Federal Court of Australia

Singhal v Finsure Finance & Insurance Pty Ltd (Leave to Appeal) [2026] FCA 1044

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal be referred to a Full Court to be heard concurrently with argument as if on appeal.

2.    The applicant be referred for pro bono assistance under r 4.12 of the Federal Court Rules 2011 (Cth).

3.    The costs of the application for leave to appeal to date be reserved.

OTHER MATTERS:

A.    Directions for the conduct of the matter shall be made by a Registrar of the Court. In addition to providing for submissions, those directions may provide for the filing of an amended application for leave to appeal, and an amended draft notice of appeal.

B.    In relation to the contents of an appeal book, attention is drawn to [8] of the reasons for judgment published this day.

C.    The respondent stated a preparedness to prepare the appeal book for the Court.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant seeks leave to appeal orders of a judge of this Court by which her proceeding was summarily dismissed under r 26.01 of the Federal Court Rules 2011 (Cth) on the ground that she had not identified any arguable cause of action against the respondent (Finsure) which raised a matter that enlivened federal jurisdiction: Singhal v Finsure Finance & Insurance Pty Ltd [2025] FCA 1681 (J) at [40]. In consequence, the applicant’s application to add Bank of Queensland Ltd (BOQ) as a second respondent to the proceeding was dismissed. Leave to appeal is required because the orders were interlocutory: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [40] (Spender, Graham and Gilmour JJ).

Factual background

2    The primary judge summarised the factual background at J [14] to [18] drawing on the applicant’s concise statement and two affidavits of the applicant affirmed 2 April 2025. I adopt his Honour’s summary –

14    On or about 9 October 2019, Ms Singhal entered into an ‘Introducer Agreement’ with Finsure (the agreement). Finsure is the holder of an Australian credit licence under the National Consumer Credit Protection Act 2009 (Cth) and was referred to in the agreement as an “aggregator”. Ms Singhal was a credit representative of Finsure and was referred to in the agreement as an “introducer”. Pursuant to the agreement, Ms Singhal introduced loan applications for home, vehicle or personal loans to lenders using Finsure’s software system, for which she paid Finsure a monthly fee and received commissions from lenders for loans that were successfully brokered. Finsure collected commissions on behalf of Ms Singhal from the lenders.

15    In about July 2023, Finsure conducted an audit of loans initiated by Ms Singhal as a result of concerns being raised by ME Bank (a subsidiary of BOQ) and National Australia Bank. On 15 July 2023, Finsure staff interviewed Ms Singhal. The results of the audit, as well as notes about the interview with Ms Singhal, were recorded in a document titled “Broker Incident Report” signed on 16 November 2023.

16    Following the audit, on 11 August 2023, BOQ terminated Ms Singhal’s accreditation with the bank. On 8 November 2023, Finsure suspended Ms Singhal’s access to Finsure’s system and her authority to submit loan applications to Finsure under the agreement. On 28 November 2023, Finsure terminated the agreement.

17    It appears that Finsure has withheld certain commissions from Ms Singhal pending the resolution of complaints made about Ms Singhal to the Australian Financial Complaints Authority (AFCA). These complaints were resolved in or about May 2025, however Finsure continues to withhold the commissions while this proceeding is on foot. By its defence, Finsure alleges that it is entitled to withhold the commissions because it has a right to be indemnified by Ms Singhal under cl 10 of the agreement (having incurred costs and expenses due to Ms Singhal’s conduct).

18    Following the suspension of the agreement, Ms Singhal sought to move to a different aggregator. Those aggregators requested a reference check of Ms Singhal from Finsure. Finsure provided reference checks to several aggregators and to AFCA in 2023 and 2024.

Procedural background

3    At all times the applicant has been self-represented. English is not the applicant’s first language and at the hearing before the primary judge and on the hearing of the application for leave to appeal the applicant made oral submissions with the assistance of an interpreter.

4    The applicant commenced the proceeding by originating application filed 2 August 2024. The originating application was accompanied by a concise statement. The applicant’s concise statement was succeeded by a statement of claim. The statement of claim named BOQ as a second respondent, although it was not a party to the proceeding. The primary judge stated at J [3] that the claims sought to be made by the applicant in the statement of claim were not clearly expressed and that many of the allegations were unintelligible. Finsure filed a defence to the statement of claim.

5    On 13 June 2025, the primary judge ordered the parties to attend a confidential conference before a Registrar of the Court for the purpose of seeking to agree a list of factual and legal issues (list of issues) for determination in the proceeding that provided arguable grounds for relief in the Federal Court. After the conclusion of the confidential conference the Registrar provided a memorandum and a list of issues to the parties and the primary judge. Subsequently, the applicant made some amendments to the list of issues. The amended list of issues took on a tabular form identifying issues of fact and identifying statutory provisions under three headings –

(a)    Termination of Introducer Agreement - Breach of Contract between (8 Nov 2023 to 28 Nov 2023);

(b)    Serious Fraud/ Regulatory Breach/ Civil Offence (Between 8 May 2023 to 8 Nov 2023); and

(c)    Defamation (Between 06 Dec 2023 to 17 July 2024).

6    Following the preparation of the list of issues, Finsure filed an interlocutory application dated 17 October 2025 seeking to have the proceeding dismissed or permanently stayed. In the alternative, Finsure sought an order under r 16.21 of the Federal Court Rules that the originating application be struck out.

7    The primary judge heard Finsure’s application and the applicant’s application to join BOQ together, granting the former on the basis that there was no arguable cause of action within federal jurisdiction and dismissing the latter on the same basis.

The application for leave to appeal

8    On the hearing of the application for leave to appeal the applicant read without objection an affidavit that she affirmed on 24 December 2025. That affidavit was largely in the form of submissions. In addition, I treated the following documents as being before the Court –

(a)    the originating application;

(b)    the concise statement;

(c)    the statement of claim;

(d)    the defence;

(e)    a copy of the memorandum from the Registrar to the primary judge which accompanied the list of issues;

(f)    the amended list of issues;

(g)    the two affidavits of the applicant affirmed 2 April 2025 which were referred to by the primary judge;

(h)    the official transcript of the hearing before the primary judge on 15 December 2025;

(i)    a copy of Exhibit A that was tendered in the application before the primary judge, being one of the reference requests which was the subject of the applicant’s defamation claim; and

(j)    copies of submissions that the applicant emailed to the primary judge’s chambers after the hearing had concluded and which his Honour did not consider: see Frugtniet v Secretary, Dept of Social Services [2021] FCAFC 127; 285 FCR 159 at [85] and the cases cited therein.

9    Although I received the post-hearing submissions to the primary judge as part of the material on the application for leave to appeal, I have not had cause to consider them.

Disposition

10    I have determined to refer the application for leave to appeal to a Full Court to be heard concurrently with argument presented as if on appeal.

11    The applicant advanced five grounds in support of her application for leave to appeal, which substantially overlap. Each of the grounds concerned claims that were said to arise under various provisions of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) and the Corporations Act 2001 (Cth) which the primary judge declined to consider on the basis that they were not pleaded: T17/40 to 18/8. The applicant submitted that the primary judge erred in doing so.

12    The subject matter of the applicant’s defamation claim was reference checks that the applicant alleged were published by Finsure. One of the reference checks was the document tendered before the primary judge as Exhibit A. That document contained statements that were capable of being defamatory of the applicant. The applicant’s case is that as a result of the publication of the reference checks she has been unable to obtain employment in the finance industry and that she has thereby suffered loss and damage.

13    There is material that is capable of supporting a conclusion that the reference checks were published by Finsure pursuant to the ASIC Corporations and Credit (Reference Checking and Information Sharing Protocol) Instrument 2021/429 (the Protocol). The Protocol was referred to in the reference check that was tendered before the primary judge as Exhibit A. The Protocol is a statutory instrument that is published on the Federal Register of Legislation. Section 9 of the Protocol provides, inter alia –

9    Referee licensee—obligation to give reference

(1)    A referee licensee that receives a request for a reference about a prospective representative from a recruiting licensee in accordance with section 8 of this Protocol must give a reference to the recruiting licensee that:

(a)    includes all information of which the referee licensee is aware and reasonably considers to be relevant to answer the questions in the template reference request; and

(b)    is complete, accurate and based on documented facts; and

(c)    if a question cannot be answered—includes an explanation as to why the question cannot be answered.

…

14    Paragraph 47(1)(ea) of the NCCP Act imposes an obligation on Australian credit licensees to comply with the Reference Checking and Information Sharing Protocol determined by ASIC under subsection 47(3A). There are other obligations under s 47, including an obligation under s 47(1)(a) to do all things necessary to ensure that the credit activities authorised by the licence are engaged in efficiently, honestly, and fairly. Paragraphs 47(1)(a) and (ea) are civil penalty provisions: ss 5, 47(4). Under s 178 of the NCCP Act the Court has power to order compensation for loss and damage resulting from the contravention of a civil penalty provision.

15    The jurisdiction of the Court is not to be assessed only by reference to the terms of the originating process or its underlying pleading: Tucker v McKee [2022] FCAFC 98; 292 FCR 666 at [26] (Allsop CJ, Kenny and Jagot JJ). A question arises as to whether the applicant maintained before the primary judge a claim that Finsure had contravened s 47 of the NCCP Act by breaching the Protocol. The applicant cited s 47 in oral argument before the primary judge: T6/36. In the documents before the primary judge the applicant claimed that the respondent’s reference checks breached the Protocol. In her concise statement at [16] the applicant alleged that the respondent breached s 9 of the Protocol by providing misleading information regarding the applicant “which was neither fact nor able to be substantiated”. At [41] of the concise statement the applicant sought compensation for that alleged breach in the form of loss of income. At [20(b)] of the statement of claim the applicant alleged that the respondent had “misused the powers” of the Protocol. Similarly, the list of issues that was settled by the Registrar following the confidential conference made express references in row 7 (which related to defamation) to contraventions and breaches of the Protocol including alleging a contravention of s 9. The document also referred to a claim that Finsure had circulated defamatory material “by misusing” the Protocol.

16    In addition, it is necessary to assess jurisdiction by reference to the whole of the controversy between the parties: Tucker v McKee at [27], [55]. A matter may arise under a law of the Commonwealth because a defence owes its existence to a Commonwealth law. Under s 47(3F) of the NCCP Act there is a statutory defence of qualified privilege in relation to information shared in accordance with the Protocol. Finsure did not plead qualified privilege in response to the applicant’s defamation claim. When I raised the question whether the statutory qualified privilege defence was an issue in the proceeding, counsel for Finsure responded at T25/15-27 –

Not so far as I am aware, your Honour. Well, it was never – it was never raised in the proceedings in the court below, because the – if it has any relevance, it would be to the allegation made in the – of defamation that it did not ever get off the ground because there was a failure to articulate under which State law, the statements were defamatory. There was no proper particulars provided of defamation. There was no compliance of the practice note. The Federal Court practice note with respect to defamation. But, if the defamation case had – if leave had been granted for the – sorry, I will withdraw that.

If the court had not dismissed the proceedings on the basis that it, for want of jurisdiction, then my client would have been able to raise subsection (3F) as a defence to the defamation claim. But none of that ever got ventilated because the defamation case never really got off the ground. The same submission can be made about subsection (3G), your Honour.

17    A question arises as to whether in these circumstances a defence of statutory or common law qualified privilege which would likely direct attention to the statutory framework within which the publications occurred, even if not pleaded by Finsure at this stage, is part of the controversy between the parties.

18    Finsure filed a notice of contention in the application for leave to appeal. The matters referred to in the notice of contention were relied on as discretionary reasons why leave to appeal should be refused. Broadly, Finsure contended that the applicant’s claim should have been dismissed pursuant to r 26.01 of the Federal Court Rules, and alternatively that the statement of claim should have been struck out pursuant to r 16.21 of the Rules on the ground that the applicant did not formulate a cogent pleading or list of issues that disclosed an arguable cause of action save for breach of contract. In my view it is in the interests of justice that the respondent be able to maintain before the Full Court such of these matters that are relevant and which have merit, which is a reason to refer the leave application to the Full Court so that the leave application and any appeal if leave is given can be considered on a global basis.

Conclusion

19    I will refer the leave application to the Full Court and hear the parties on any necessary directions.

Associate:

Dated:    3 August 2026