial Complaints Authority Ltd [2020] NSWSC 1690 at [12] per Stevenson J).

(5)    AFCA’s determination of the complaint is “final” and binding on both parties if accepted by the Complainant within 30 days of receipt (AFCA r A.15.3) (at [22] citing Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWCA 204; 164 ACSR 215 (ACFM) at [7] per Bell CJ and Meagher JA, Basten AJA relevantly agreeing at [126]).

(6)    A determination by AFCA is not susceptible to judicial review. AFCA’s jurisdiction, powers and obligations are governed solely by the contract set out in the AFCA Rules; and any challenge to a determination by AFCA depends largely on whether the determination was made in accordance with the terms of that contract (at [22] citing ACFM at [9] which in turn quotes from the primary judgment in that case, Australian Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Ltd [2021] NSWSC 1577 at [4] per Ball J).

(7)    By their agreement that AFCA’s determination is to be final, the parties accept that the “determination will not be subject to review unless affected by fraud or dishonesty or lack of good faith or (by analogy with jurisdictional error) unless it is otherwise apparent that the determination has not been carried out in accordance with the agreement”. That will be the case if the outcome is one that no reasonable decision-maker could have reached (at [22] quoting from ACFM at [10] in turn citing Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185; 36 VR 456 at [38] and Cromwell Property Securities Ltd (as responsible entity of Cromwell Property Fund) v Financial Ombudsman Service Ltd [2014] VSCA 179; 288 FLR 374 at [86]-[89], [93], [256]).

29    To those principles can be added the provisions of AFCA r A.15.4, namely “[i]f a Complainant does not accept a Determination, the Complainant is not bound by the Determination and may bring an action in the courts or take any other available action against the Financial Firm”.

30    Mr Barron does not invoke the Court’s appeal jurisdiction in respect of an AFCA determination under s 1057 of the Corporations Act, and the 28 days for the bringing of such an appeal has long since expired. He relies on the Administrative Decisions (Judicial Review) Act 1977 (Cth) but that is misplaced as AFCA determinations are expressly excluded from review under that Act: see the definition of “decision to which this Act applies” in s 3(1) and para (hba) of Sch 1. He has not asserted a claim based on fraud or dishonesty or lack of good faith. He relies instead on the ground that the outcome is one that no reasonable decision-maker could have reached, but no factual basis is laid for such a conclusion – his complaints are essentially merits complaints.

31    For those reasons, the statement of claim as against AFCA should be struck out. It is then necessary to consider whether Mr Barron should have leave to replead a claim against AFCA.

32    In that regard, the principal difficulty with Mr Barron’s claim against AFCA is that it is inconsistent for him to seek for his claim to be reconsidered and redetermined by AFCA and at the same time to proceed against the relevant superannuation fund trustee and insurer in court. As mentioned, AFCA r A.15.4 enables Mr Barron to proceed in court directly against the relevant “Financial Firm”, namely BTFM and TAL. Mr Barron has elected to do that, reaffirming that election during the hearing before me.

33    In those circumstances it is an abuse of the process of the Court for a claim to be maintained against AFCA – Mr Barron cannot pursue the claims against BTFM and TAL simultaneously in two forums, AFCA and the Court. See, by way of analogy, UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [39] and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [33]. Mr Barron sought to justify the maintenance of his claim against AFCA on the basis of it being in the public interest for his complaints with regard to the AFCA process being aired and determined in court proceedings. But there is no public interest in the Court’s time and resources being taken up for the airing of grievances that are peculiar to a particular individual if doing so cannot result in any meaningful relief. That is not the Court’s role.

34    There is therefore no point in Mr Barron having leave to replead any claim against AFCA. He should be denied such leave.

The claims against BTFM

35    It is not a straightforward exercise to identify the claims that Mr Barron asserts against BTFM.

SIS Act and fiduciary duty claims

36    The first claim, or set of claims, relates to an alleged contravention by BTFM of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and/or breach of fiduciary duty owed to Mr Barron. In essence, it is pleaded that in 2016 BTFM conducted a tender process for group insurance policies for members of the Asgard fund at the conclusion of which it selected Westpac Life Insurance Services Ltd which, as mentioned, was subsequently acquired by TAL. The amended statement of claim then pleads as follows in section F:

23     The selection of TAL occurred in circumstances where:

(a)     TAL was a related party of BTFM, both being subsidiaries of Westpac Banking Corporation;

(b)     a third-party insurer, AIA Australia Limited, had scored higher on the weighted criteria for insurer selection;

(c)     criteria which were capable of being weighted were instead treated as non-weighted criteria; and

(d)     ultimately, non-weighted criteria were determinative in the selection of TAL, despite AIA’s superior performance on weighted criteria.

Particulars

Federal Court proceedings VID 826 of 2023 (Fisher v BTFM and TAL), Statement of Claim filed 19 January 2024, paragraphs 23 to 29. Those proceedings concern the same respondents, the same corporate relationships, the same tender decision, and Policy No. MP9962 specifically.

24     At all material times there was a conflict of interest (the Conflict) between BTFM’s duties to the Applicant and the interests of BTFM and TAL, in that:

(a)     it was BTFM’s duty to obtain insurance at premiums fair and most economical for the Applicant;

(b)     it was in BTFM’s own interest to obtain insurance from TAL at higher premiums, as BTFM charged administration fees calculated as a percentage of premiums; and

(c)     it was in TAL’s financial interest to charge higher premiums than a genuinely arm’s-length market process would have produced.

25     BTFM knew of the Conflict at the time of each of the insurance decisions referred to herein.

37    Later, it is pleaded that in making and implementing the insurance decisions referred to in section F, and in failing to ensure that Mr Barron’s SCI claim was assessed in accordance with the correct policy (a matter to which I will return), BTFM contravened various covenants in the SIS Act, namely (at [48]):

(a)     s 52(7)(a) of the SIS Act, in failing to formulate and give effect to an insurance strategy that gave proper consideration to arm’s-length selection of the insurer in the best interests of members;

(b)     s 52(7)(b) of the SIS Act, in failing to consider the cost to beneficiaries including the Applicant of the premiums charged under Policy No. MP9962;

(c)     s 52(7)(c) of the SIS Act, in acquiring insurance at premium rates that inappropriately eroded the retirement income of beneficiaries including the Applicant;

(d)     s 52(2)(b) of the SIS Act, in failing to exercise the care, skill and diligence of a prudent superannuation trustee;

(e)     s 52(2)(c) of the SIS Act, in failing to act in the best interests of the Applicant; and

(f)     s 52(2)(d) of the SIS Act, in failing to give priority to the Applicant’s interests over the interests of BTFM and TAL in circumstances where BTFM knew of the Conflict.

Particulars

A prudent superannuation trustee would not have selected TAL as insurer in circumstances where a third-party insurer scored higher on weighted criteria.

A prudent superannuation trustee would not have accepted the declination of a member’s SCI Claim on a policy construction it knew or ought to have known was incorrect.

The contraventions in (a)–(f) above also constituted contraventions of s 55(1) of the SIS Act (prior to 6 April 2019) and s 54B(1) of the SIS Act (after 6 April 2019).

38    In section K, it is pleaded that Mr Barron suffered loss and damage including “any overcharge in premiums paid under Policy No. MP9962 during the relevant period as a result of BTFM’s failure to obtain arm’s-length premium rates in the Applicant’s best interests”.

39    Finally, in section L “[c]ompensation pursuant to s 55(3) of the SIS Act for the contraventions pleaded in Part J” and an “account of profits and equitable compensation for breach of fiduciary duty” are claimed.

40    The proceeding referred to at para [23] of the statement of claim (quoted above at [36]) is a representative proceeding. It was commenced in October 2023 and discontinued with the approval of the Court in November 2024: Fisher v BT Funds Management Ltd (No 2) [2024] FCA 1340 (the Fisher proceeding). The Court explained the proceeding as follows, where WSAL is Westpac Securities Administration Ltd and WLISL is Westpac Life Insurance Services Ltd:

6    The proceeding concerns group insurance cover offered by BTFM and WSAL to members of the superannuation funds of which they were trustees. The categories of insurance offered included life insurance, death and total and permanent disablement cover, and income protection (also known as salary continuance insurance). More specifically, the proceeding concerned a tender process conducted by BTFM and WSAL in 2016 for the provision of group insurance policies to the members of the superannuation funds of which BTFM and WSAL were trustees. At the conclusion of the tender, the boards of each of BTFM and WSAL resolved to approve WLISL as the insurer and, in 2017, entered into a deed with WLISL governing the provision of insurance.

7     The applicants allege that the decision by BTFM and WSAL to appoint WLISL as the provider of group insurance policies to the members of the superannuation funds of which BTFM and WSAL were trustees contravened their duties under the SIS Act and under the general law. The applicants allege that the premiums that became payable by members of the BTFM and WSAL superannuation funds for the insurance offered through those funds following the appointment of WLISL were higher than the amounts that would have been paid if BTFM and WSAL had properly performed their statutory and general law duties.

8    The group members are persons who were:

(a)     members of the superannuation funds of which BTFM and WSAL were the trustees; and

(b)     holders of superannuation products issued by BTFM and WSAL that provided insurance cover under a group policy of insurance issued by WLISL in the period 6 October 2017 until 1 April 2023.

41    Mr Barron would appear to have been a group member in that proceeding, but once the proceeding was discontinued he was free to bring his own proceeding, noting that it was ordered that any limitation period that applied to the claims of any of the group members would begin to run again from a date 60 days after the filing of the notice of discontinuance for which leave was granted. The notice of discontinuance was filed on 20 November 2024.

42    The circumstances in which the proceeding was discontinued included “advice received from counsel with regard to prospects” (at [14]). The proceeding was commenced in reliance on publicly available material, and was sought to be discontinued after the applicants had the benefit of reviewing and considering documents produced by the respondents by way of initial discovery (at [26]). The applicants and litigation funders “assess[ed] the prospects of success in the proceeding as insufficient to justify its continuation” (at [29]).

43    I set all of that out not so much because of its present relevance, which is remote, but rather to assist Mr Barron in assessing whether he really wishes to proceed with such a claim in circumstances where a funded case in respect of the same claim in which a leading class action firm acted for the applicants and instructed experienced counsel was discontinued on the basis that it had poor prospects of success. Of course, it may be that the claim if pursued by Mr Barron nevertheless turns out in the end to be a good claim, but the prospects of a litigant in person without legal training and without resources to be able to marshal expert support being able to successfully prosecute such a claim must be regarded as remote. It is a complex claim that can be expected to be well defended by a respondent with deep pockets. Also, it has questionable value in terms of the relief that might be ordered in favour of a single fund member – presumably the difference between the premiums that were paid and those that would have been paid if a different insurer had been selected – and failure in such a claim would almost inevitably lead to an adverse costs order.

44    Mr Barron would accordingly be well advised to carefully consider whether it is truly in his interests to pursue such a claim.

45    Be all that as it may, the present question is whether the claim is adequately pleaded to allow it to go forward in its present form. I consider that it is not adequately pleaded. That is because it does not plead a sufficient factual basis. The particulars given to para [23] quoted above, namely merely a reference to the Fisher proceeding, are vague and embarrassing, and irrelevant. The allegations in that paragraph need to have a proper factual foundation that should be pleaded. Similarly, the factual basis to the conflict of interest pleaded in para [24] and the knowledge pleaded in para [25] need to be pleaded – see the Court’s r 16.43 with respect to pleading knowledge, also dealt with further below in relation to accessorial liability. Paragraph [48] pleads conclusions of law by merely repeating the wording of the various covenants in s 52 of the SIS Act without pleading a factual basis to those conclusions.

46    BTFM submits, with reference to para [48] of the statement of claim, that it is not clear whether this part of the claim also relates to the claim for an SCI benefit. Paragraph [48] makes express that the claim is also based on BTFM’s alleged failure to ensure that the SCI claim was assessed in accordance with the relevant policy, but no basis is set out for how that might be so.

47    In those circumstances, those parts of the statement of claim that plead the SIS Act contraventions and fiduciary duty breaches against BTFM should be struck out as likely to cause prejudice, embarrassment or delay in the proceeding. However, on the evidence currently before me it cannot be said that the claims are hopeless or cannot succeed. In the circumstances, notwithstanding Mr Barron’s previous opportunities to properly plead, I consider that justice requires that Mr Barron be given a further opportunity to plead those claims.

48    BTFM also submits that it is unclear whether the claims continue to be pressed. As at the time of the hearing, it was clear enough that Mr Barron intended to press these claims. For the reasons given, he would be wise to reassess that course.

SCI benefit claim

49    Mr Barron apparently asserts a claim against BTFM in relation to his SCI benefit claim being declined by TAL. That is apparent from the reference in para [48] already referred to. As already mentioned, the basis for such a claim is not apparent from the amended statement of claim. Such a claim cannot be persisted with unless it is properly pleaded.

Conduct of BTFM in relation to Mr Barron’s policies

50    In section H, it is pleaded that BTFM “advanced a narrative that policy disclosures were provided to the Applicant by post, and it relied on DPID barcode systems as proof of mailing”. Although not made express in the pleading, I infer that DPID is a reference to the Delivery Point Identifier which, I understand, is a machine-readable unique address identifier used by Australia Post to ensure accurate and efficient delivery of postal items. Further complaints are made with regard to something referred to as RTS, presumably return to sender, and PPP –possibly a reference to Asgard’s Personal Protection Package.

51    Those complaints seem to be brought together in para [54] where it is pleaded that:

BTFM and TAL advanced shifting and contradictory narratives regarding postal disclosure, return to sender events and DPID barcode integrity without primary proof records, and relied on a disputed 2011 document bearing integrity defects, in order to sustain the denial of the Applicant’s entitlements.

52    Finally, in section L relief is claimed in the form of “[t]argeted production orders requiring BTFM to produce primary proof records of the postal disclosure narrative including mailhouse manifests, DPID generation logs, and RTS handling records”.

53    One cannot make head or tail of these complaints. They appear to be the airing of grievances by Mr Barron with regard to how he was notified of changes to and developments regarding his policies over the years and about BTFM and TAL’s responses to his complaint to AFCA, but they do not find expression in any intelligible relief. The “targeted production orders” that are sought are not appropriate to a statement of claim – they are interlocutory orders which might be granted in due course in the aid of proof of a claim which itself finds expression in a statement of claim.

54    In short, those aspects of the pleading against BTFM do not disclose any reasonable cause of action. There is also nothing before me to suggest that they might be able to be repleaded in such a way as to disclose a cause of action that could give rise to any available relief. There should accordingly be no leave to replead them.

TPD claim

55    As I will come to in relation to TAL, the principal underlying claim that is the subject of this proceeding is the SCI claim. However, in two places the statement of claim also mysteriously refers to a TPD claim, or at least a benefit under such a claim. It is pleaded that Mr Barron’s loss and damage include “a Total and Permanent Disablement benefit of $385,000 plus interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth), in the event the Applicant is found to also satisfy the TPD definition” (at [55(b)]). Also, a declaration is sought “that BTFM is liable to pay the Applicant a Total and Permanent Disablement benefit of $385,000 plus interest” (at section L, prayer 8).

56    There is no basis at all laid in the statement of claim for any such claim. It cannot survive the strikeout application. However, in submissions Mr Barron referred to a TPD policy under which he said he would have a successful claim if his SCI claim failed. That cannot at this stage be ruled out. In the circumstances, Mr Barron should have leave to plead a TPD claim if he chooses to do so.

The claims against TAL

SCI benefit claim

57    The principal and most easily identifiable claim against TAL is the SCI benefit claim under what is identified in the statement of claim as the Asgard Independence Plan Division Two Policy No MP9962 (at [13]). That paragraph includes particulars which reference the Fisher proceeding. That is an irrelevant reference which is apt to confuse. It is thus likely to cause prejudice and should be struck out.

58    Clause 3.30 of the policy MP9962 is specifically referred to and what it is said to provide for is set out (at [14]). Relevantly, it is pleaded that where a member becomes totally disabled during “Approved Leave”, the member’s Pre-Disability Income is to be calculated by reference to the income earned in the 12 months immediately before the commencement of the Approved Leave and not by reference to any later period.

59    It is pleaded that the disability definition in the policy contains two limbs (at [15]):

(a)    Part A: the member is continuously and totally unable to perform the essential duties of their own occupation; and

(b)     Part B: the member is working fewer than a defined number of hours per week.

60    It is pleaded that Mr Barron was at all times employed as a fully qualified motor mechanic, the essential duties of which included, “as a core and inseparable function, the driving and test-driving of motor vehicles” (at [16]).

61    It is pleaded that “[o]n or about 10 March 2017, [Mr Barron] ceased employment” which cessation “was caused directly by the onset and progressive deterioration of his mental health condition” (at [17]). It is pleaded that Mr Barron’s “treating physician had by that time restricted him to driving for only a few hours per day by reason of his condition” which restriction rendered him “medically incapable of performing the essential duties of his occupation as a motor mechanic and caused the cessation of his employment”.

62    After pleading the continued payment of premiums (at [18]), it is pleaded that “[o]n 10 September 2018, [Mr Barron] was formally certified by a medical practitioner as totally unfit for work by reason of his mental health condition (the Date of Disablement)” (at [19]). It is pleaded that “at that date” the applicant was, and remains, totally disabled:

(a)     under Part A of the Total Disability definition, as a person continuously and totally unable to perform the essential duties of his occupation as a motor mechanic by reason of the same condition that caused the cessation of employment on 10 March 2017; and

(b)     alternatively, under Part B of the Total Disability definition.

63    It is then pleaded that Mr Barron lodged an SCI claim on 10 April 2019 which was declined by TAL on 6 November 2019 (at [21]).

64    In section J, it is pleaded (at [47]) that TAL breached its contractual obligations under the policy by:

(a)     declining the SCI Claim on the basis that the Applicant was not on Approved Leave, when on the proper construction of clause 3.30 and on the evidence of the health-caused cessation of employment, the Applicant was on Approved Leave;

(b)     calculating Pre-Disability Income by reference to a period after the commencement of Approved Leave during which the Applicant had no employment income, contrary to the express terms of clause 3.30 which requires calculation by reference to the 12 months before commencement of leave;

(c)     applying Part B of the Total Disability definition without proper consideration of Part A, in circumstances where Part A is the applicable provision because:

(i)     the Applicant’s occupation as a motor mechanic required driving as an essential function;

(ii)     his treating physician had restricted him to driving only a few hours per day on medical grounds; and

(iii)     his cessation of employment was caused by that disability;

(d)     relying on a selective and misleading quotation from the IME report while ignoring its broader clinical findings; and

(e)     failing to give proper weight to the treating physician evidence establishing the 2017 clinical origin of the disabling condition.

65    In section K (at [55]), it is pleaded that Mr Barron’s loss and damage relevantly include:

(a)     unpaid Salary Continuance Insurance benefits from the Date of Disablement (10 September 2018) to the date of judgment, calculated by reference to the Correct Pre-Disability Income (being the Applicant’s income in the 12 months before 10 March 2017), estimated at not less than $84,000 plus interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth);

…

(d)     consequential losses arising from the wrongful declination of the SCI Claim, including financial hardship, loss of housing security and associated losses, estimated at $1,350,000 or such other amount as the Court determines;

66    In section L, the following declarations are relevantly sought:

1.     A declaration that on the proper construction of clause 3.30 of Group Salary Continuance Insurance Policy No. MP9962, the Applicant’s insurance cover continued during the period of Approved Leave commencing 10 March 2017.

2.     A declaration that the Applicant’s Pre-Disability Income was required to be calculated by reference to his income in the 12 months before 10 March 2017, and that the calculation applied by TAL, BTFM and AFCA was erroneous.

3.     A declaration that Part A of the Total Disability definition is the applicable provision for assessment of the Applicant’s entitlement, and that the application of Part B without Part A analysis was erroneous.

…

7.     A declaration that TAL is liable to pay the Applicant Salary Continuance Insurance arrears of not less than $84,000 plus interest pursuant to s 57 of the Insurance Contracts Act 1984 (Cth).

67    Further, an order is sought that “BTFM and TAL jointly and severally pay the Applicant $1,350,000 in consequential losses”.

68    Policy No MP9962 which Mr Barron relies on is in evidence, having been tendered by both TAL and Mr Barron. Its effective date is 1 January 2018. Clause 3.30, on which Mr Barron bases his claim, provides as follows:

3.30 Cover during Approved Leave

If an Insured Member is on Approved Leave for up to twenty four (24) months, the Insured Member’s cover will continue on the same terms as applied immediately prior to commencing Approved Leave, subject to the payment of the relevant premiums. If an Insured Member’s Approved Leave is for more than twenty four (24) months, the Insured Member may apply to the Company for cover to continue on the same terms beyond the twenty four (24) months, otherwise a different Total Disability definition may apply.

Where an Insured Member suffers disablement during the period of Approved Leave of up to twenty four (24) months (or, where an extension of cover beyond twenty four (24) months is approved by the Company, during the extended period of leave approved by the Company), the Insured Member’s Pre-Disability Income will be determined as the average monthly Income earned by the Insured Member in the twelve (12) months immediately prior to commencing Approved Leave.

Where an Insured Member suffers disablement after being on Approved Leave for twenty four (24) months (or, where an extension of cover beyond twenty four (24) months is approved by the Company, after the extended period of leave approved by the Company), the Insured Member’s Pre-Disability Income will be determined as the average monthly Income earned by the Insured Member in the twelve (12) months immediately before the date of Total Disability.

The Total Disability Benefit or Partial Disability Benefit will commence on the later of the date immediately after the expiry of the Waiting Period and the documented return to work date.

69    “Approved Leave” is defined in cl 4 as follows:

(C) “Approved Leave”

Means Employer approved leave which includes:

a)     paid leave including sick leave, annual leave, long service leave, maternity leave, paternity leave; or

b)     unpaid leave including maternity leave, paternity leave; or

c)     other unpaid leave which is either approved by the Employer or an applicable award entitlement of twenty four (24) months or less.

70    “Total Disability or Totally Disabled” is also defined in cl 4. Relevantly, Part A of the definition will apply if the Insured Member was “on Approved Leave for up to twenty four (24) months (or, where an extension of cover beyond twenty four (24) months was approved by the Company, on Approved Leave for up to such period as approved by the Company)”. Part B will apply, relevantly, where the Insured Member was “working less than fifteen (15) hours per week on average, over the three (3) months immediately prior to disablement”.

71    The Part A definition of disablement includes the Insured Member being “unable to perform at least one Important Duty of his or her usual occupation necessary to produce Income”. It is that part of the definition that Mr Barron relies on in asserting that as at the time he ceased employment he was unable to drive a motor vehicle for more than two hours per day which, he says, was an “Important Duty” as defined, ie “involving twenty percent (20%) or more of the Insured Member’s overall tasks responsible for generating at least twenty percent (20%) or more of the Insured Member’s Pre-Disability Income”.

72    The Part B definition means disablement resulting solely from Sickness or Injury which occurred while the Policy was in force and a result of which the Insured Member was continuously and totally unable to perform at least two activities of daily living as certified by a Medical Practitioner, being bathing, dressing, eating, toileting and transferring (each of those activities being defined).

73    TAL submits that Mr Barron’s SCI claim as pleaded is bound to fail. That is because Mr Barron pleads that he ceased employment “[o]n or about 10 March 2017”, meaning that he was not on Approved Leave (as defined) thereafter but his date of disablement was not until 10 September 2018. TAL says that that means that his disability is to be assessed under Part B of the definition of “Total Disability or Totally Disabled” and that he clearly does not satisfy that far higher threshold of disability than that in Part A – that is because there were no two activities of daily living, as defined, that he was not able to perform. The medical evidence that Mr Barron has tendered supports such a conclusion. In any event, TAL says that Mr Barron cannot succeed under Part A if the date of disablement was 10 March 2017 because the policy was not effective until 1 January 2018. Mr Barron’s answer to that is that there is an earlier policy that he would succeed under, but TAL denies that. In any event, Mr Barron has not pleaded any earlier policy and none has been identified.

74    The short point is that it may be that Mr Barron has an arguable SCI claim under policy No MP 9962, but as presently pleaded it would seem that he cannot succeed – he cannot have ceased employment in March 2017 and also have been on Approved Leave thereafter. However, if indeed, as pleaded, his treating physician had by that time restricted him to driving only a few hours per day by reason of his condition then that may be properly regarded as his date of disablement (which has not been pleaded) and he may then succeed under Part A if he can identify and plead an earlier policy. Even aside from not being on Approved Leave after he ceased employment, he has not pleaded any factual basis on which he might succeed under Part B.

75    Mr Barron has also not pleaded the factual basis for the quantification of his SCI claim of “not less than $84,000”, nor has he pleaded any basis for consequential losses “estimated at $1,350,000”.

76    In the circumstances, Mr Barron’s SCI claim should be struck out as not disclosing a reasonable cause of action, but he should have leave to replead it.

Accessorial liability with regard to BTFM’s SIS Act contraventions

77    After pleading the SIS Act contraventions by BTFM, the following is pleaded:

49     TAL was involved in the making and implementation of each of the insurance decisions referred to in Part F, within the meaning of s 55(3) of the SIS Act, in that:

(a)     TAL knew the corporate structure of the Westpac Group;

(b)     TAL set the premium rates payable under Policy No. MP9962;

(c)     TAL obtained actuarial advice about expected costs and profits before setting those rates; and

(d)     in those circumstances TAL knew of the Conflict and the profit it stood to make as a related party of the trustee.

78    I have already dealt with the deficiencies in the pleading of the claim against BTFM for which TAL is said to have liability as an accessory. The accessorial liability cannot stand in the absence of a properly pleaded principal claim. Also, the accessorial liability is pleaded as being based on TAL’s knowledge. Rule 16.43 of the Court’s rules requires particulars of the facts on which a party relies in pleading that another party had knowledge of something to be pleaded. That has not been done.

79    In the circumstances, the claim based on the accessorial liability of TAL in respect of BTFM’s alleged SIS Act contraventions must be struck out. However, for the reasons already given, Mr Barron should have leave to replead that claim should he decide to do so.

TPD claim

80    As in relation to BTFM, the statement of claim mysteriously refers in two places to a TPD claim without identifying any policy or pleading any that may be the foundation to such a claim. That claim must be struck out, although Mr Barron should have an opportunity to plead it properly if he decides to pursue it.

RTS/DPID

81    As in relation to BTFM, Mr Barron pleads some matters also in relation to TAL concerning RTS and DPID. Those matters do not appear to have any basis in anything, and certainly do not disclose a reasonable cause of action that could give rise to any available relief. They should be struck out. There is nothing to suggest that there may be anything in them, so there should be no leave to replead them.

Disposition

82    In the result, insofar as the claims against AFCA are concerned, the statement of claim should be struck out and Mr Barron should have no leave to replead those claims.

83    Insofar as the claims against BTFM are concerned, the statement of claim should be struck out and Mr Barron should have leave to replead the following claims should he choose to do so:

(1)    the SIS Act and fiduciary duty claims;

(2)    the SCI benefit claim; and

(3)    the TPD claim.

84    Insofar as the claims against TAL are concerned, the statement of claim should be struck out and Mr Barron should have leave to replead the following claims should he choose to do so:

(1)    the SIS Act and fiduciary duty claim in respect of which it is said that TAL is an accessory;

(2)    the SCI benefit claim; and

(3)    the TPD claim.

85    Commendably, none of the respondents seeks a costs order against Mr Barron.

86    As set out above, Mr Barron has had several opportunities to properly plead his claims. He has also had the benefit of pro bono legal representation which he then terminated. I am giving him a further opportunity to plead the claims which, at least notionally, can be properly pleaded. However, there is a limit to how many times a party can be given yet another opportunity to put their case, even a litigant in person. It may be that the proper exercise of the discretion with regard to whether a party should be allowed a further opportunity to plead their case will have to be exercised against Mr Barron in the event that he does not now adequately plead his claims in accordance with the leave that I am granting him.

Associate:

Dated:    2 June 2026