Federal Court of Australia

Collie v Australian Financial Complaints Authority [2026] FCA 1425

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed 24 September 2026 is dismissed.

2.    The Applicant pay the Second and Third Respondents’ costs of and incidental to the interlocutory application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

INTRODUCTION

1    The Applicant (Ms Collie) has instituted an appeal against the determination of the First Respondent (Authority) made on 24 July 2026 (determination). The determination concerns two complaints Ms Collie made to the Authority. The determination affirmed the decision of the Third Respondent (Insurer) to decline her total and permanent disability claim, and that of the Second Respondent (Trustee) to agree with that decision. The claim was in respect of the group life policy of a superannuation fund of which Ms Collie is a member, which policy is held between the Trustee and the Insurer.

2    Ms Collie has filed an interlocutory application, which has come before me on an urgent basis in my capacity as duty judge. She seeks orders in the nature of interrogatories against the Authority and the Trustee and an order compelling the Trustee to process her requested partial rollover request with disability superannuation tax treatment under s 307-145 and s 995-1(1) of the Income Tax Assessment Act 1997 (Cth) (ITAA). The partial rollover request is for all but $10,000 of the money held by the superannuation fund. The effect of the tax treatment would be to increase the tax-free component of the superannuation benefit, which is only available for a “disability superannuation benefit”, as defined by s 307-145 of the ITAA. Should she succeed in her interlocutory application, Ms Collie also seeks an order that the Trustee pay her costs on an indemnity basis.

3    A threshold issue on the interlocutory application is the power of the Court to order the partial rollover request. If it is within the power of the Court and appropriate to grant that relief, there remains the question of whether the order ought to be made. That question requires consideration of the principles that apply on an application for a mandatory interlocutory injunction: see, eg, Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57.

power

4    The appeal is brought under s 1057 of the Corporations Act 2001 (Cth). Such an appeal may only be on a question of law and is brought within the original jurisdiction of the Court: Corporations Act, s 1057(1); Lynn v Australian Financial Complaints Authority [2025] FCA 175 at [15] (Banks-Smith J).

5    The power of the Court on hearing and determining such an appeal is not unlimited. Of present relevance, should the appeal be successful, the Court could only substitute its decision for that made by the Authority if the facts, as found by the Authority, admit upon the application of the law as laid down by the Court, of only one result: see Wan v BT Funds Management Limited [2022] FCA 302; (2022) 160 ACSR 81 at [35]-[39] (Anastassiou J) and the authorities there cited.

6    Section 1057A(2) of the Corporations Act empowers the Court, following the institution of an appeal, to make “such order or orders staying or otherwise affecting the operation or implementation of … the determination … as the Court thinks appropriate to secure the effectiveness of the hearing and determination of the appeal”. There is limited authority on the nature of the Court’s power under s 1057A. But, as was observed by Stewart J in Resolution Life Australasia Ltd v Teagle (Stay Application) [2023] FCA 1244 at [10] and [11], the scope of the power is, by its express terms, limited to securing the effectiveness of the hearing and the determination of the appeal: cf, Federal Court of Australia Act 1976 (Cth), s 29 and Federal Court Rules 2011 (Cth), r 36.08(2).

7    Ms Collie also relies on s 23 of the Federal Court Act. The Court has power under s 23 to make orders of such kinds, including interlocutory orders, as it thinks appropriate. Wide though the power is, the discretion of the Court to mould relief is not at large. Materially, the Court has the power to grant an interlocutory injunction under s 23 only if it can be said that such relief is in aid of the final relief sought in the proceeding: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [8]-[16] (Gleeson CJ) and at [91] (Gummow and Hayne JJ).

8    Insofar as it concerns interrogatories, Ms Collie relies on s 37P of the Federal Court Act. That section gives the Court power to make directions about the practice and procedure to be followed in relation to a proceeding including, amongst other matters, to “require things to be done”.

partial rollover request

9    I am not persuaded that the Court has the power to make the orders Ms Collie seeks regarding the partial rollover request.

10    The appeal is yet to be heard. Dependent on its outcome, it may be that the Court has the power to substitute its own decision for that made by the Authority: cf, Wan at [35]-[39]. But the power of the Court to grant interlocutory relief in respect of the appeal is limited to “such order or orders staying or otherwise affecting the operation or implementation” of the determination as are “appropriate to secure the effectiveness of the hearing and determination of the appeal”: Corporations Act, s 1057A(2).

11    As appears from its terms, the type of relief expressly contemplated by s 1057A of the Corporations Act are orders in the nature of stays. The relief Ms Collie seeks falls outside of that power because the effect of the partial rollover request, if ordered, would be to decide the appeal in respect of one of the complaints determined by the Authority. That is in circumstances where, should Ms Collie succeed on the appeal, there would remain the question as to whether the Court has the power to substitute its own decision for that made by the Authority, as opposed to remitting the complaint back to the Authority to be determined according to law.

12    Ms Collie argues that leaving $10,000 in the superannuation fund would ensure that the appeal remains unaffected by the partial rollover. The difficulty with that submission is that while there will remain money in the superannuation fund, the consequence of the partial rollover request, if ordered, will be to grant Ms Collie the relief sought in the appeal with respect to that complaint. It is not an order that would preserve the rights of the parties pending the determination of the appeal. Rather, it will, in effect, render part of the hearing of the appeal irrelevant because its practical consequence will have been to grant relief in her favour. It is not therefore, an order that is appropriate to securing the effectiveness of the hearing and determination of the appeal.

13    It is, in my view, at least doubtful that the Court has the power under s 23 of the Federal Court Act to make an order granting the partial rollover request, given the terms of s 1057A of the Corporations Act. When, as here, a specific statute invests the Court with jurisdiction in matters of a particular class and does so in a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court Act: see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 37 ALR 66 at p 73 (Gibbs CJ, Stephen, Mason and Wilson JJ).

14    In any event, the orders which the Court is empowered to make under s 23 of the Federal Court Act do not extend beyond orders that are “appropriate to the protection and enforcement of the right or subject matter in issue”: see Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at pp 620-621 (Brennan J). An order which is not necessary “to secure the effectiveness of the hearing and determination of the appeal” for the purposes of s 1057A(2) of the Corporations Act is not “appropriate” in the sense required to engage the Court’s power under s 23 of the Federal Court Act.

15    It follows that I refuse to make the order Ms Collie seeks regarding the partial rollover request.

interrogatories

16    As has been noted, Ms Collie also seeks orders in the nature of interrogatories. As against the Authority, Ms Collie seeks an order that it identify whether a particular issue (relating to a partial rollover) was before it and whether it determined or gave reasons for not determining that issue. As against the Trustee, Ms Collie seeks an order that it identify in writing whether it disputes certain material she relied upon in making the total and permanent disability claim and, if so, the reasons for that position, and also that it identify the material that the Trustee requires before it can process her partial rollover request and, if it does request material, why that information is required.

17    The object of interrogatories is to obtain admissions as to the facts which will support or damage the case of a party to obtain further and better particulars of a party’s case or to obtain accounts from a party occupying a fiduciary position. The administering and answering of interrogatories are a form of discovery. Interrogatories constituting a “fishing exercise” are not generally permissible: Austal Ships Pty Ltd v Incat Australia Pty Ltd (No 3) [2010] FCA 795; (2010) 272 ALR 177 at [6]-[8] (McKerracher J), in relation to O 16 of the Federal Court Rules 1979 (Cth).

18    This is not a proper case for the grant of interrogatories. The appeal is confined to a question of law. The answers Ms Collie seeks by interrogatories are as to questions of fact. Given that, I refuse to make the orders sought on the interlocutory application in the nature of interrogatories.

costs

19    The Trustee and the Insurer seek an order for their costs. Ms Collie seeks an order that costs be reserved. That is because the basis upon which she sought the partial rollover request mirrors the arguments that will be raised on the appeal. It follows, Ms Collie contends, that it is appropriate for the question of costs to be determined following the outcome of the appeal. Ms Collie also resists an order for costs on the basis that she is experiencing severe financial hardship, including homelessness.

20    I am not persuaded that it is appropriate to reserve costs. The partial rollover relief request was refused on a threshold basis, that the Court does not have the power to grant that relief. As such, the “merits” of the partial rollover request were not argued. The “event” that has led to that relief being refused is unconnected to the issues that may ultimately be argued, heard and decided on the appeal. And Ms Collie has otherwise been unsuccessful in seeking orders in the nature of interrogatories.

21    Ms Collie’s personal circumstances are understandably a cause of distress to her. Notwithstanding, the fact that a litigant is self-represented or impecunious does not provide a reason to depart from the usual order that costs should follow the event: see Sayed v National Disability Insurance Agency [2025] FCAFC 40 at [23] (Rangiah, McElwaine and Horan JJ) and the authorities there cited. This reflects that costs orders are directed to compensating the successful party on an application, not punishing the unsuccessful party. Given those matters, and in the absence of any other reason that could warrant the exercise of the discretion not to make orders as in the ordinary course, I will order that Ms Collie pay the costs of the Insurer and the Trustee on the interlocutory application, which costs are to be assessed if they cannot be agreed.

Associate:

Dated:    2 October 2026