Federal Court of Australia

EER26 v Australian Financial Complaints Authority Limited [2026] FCA 1057

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    By 4.00pm on 19 August 2026, the parties are to submit agreed proposed orders on the question of costs, or, if not agreed, separate orders and an outline of submissions (not exceeding 3 pages).

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    From about October 2009 to 28 July 2016, the Applicant held an account with IG Markets Limited and IG Australia Pty Ltd (collectively, IG) which permitted him to trade in contracts for difference (CFDs). The backstory to the Applicant’s claims in this proceeding concerns the losses which the Applicant sustained from trading in CFDs, through the account with IG, and the complaints he wished to pursue in respect of IG as a result.

2    The Applicant’s first complaint was made to IG Markets under its internal dispute resolution system in January 2025, approximately 9 years after the last trade on his account, although that complaint is not relevant to the Applicant’s claims in this proceeding.

3    On 6 April 2025, the Applicant submitted a complaint in respect of IG to the respondent, the Australian Financial Complaints Authority Limited (AFCA). On 20 August 2025, AFCA advised the Applicant that his complaint in respect of IG fell outside the six-year time limit under AFCA’s rules and that “special circumstances” did not apply. AFCA therefore would not extend the time limit, and AFCA closed the complaint. The Applicant then made two service complaints, one to AFCA’s internal Service Complaints Team and one to AFCA’s Independent Assessor, resulting in two further decisions that AFCA would not consider the Applicant’s complaint made in April 2025.

4    By Originating Application filed on 12 March 2026, read in conjunction with the accompanying Concise Statement, the Applicant sought judicial review under s 39B of the Judiciary Act 1903 (Cth) of the latter two decisions of AFCA.

5    By interlocutory application filed on 20 May 2026, AFCA sought orders pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and/or r 26.01(1)(a), (c) or (d) of the Federal Court Rules 2011 (Cth) that the proceeding be summarily dismissed. In the alternative, AFCA sought an order pursuant to r 16.21(d), (e) or (f) of the Rules that the Concise Statement be struck out in whole or in part. The application was made on the grounds that decisions of AFCA are not amenable to judicial review by this Court and, as a result, the Applicant’s claim has no reasonable prospects of success and the proceeding should be dismissed, or, alternatively, the Concise Statement should be struck out.

6    AFCA relied on an affidavit of Mr Peter Clay, solicitor for AFCA, dated 15 May 2026. Mr Clay described AFCA’s process for handling complaints and set out and exhibited the Applicant’s complaints to AFCA and the responses provided.

7    For the purposes of the application, the Applicant, who is self-represented, relied on an affidavit which he affirmed on 28 May 2026, and the affidavit he filed with the Concise Statement, affirmed on 29 December 2025. The Applicant’s affidavits described the background to his complaints to AFCA, AFCA’s decisions in respect of them and what the Applicant said constituted the grounds for judicial review. The Applicant also filed a written outline of submissions, which he supplemented by making oral submissions at the hearing of the application.

8    For the reasons set out below, the application should be allowed and the proceeding should be dismissed.

background

9    AFCA is authorised to operate the “AFCA scheme”, as defined and established in accordance with the Corporations Act 2001 (Cth). The AFCA scheme is an external dispute resolution scheme for financial services complaints, including complaints in relation to financial services licensees. AFCA is required to determine complaints referred to it for external dispute resolution in accordance with rules that are approved by the Australian Securities and Investments Commission (AFCA Rules).

10    As already mentioned on 6 April 2025, the Applicant submitted a complaint to AFCA in respect of IG for the period 14 October 2009 to 28 July 2016 (April Complaint). The Applicant stated that he suffered significant losses by trading in CFDs, through his account with IG, and described his issues with IG as follows:

IG has engaged in misleading, deceptive and unconscionable conduct by offering CFDs (a high-risk financial product) to me as an inexperienced investor without proper disclosure of the risks. IGs failure of Duty of Care – IG systems and IG Client Managers failed to pick up behaviours that indicate vulnerability (gambling addiction) or if they did they failed to take any action.

11    Although the April Complaint was described as a “complaint”, the Applicant stated that he sought an extension of time to lodge a complaint in respect of IG on the basis that “special circumstances” apply. As will be explained below, the AFCA Rules contain time limits for complaints, which AFCA may extend where it considers “special circumstances” apply. The Applicant said that the relevant “special circumstances” were that he suffered from a gambling addiction which had impaired his judgement, and he said that he did not reasonably become aware of this, and the losses he had sustained, until after 29 April 2020 when he stopped betting significant amounts on CFDs.

12    On 16 April 2025, IG Australia requested that AFCA exclude the Applicant’s complaint against IG on the basis that the complaint fell outside the time limits under Rule B.4.3.1 of the AFCA Rules.

13    On 20 August 2025, AFCA advised the Applicant of its decision to exclude the Applicant’s complaint because it fell outside the six-year time limit in Rule B.4.3.1(a) and stated that it was not satisfied that special circumstances applied to the complaint for the purpose of Rule B.4.4.2 (August Decision). AFCA stated that, if the Applicant did not accept the August Decision, he could object and provide further relevant information.

14    The Applicant made an objection to the August Decision on 24 August 2025. The Applicant supplemented that objection by providing additional information to AFCA on 6 September 2025 and again on 16 September 2025.

15    On 23 September 2025, in response to the Applicant’s objection, AFCA confirmed its decision that it was unable to consider the Applicant’s complaint in respect of IG, and that the complaint fell outside AFCA’s jurisdiction, because the complaint fell outside AFCA’s time limits and the Applicant’s claim of special circumstances had not been established (Objection Decision).

16    AFCA has a two-stage process for handling complaints about the quality of its service: first, an internal service complaints handling team will review the service complaint and, secondly, a final independent review of a service complaint is conducted by AFCA’s Independent Assessor.

17    On 30 September 2025, the Applicant made a service complaint to the AFCA Service Complaints Team. The complaint was expressed to concern a lack of procedural fairness in AFCA’s handling of the Objection Decision, and was not said to concern the merits of the dispute itself.

18    On 29 October 2025, the AFCA Service Complaints Team advised the Applicant that its role was to review concerns relating to the quality of service provided by AFCA during the complaints handling process, as distinct from assessing or revisiting the merits of a complaint. The Service Complaints Team further advised that, when a complaint is lodged with AFCA, as part of its usual process, AFCA assesses whether a complaint is within its jurisdiction. It reiterated the position that AFCA was unable to assess the Applicant’s complaint because it fell outside AFCA’s time limits and stated that the Service Complaints Team was satisfied that the Applicant’s complaint was assessed in accordance with AFCA’s Operational Guidelines and the AFCA Rules.

19    On 1 November 2025, the Applicant made a complaint to the Independent Assessor. In short, the Applicant asked the Independent Assessor to set aside its “procedurally flawed jurisdictional decision” and re-make the Objection Decision.

20    On 4 November 2025, the Independent Assessor advised the Applicant that they were unable to investigate the Applicant’s complaint about AFCA’s jurisdictional decision or the Service Complaints Team’s rationale in upholding the decision (IA Decision). The Independent Assessor explained that the Independent Assessor Terms of Reference did not allow them to consider complaints about the merits or substantive outcome of a determination and the Applicant’s complaint had been closed.

21    As already mentioned, the Applicant commenced this proceeding in March 2026 effectively seeking judicial review of the Objection Decision and the IA Decision. Shortly after that, in April 2026, AFCA’s solicitors wrote to the Applicant and raised the concerns that prompted this application, namely that AFCA’s decisions are not amenable to judicial review.

22    The Applicant dismissed the concerns raised by AFCA’s solicitors and, as a result, AFCA filed the application.

the applicant’s claims for relief

23    By the Originating Application, the Applicant sought review of the Objection Decision and the IA Decision pursuant to s 39B of the Judiciary Act. Although it was unclear whether the relief sought by the Applicant extended to the August Decision, the Applicant stated at the hearing of the application that he also sought relief in respect of the August Decision, and the parties proceeded on the basis that the Concise Statement covered the August Decision and the Applicant also sought relief in relation to that decision.

24    By way of relief, the Applicant sought:

(a)    declarations that AFCA’s August Decision, Objection Decision and IA Decision (AFCA Decisions) were affected by jurisdictional error and invalid;

(b)    orders that they be quashed; and

(c)    an order remitting the April Complaint for reconsideration according to law.

25    As AFCA submitted, it can readily be seen that the relief sought by the Applicant was in the nature of certiorari quashing the AFCA Decisions, as well as orders in the nature of mandamus compelling AFCA to reconsider the April Complaint. The Applicant also sought a protective costs order.

26    The primary grounds on which the Applicant sought the above relief, as stated in the Concise Statement, were:

(a)    failure to consider relevant considerations, namely, that AFCA failed to consider material evidence directly relevant to whether the Applicant could have been “reasonably aware” of his loss and the special circumstances discretion;

(b)    misconstruction of the AFCA Rules, namely, that AFCA misconstrued Rule B.4.3.1(a) by applying a purely objective test;

(c)    failure to exercise discretion, namely, that AFCA failed to consider whether to exercise the discretion under Rule B.4.4.2;

(d)    legal unreasonableness, being that the conclusion that no new and relevant information was provided lacked an evident and intelligible justification;

(e)    denial of procedural fairness; and

(f)    jurisdictional error by the Independent Assessor.

27    Sitting underneath these allegations was the Applicant’s contention that AFCA misconstrued Rule B.4.3.1(a) of the AFCA Rules and failed to consider whether to exercise the discretion under Rule B.4.4.2 of the AFCA Rules.

the AFCA scheme

28    As already mentioned, the AFCA scheme is an external dispute resolution scheme for financial services complaints of which financial services licensees are required to be members under Pts 7.6 and 7.10A of the Corporations Act. Complaints in relation to financial services licensees can be referred to AFCA for external resolution and AFCA is required to determine such complaints in accordance with the AFCA Rules. The AFCA Rules in force at the time of the April Complaint were exhibited to Mr Clay’s affidavit.

29    A person who submits a complaint to AFCA authorises AFCA to consider the complaint in accordance with the AFCA Rules and is deemed to have agreed to have their complaint considered under the AFCA Rules. Once a complaint is made to AFCA, the AFCA Rules form a binding tripartite contract between AFCA, the financial firm and the complainant: Rules A.1.2 and A.3.1 of the AFCA Rules; AgriWealth Capital Limited v Australian Financial Complaints Authority Limited (2023) 299 FCR 319; [2023] FCAFC 118 at [8] (Perry, Downes and Kennett JJ); Australian Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Ltd (2022) 164 ACSR 215; [2022] NSWCA 204 at [3] (Bell CJ and Meagher JA) (ACFM v AFCA).

30    AFCA’s determination of a complaint is final and binding on all parties if accepted by the complainant within 30 days of receipt: Rule A.15.3(a); AgriWealth at [22]. However, if the complainant does not accept the 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: Rule A.15.3(b).

31    It was not in dispute that the Applicant’s complaint constituted an “other complaint” or “other situation” under the AFCA Rules, which attracted the time limits in Rule B.4.3.

32    Rules B.4.3 and B.4.4.2 of the AFCA Rules relevantly provide:

B.4.3 Other complaints

B.4.3.1    In other situations, AFCA will generally not consider a complaint unless it was submitted to AFCA before the earlier of the following time limits:

a)     within six years of the date when the Complainant first became aware (or should reasonably have become aware) that they suffered the loss; and

b)    where, prior to submitting the complaint to AFCA, the Complainant was given an IDR Response in relation to the complaint from the Financial Firm - within two years of the date of that IDR Response.

B.4.4 Extension of time limits

[…]

B.4.4.2    AFCA may consider a complaint submitted after the time limits set out in rules B.4.1.5, B.4.2 and B.4.3 if AFCA considers that special circumstances apply.

33    The relevant effect of Rule B.4.3 is that AFCA generally will not consider a complaint unless it is submitted to AFCA within six years of the date when the complainant first became aware (or should reasonably have become aware) that they have suffered loss. However, pursuant to Rule B.4.4.2, AFCA may consider a complaint submitted after the relevant time limit if it considers that “special circumstances” apply. (I note for completeness that, although the Applicant brought the complaint within two years of the date of the internal dispute resolution response received from IG, see above at [2], Rule B.4.3 provides that the time to complain to AFCA expires at the earlier of that two year period and the six year period from when they should have become aware of the loss.)

34    Rule A.1.2 provides that AFCA “may develop Operational Guidelines setting out how AFCA interprets and applies” the AFCA Rules. In the Operational Guidelines to the AFCA Rules, AFCA states that in assessing whether special circumstances apply, it considers factors such as:

(a)    the reasons for the delay;

(b)    the degree of disadvantage sustained by the complainant if an extension is not granted;

(c)    the extent of the delay; and

(d)    the level of prejudice to the financial firm if an extension is granted, for example, if the passage of time makes the financial firm unable to defend its position.

Relevant principles

Summary dismissal

35    Section 31A of the FCA Act relevantly provides:

31A Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospects of success.

36    Rule 26.01 of the Rules relevantly provides:

26.01 Summary judgment

(1)    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

[…]

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court;

37    The principles in relation to summary judgment applications are well established. I recently summarised the relevant principles in Greaves v Ice Skating Australia Limited [2026] FCA 683, at [22], as follows:

(a)    A proceeding may be summarily dismissed where the Court is satisfied that the party bringing the proceeding has no reasonable prospect of successfully prosecuting the proceeding: Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [22]–[23] (French CJ and Gummow J).

(b)    Section 31A of the FCA Act has lowered the threshold for summary judgment and it is no longer necessary for the case to be shown to be “hopeless” or “bound to fail”. However, the power to dismiss a proceeding summarily is not to be exercised lightly: Spencer at [22]–[24] (French CJ and Gummow J), [52]–[60] (Hayne, Crennan, Kiefel and Bell JJ); Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ); Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256; [2013] FCA 641 at [50] (Reeves J); Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [27]–[29] (McKerracher J).

(c)    The determination of a summary dismissal application does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial: Cassimatis at [46].

(d)    A practical judgment as to the case at hand is required, by reference to the stage it has reached: Spencer at [25]; Cassimatis at [46].

(e)    Cases involving complex issues of law and fact or mixed issues of law and fact are unlikely to be appropriate for resolution by summary judgment: Spencer at [26], citing Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1 at [95] (Lord Hope).

38    To those principles I add that a lack of jurisdiction or competency is a ground for summary dismissal: White Industries Australia Limited v Federal Commissioner of Taxation 160 FCR 298; [2007] FCA 511 at [22], [52], [60]. An application for summary dismissal is likely to succeed if it is demonstrated to the Court that the applicant’s success in the principal proceedings relies upon a question of law that is straightforward and confined, or is trite in the sense that it is well settled on authority, such that the question can be resolved summarily without the necessity for a full trial: Cassimatis at [48].

Strike out

39    Rule 16.21(1) of the Rules relevantly provides:

16.21 Application to strike out pleadings

(1)     A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

[…]

(d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)    is otherwise an abuse of the process of the Court.

40    In KTC v David [2022] FCAFC 60 at [118]–[125], Wigney J (with whom Anastassiou J agreed as to the principles, at [329]) set out the principles relevant to an application under r 16.21. I gratefully adopt and repeat the following passages that are particularly pertinent in the present application (citations omitted):

Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which in summary provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.

The word “vexatious” in the context of rules such as r 16.21 is an “omnibus expression” that includes material which is scandalous, discloses no reasonable cause of action, is oppressive or embarrassing, or the inclusion of which is otherwise an abuse of the processes of the Court

[…]

A “reasonable cause of action”, for the purposes of r 16.21(1)(e) of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded

[…]

Normally the power to strike out should be exercised only in plain and obvious cases, where no reasonable amendment could cure the alleged defect or deficiency … The power is discretionary and should be employed sparingly and only in a clear case.

41    The Court's power to strike out a pleading under r 16.21 is discretionary. A strike out application is directed to the sufficiency of a pleading rather than the underlying prospects of success of the proceeding: Spencer at [23] (French CJ and Gummow J, citing White Industries at [47] (Lindgren J)). For the purposes of the application, the facts alleged in the pleading are assumed to be true. 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 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) 293 ALR 437; [2012] FCAFC 107 at [6]–[7] (Emmett, Bennett and McKerracher JJ).

42    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) 310 FCR 361; [2025] FCAFC 91 at [187] (Stewart J, with whom Mortimer CJ and Stellios J agreed, at [1] and [206] respectively).

determination

43    AFCA submitted that there are two substantive impediments to the Applicant’s proceeding in this Court. First, the original jurisdiction conferred on this Court under s 39B of the Judiciary Act is excluded in respect of matters arising under the Corporations legislation, by force of s 1337A(2)(b) of the Corporations Act. Secondly, even apart from that jurisdictional exclusion, the impugned AFCA Decisions made under the AFCA scheme are not susceptible to judicial review.

44    Subject to paragraph 49 below, s 1337B of the Corporations Act is the only potential source of jurisdiction for this Court to hear a dispute concerning a determination under the AFCA scheme: AgriWealth at [20]. However, as AFCA submitted, the first impediment to the Applicant’s application for judicial review of the AFCA Decisions under s 39B of the Judiciary Act is that the Court’s original jurisdiction under s 39B is excluded by force of s 1337A(2) of the Corporations Act.

45    Section 1337B(1) of the Corporations Act confers jurisdiction on this Court with respect to civil matters arising under “Corporations legislation”, which includes the Corporations Act. However, Div 9.6A of the Corporations Act, in which s 1337B is found, operates to the exclusion of s 39B of the Judiciary Act: see s 1337A(2)(b); AgriWealth at [20]. This Court’s jurisdiction for judicial review under s 39B of the Judiciary Act is excluded in this matter.

46    AFCA determinations have contractual, not statutory, force. In ACFM v AFCA, at [4]–[10], Chief Justice Bell and Meagher JA, in a passage endorsing the findings of Ball J in Australian Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2021] NSWSC 1577, confirmed the consequences to complainants of the final and binding nature of AFCA determinations in the following terms:

Section B of the AFCA Rules ... provides the requirements that must be met in order for AFCA to be able to consider a complaint that is submitted to it by a person eligible to make a complaint. Section C and rr C.1.2 – C.1.6 specify categories of complaints that AFCA must exclude unless all parties to the complaint and AFCA agree to AFCA considering the complaint.

Sections B and C of the AFCA Rules collectively may be described as going to AFCA’s “jurisdiction” to resolve complaints by eligible persons about AFCA members. Those Rules provide that a “complaint is within AFCA’s jurisdiction provided it meets the requirements (as set out in section B) unless it is outside jurisdiction (as set out in section C)”.

...

Once a complaint is made to AFCA, its Rules form a contract between the complainant, AFCA and the Financial Firm. AFCA’s determination of the complaint is “final”, and binding on both parties if accepted by the complainant within 30 days of receipt (r A.15.3).

Notwithstanding the complainant’s right to elect not to accept AFCA’s determination, upon the submission of a complaint the parties in dispute are bound in contract to observe the Rules and entitled to require that AFCA proceed in accordance with them: Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185 at [35] (Mickovski); and Cromwell Property Securities Ltd v Financial Ombudsman Service Ltd [2014] VSCA 179; (2014) 288 FLR 374 at [78], [87] (Cromwell). See also Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 335-336 (McHugh JA).

As Ball J (the primary judge) held (Australian Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2021] NSWSC 1577 (the primary judgment or PJ)) at [4]:

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.

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” (Mickovski at [38] and fn 26, [41]). That will be the case if the outcome is one that no reasonable decision-maker could have reached. See also Cromwell at [86]-[89], [93], [256].

[Emphasis added]

47    In AgriWealth, at [22], the Full Court approved the above passages in ACFM v AFCA.

48    Thus, AFCA determinations are not susceptible to judicial review. The courts’ power to review a determination is therefore limited to adjudicating whether it was made in accordance with the terms of the parties’ contract, or to put it another way, whether the determination answers the contractual description of what AFCA was required to determine. This includes whether the determination is affected by fraud, dishonesty or lack of good faith. As has been explained, the conclusion can be drawn that the determination is not in accordance with the contract in the case of fraud, and a term of good faith and honesty would be implied: see Mickovski v Financial Ombudsman Service Ltd (2012) 36 VR 456; [2012] VSCA 185 at [38] and [41]; Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314 at 355–356 (McHugh JA); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 at [51]–[52] (Nettle JA, Maxwell P and Bongiorno AJA agreeing at [1] and [83]).

49    The Applicant focused on the Full Court’s finding in AgriWealth at [20], that the jurisdiction conferred on the Court under s 1337B(1) “runs in parallel with s 39B(1A)(c)”. The tripartite contract that comes into existence upon a complainant making a complaint to AFCA in respect of a financial services licensee is a contract that is enmeshed in the AFCA scheme which operates under the Corporations Act. As a result, so the Full Court held in AgriWealth at [31] and [37], this Court has jurisdiction to hear a dispute between the parties in relation to an AFCA decision as a matter “arising under” a Commonwealth law. Although the selected passage in AgriWealth, at [20], confirms this Court’s jurisdiction to hear a dispute in relation to an AFCA decision, it does not assist the Applicant because his claim is for judicial review.

50    The Applicant characterised the August Decision and the Objection Decision as “jurisdictional refusals operating as threshold determinations” that went to whether or not AFCA had authority, or jurisdiction, to consider the complaints made. Assuming the impugned decisions were jurisdictional refusals in the sense contended for by the Applicant, this does not change the analysis. A decision of AFCA is not reviewable even if the error in construing the AFCA Rules is said to be an error in construing its own jurisdiction: Mickovski at [50] and [51]; Patersons Securities Ltd v Financial Ombudsman Service Ltd (2015) 108 ACSR 483; [2015] WASC 321 at [94] (Mitchell J). Further, although the IA Decision may not be a “determination” within the AFCA Rules, the principles dictating that a determination is not subject to judicial review apply equally to it, recognising that the Independent Assessor is a part of AFCA and reports directly to its Board.

51    Before commencing the application, AFCA’s solicitors invited the Applicant to reconsider and to amend or discontinue the proceeding in its present form, which he declined to do. The nature of the claims that the Applicant wishes to pursue in respect of the AFCA Decisions was also raised with him at the hearing of the application. Although the Applicant was self-represented, he was able to articulate the claims which he wished to pursue in relation to AFCA’s Decisions and he confirmed that he sought to pursue only the claims set out in the Originating Application and Concise Statement. He repeated that he sought judicial review, and reiterated that he was not seeking merits review. He has not sought to bring a claim in contract, and he has not asserted a claim based on fraud, dishonesty or lack of good faith. In those circumstances, there is no basis to treat the Applicant’s claims as capable of being cured by amendment into a contractual claim.

52    Separately, I note that, although the Applicant’s application has all the hallmarks of an application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), his application was not brought under that Act and he did not rely on it. Furthermore, 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 Schedule 1. I am satisfied that each of the AFCA Decisions are decisions “making, or forming part of the process of making, or leading up to the making of, determinations under the AFCA scheme”, within the meaning of para (hba) of Schedule 1.

53    Consequently, relief in the nature of judicial review of AFCA determinations as sought by the Applicant is not available and the proceeding should be summarily dismissed: Cassimatis at [48]. Leave to amend will not be granted because the claims the Applicant wishes to pursue would have no reasonable prospects of success.

conclusion

54    For those reasons, I am satisfied that the Applicant’s application under s 39B of the Judiciary Act for judicial review of the AFCA Decisions has no reasonable prospect of success and the proceeding should be summarily dismissed.

55    The Applicant sought a protective costs order in the Originating Application and indicated that he wanted to be heard on the question of costs. AFCA sought an order that the Applicant pay its costs of the application, on which it has been successful. I will direct the parties to confer and, if possible, seek to reach agreement in relation to costs.

Associate:

Dated:    5 August 2026