Federal Court of Australia

Hamid v Australian Financial Complaints Authority [2026] FCA 1587

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

MOORE J

Introduction

1    These reasons concern an objection to competency filed by the respondent, the Australian Financial Complaints Authority (AFCA), in relation to proceedings commenced against it by the applicant, Mr Yahya Hamid, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). By originating application for judicial review dated 16 December 2025, Mr Hamid seeks various orders against AFCA (including procedural orders) under various provisions of the ADJR Act in relation to a decision by AFCA on 19 November 2025 refusing to entertain a complaint that Mr Hamid had made to AFCA against National Australia Bank Limited (NAB), of which he was a customer.

2    Mr Hamid’s initiating process is an originating application for judicial review (the OAJR), in the form of Form 66 and stating that it is brought under r 31.01(1) of the Federal Court Rules 2011 (Cth) (FCR). Rule 31.01(1) concerns applications brought under the ADJR Act. The only respondent is AFCA. Mr Hamid did not join NAB to the proceeding.

3    The OAJR states that it is an application for review of:

the decision of the Respondent that dismissed Complaint 12-25-286073 on 19 November 2025 under AFCA Rule B.4.3.1(a) and refused to exercise discretion to extend time under Rule B.4.4.2.

4    Under the heading “Details of Claim”, the OAJR states:

The Applicant seeks judicial review of the Respondent’s decision on the grounds that the Decision Maker committed jurisdictional error, denied the Applicant procedural fairness, and erred in law by failing to properly exercise the discretion conferred by the AFCA Rules.

5    Under the heading “Grounds of Application”, the OAJR states, inter alia (emphasis added):

The grounds of review relied upon arise under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and include:

1.    Jurisdictional Error

(ADJR Act ss 5(1)(c), 5(1)(d))

AFCA misapplied its own Rules, including Rule B.4.3.1(a), and failed to properly consider the Date of Discovery principle, thereby failing to exercise jurisdiction over an open dispute that was not time-barred.

2.    Denial of Procedural Fairness

(ADJR Act ss 5(1)(a), 5(1)(b))

The Applicant was denied a genuine opportunity to be heard, including through: [various matters are then set out]

3.    Improper Exercise of Power

(ADJR Act ss 5(1)(e), 5(2)(c))

The Respondent exercised its powers for an improper purpose, including institutional self-protection and procedural closure, rather than lawfully considering the Applicant’s complaint.

4.    Error of Law

(ADJR Act ss 5(1)(f), 5(2)(g))

The decision was based on an unreliable and corrupted administrative record, constituting legal unreasonableness under established principles […]

5.    Failure to Properly Exercise Statutory Discretion

(ADJR Act ss 5(1)(e), 5(2)(f), 5(2)(j))

The Respondent failed to properly exercise the discretion under Rule B.4.4.2 to extend time, considering all relevant circumstances, including concealment by the Bank and the Applicant’s vulnerability.

6    Thus Mr Hamid’s proceeding is purportedly brought pursuant to the ADJR Act (only). It is a judicial review proceeding that seeks to impugn AFCA’s handling of his complaint by reference to various grounds under the ADJR Act.

7    Mr Hamid has also filed a statement of claim. That is a brief document, the substance of which is less than two pages. It also refers to grounds of judicial review and refers to the ADJR Act. However, this document also refers to the proceeding being brought in the original jurisdiction of this Court pursuant to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). There is no articulation of any separate claim for relief under the Judiciary Act. I note the OAJR is not an application under the Judiciary Act and does not mention that Act.

8    By notice of objection to competency filed on 26 February 2026, AFCA objects to the competency of Mr Hamid’s application.

9    Given the objection to competency, it is necessary to consider that objection at the outset and before dealing with any other substantive issues in the proceeding, including the merits of Mr Hamid’s case.

Background

10    Mr Hamid is a litigant in person. He has limited proficiency in English and has appeared in Court through an interpreter. Despite this, some of the written materials presented by him in this proceeding (including the written submissions on this application) have been of a reasonably high quality, presumably with the assistance of an artificial intelligence tool.

11    In support of his claims, Mr Hamid has presented a significant volume of evidence before the Court documenting his complaint to AFCA and his anterior complaints through NAB’s internal processes. As is apparent from Mr Hamid’s evidence and submissions, including his oral submissions at the hearing, there is a significant level of disagreement as to the circumstances giving rise to his complaint, the handling of his complaint by both NAB and AFCA, and the characterisation of various actions taken by both NAB and AFCA. Mr Hamid says that this material reveals, among other things, ‘administrative inconsistencies’ in the handling of his complaint by both NAB and AFCA, which are said to be relevant to his grounds of review in the substantive proceedings and the relief sought.

12    For present purposes, it is sufficient to set out the history of Mr Hamid’s complaint in relatively brief terms. The summary is not intended to resolve any of the factual disagreements between the parties and is not intended to be any complete account of the issues that arise on Mr Hamid’s substantive complaint about AFCA’s conduct. Further, it is not intended to amount to concluded factual findings about any of these matters, noting that some of the allegations may be subject to dispute in due course.

13    Between February and April 2019, Mr Hamid suffered very significant financial losses as a result of an investment scam. These losses comprised charges incurred on Mr Hamid’s credit card and the transfer of funds out of his day-to-day spending account, both of which were held with NAB.

14    On 19 April 2019, Mr Hamid complained to NAB that these transactions were unauthorised and should have been flagged as suspicious or fraudulent, or otherwise not permitted to occur. Mr Hamid identifies ten reference numbers said to relate to complaints made by him or his wife to NAB between that date and 9 July 2025, all in relation to the same circumstances or NAB’s response to earlier complaints. There is some factual disagreement as to the relationship between these complaints and whether each of these complaints remained on foot or were closed.

15    On 19 August 2025, Mr Hamid submitted a complaint to AFCA through the complaints handling facility on AFCA’s website (the AFCA Portal). In submitting this complaint through the AFCA Portal, Mr Hamid indicated that he agreed that AFCA would consider his complaint “in accordance with the AFCA rules”.

16    AFCA is authorised by the Corporations Act 2001 (Cth) (Corporations Act) to operate an external dispute resolution scheme in relation to financial services complaints, including complaints concerning superannuation, the National Credit Code, and financial institutions (the AFCA Scheme). Under Parts 7.6 and 7.10A of the Corporations Act, financial services licensees are required to be members of the AFCA Scheme. Sections 1051 and 1052 of the Corporations Act require AFCA to ensure the AFCA Scheme complies with a number of mandatory requirements, which include organisational requirements, operator requirements and operational requirements. The AFCA rules referred to in the AFCA Portal are a set of rules governing the AFCA Scheme.

17    At the time of Mr Hamid’s complaint, the AFCA Scheme was operated in accordance with an iteration of the Australian Financial Complaints Authority Complaint Resolution Scheme Rules dated 1 July 2024 that had been approved by the Australian Securities and Investments Commission (ASIC) under s 1052D of the Corporations Act (the AFCA Rules). Any “material changes” to the AFCA Rules require approval from ASIC.

18    On 19 November 2025, AFCA conveyed a final decision to Mr Hamid that his complaint was time-barred as a result of r B.4.3.1 of the AFCA Rules (the Decision). The relevant rule is in the following terms:

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.

19    In general terms, Mr Hamid alleges that AFCA improperly applied the AFCA Rules by mischaracterising the timing of his complaint, and denied him a fair opportunity to respond to NAB.

The objection to competency

20    By notice of objection to competency dated 26 February 2026, AFCA objects to the competency of the OAJR. The objection is made pursuant to r 31.05 of the FCR. Division 31.1 of the FCR concerns applications under the ADJR Act and r 31.05 deals with objections to the competency of such applications. It is in the following terms:

Notice of objection to competency

(1)    A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

(a)    in accordance with Form 68; and

(b)    that, briefly but specifically, states the grounds of the objection.

(2)    The applicant carries the burden of establishing the competency of an application.

(3)    A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

(4)    If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as not competent, the respondent is not entitled to any costs of the application.

(5)    If the Court decides that an application is not competent, the application is dismissed.

21    The purpose of r 31.05 is to permit jurisdictional issues to be identified, notified to an applicant and decided as a threshold question: Maysan Holdings Pty Ltd v National Disability Insurance Agency [2025] FCA 628 at [43] (Kennett J); see also Patrick v Australian Information Commissioner [2022] FCA 1123 at [11] (Wheelahan J).

22    The jurisdictional issue identified by AFCA is whether the Decision impugned by Mr Hamid is reviewable under the ADJR Act. For the purpose of addressing that question, it is unnecessary to consider the detail of the Decision, or Mr Hamid’s complaints about AFCA’s decision-making process. The relevant question is the legal characterisation of the Decision and whether the Court has jurisdiction to engage in judicial review of the Decision.

23    AFCA submits that on a proper characterisation of the Decision it is a determination pursuant to the tripartite contract formed between AFCA, NAB and Mr Hamid, as contemplated by rr A.1.2 and A.3.1 of the AFCA Rules.

24    AFCA submits that, as a result of its contractual character, AFCA’s decision is not a decision made “under an enactment” and is therefore not a decision within the meaning of s 3(1) of the ADJR Act which the Court has jurisdiction to review.

25    AFCA says further, and alternatively, that the Decision is of a class to which the ADJR Act explicitly does not apply, falling within para (hba) of Sch 1 to the ADJR Act:

Classes of decisions that are not decisions to which this Act applies

…

(hba)    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 the Corporations Act 2001);

26    Decisions listed in Sch 1 are excluded from the class of decisions to which the ADJR Act applies by operation of the definition “decision to which this Act applies” in s 3 of the ADJR Act.

27    AFCA submits that its Decision that Mr Hamid’s complaint was out of time is sufficiently connected with the final determination of a complaint under the AFCA Scheme, so as to fall within the meaning of para (hba), referring to the interpretation of the requirement of “decisions making, or forming part of the process of making, or leading up to the making” of particular kinds of decisions.

28    AFCA also submits that the Decision is not amenable to judicial review under s 39B of the Judiciary Act, which is referred to in Mr Hamid’s statement of claim and submissions (though not his OAJR). The reason for this is the contractual character of the Decision (as set out above) and AFCA’s status as a corporation limited by guarantee, with the result that its employees are not “officers of the Commonwealth”. AFCA relies in particular on the fact that AFCA employees are not appointed to any statutory office, are not public servants, and exercise power derived from the tripartite contractual relationship between a complainant, AFCA and a financial firm participating in the AFCA Scheme.

29    Mr Hamid’s submissions include the following:

7.    The Respondent’s submissions are confined to establishing that its Decision is not reviewable under the ADJR Act, whether because it is not a decision “made under an enactment” (Submissions at [19]–[21]), or because, even if it were, it would be excluded by para (hba) of Sch 1 to that Act (Submissions at [22]–[26]).

8.    The Applicant accepts, for the purposes of these submissions, that this characterisation may be correct in respect of the ADJR Act specifically. However, the Respondent’s submissions do not address the independent and broader jurisdiction conferred upon this Court by s39B(1A)(c) of the Judiciary Act 1903 (Cth).

30    Mr Hamid thus accepts AFCA’s submissions concerning the ADJR Act, but seeks to support the Court’s jurisdiction to hear his case by reference to s 39B(1A)(c) of the Judiciary Act. Section 39B(1A)(c) is in the following relevant terms:

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

31    Mr Hamid submits that AFCA’s characterisation of its relationship with complainants “as arising under a tripartite contract provides an alternative and independent basis upon which this Court’s jurisdiction is engaged.” He refers to a 2016 report of the Australian Law Reform Commission which, in the context of its broader consideration of legislative restrictions on judicial review, observes that the decisions exempted from judicial review under Sch 1 to the ADJR Act can still be reviewed under s 39B(1A)(c) of the Judiciary Act:

A number of stakeholders submitted that limits on access to the ADJR Act in the form of the list of decisions exempted from review under the Act should be considered as part of this Inquiry. While consideration has been given to this issue, it is important to note that under s 39B(1A)(c) of the Judiciary Act [1903] (Cth) (Judiciary Act) a person still has access to the courts to review a decision exempted under sch 1 of the ADJR Act. Accordingly, this chapter does not focus on decisions exempted from review under the ADJR Act.

32    Mr Hamid submits that the Decision was made by AFCA in the context of the AFCA Scheme which is authorised and provided for by the Corporations Act, with the effect that the Decision is “arising under” Commonwealth legislation (being the Corporations Act) within the meaning of s 39B(1A)(c).

Consideration

33    The starting point in considering AFCA’s objection to competency is Mr Hamid’s OAJR dated 16 December 2025, being the application to which AFCA objects.

34    As observed earlier, the OAJR is stated to be an application under the ADJR Act (only). I note that apart from procedural relief (such as discovery), the substantive relief sought in the OAJR is certiorari and mandamus. Under the heading “certiorari”, Mr Hamid seeks an order quashing the Decision of 19 November 2025 dismissing the complaint. Under the heading “mandamus”, Mr Hamid seeks an order compelling AFCA to reopen the complaint, exercise its power to require NAB to produce documents, proceed with a full merits review conducted by a different AFCA decision-maker, apply the correct test for the commencement of the limitation period, and “fairly and in good faith” consider the discretion to extend time.

35    The proceeding as constituted is plainly a proceeding seeking judicial review. It is stated to be under the ADJR Act although it seeks prerogative writs.

36    Once a complaint is made to AFCA, the AFCA Rules form a binding tripartite contract between AFCA, the financial entity and the complainant: rr 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) (AgriWealth); 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).

37    In ACFM v AFCA, Bell CJ and Meagher JA described the legal character of a decision pursuant to the AFCA Rules in the following terms (at [7]–[8]) (citations omitted):

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.

38    Likewise, in AgriWealth at [9], the Full Court observed:

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: DH Flinders Pty Ltd v Australian Financial Complaints Authority Ltd [2020] NSWSC 1690 at [12], [54]; see also Notesco Pty Ltd v Australian Financial Complaints Authority Ltd (2022) 365 FLR 163 (Notesco) at [127].

39    A consequence is that challenges to a determination made by AFCA under the AFCA Scheme should be brought as a contractual claim in reliance on the AFCA Rules, rather than judicial review proceedings of the kind commenced by Mr Hamid. In ACFM v AFCA at [9]–[10], Bell CJ and Meagher JA observed:

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].

40    These matters were also discussed in the recent decision of EE26 v Australian Financial Complaints Authority Ltd [2026] FCA 1057 (Neskovcin J) (EE26), which concerned a factual situation somewhat similar to the present, in that AFCA determined that the applicant’s complaint fell outside the time limit and that “special circumstances” did not apply.

41    The Court does not have jurisdiction to hear Mr Hamid’s application under the ADJR Act, as Mr Hamid appears to accept. That is for two reasons.

42    The first is that, as a result of its contractual character, AFCA’s Decision is not a decision made “under an enactment” and is therefore not a decision within the meaning of s 3(1) of the ADJR Act which the Court has jurisdiction to review under that Act. As noted by AFCA, this was recognised in the Explanatory Memorandum for the Bill which inserted the AFCA Scheme into the Corporations Act, which stated that the ADJR Act will not apply to determinations by AFCA in relation to financial disputes “because those determinations would not be made under an enactment”.

43    Secondly, the Decision is of a class to which the ADJR Act explicitly does not apply, falling within para (hba) of Sch 1 to the ADJR Act:

Classes of decisions that are not decisions to which this Act applies

…

(hba)    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 the Corporations Act 2001);

44    The present Decision falls within this description. The same view was expressed by Neskovcin J in EE26 at [52].

45    Therefore, the Court does not have jurisdiction to review the Decision under the ADJR Act.

46    I observe that even if the OAJR could be construed so as to include a claim relying on s 39B of the Judiciary Act (and I do not think it can, because it expressly states that it is brought under the ADJR Act), the Court does not have jurisdiction to hear such a proceeding for judicial review. As was observed in AgriWealth at [20]:

By force of s 1337B(1) of the Corporations Act, the Federal Court has civil jurisdiction in “civil matters arising under the Corporations legislation”. The “Corporations legislation” is defined in a way that includes the Corporations Act itself. Division 9.6A of the Corporations Act, in which s 1337B is found, operates to the exclusion of s 39B of the Judiciary Act 1903 (Cth): s 1337A(2)(b). Section 1337B is therefore the only potential source of jurisdiction. However, it runs in parallel with s 39B(1A)(c) in that it confers jurisdiction in matters “arising under” a Commonwealth law. Conferral of federal jurisdiction in these terms is authorised by s 76(ii) of the Constitution, which refers to matters “arising under any laws made by the Parliament”.

47    Therefore, s 39B of the Judiciary Act is not an available source of jurisdiction. However, even if Mr Hamid’s references to s 39B in his submissions and statement of claim were somehow to be read as a reference to s 1337B of the Corporations Act, the Decision is not susceptible to judicial review of the type pursued by Mr Hamid: ACFM v AFCA at [9]–[10], cited with approval in AgriWealth at [22]. The same issue was discussed in some detail by Neskovcin J in EE26 at [43]–[53]. There would be no utility in permitting Mr Hamid to amend the OAJR to include a claim under s 39B of the Judiciary Act or s 1337B of the Corporations Act.

48    For the reasons discussed in AgriWealth at [23]–[37], the Court may potentially have jurisdiction to deal with a differently constituted proceeding, being a contractual claim under the tripartite contract alleging that the Decision was not made in accordance with the parties’ contract. However, no such claim has been articulated in Mr Hamid’s OAJR which, both in substance and form, seeks judicial review. Mr Hamid’s claim is quite clearly an application for judicial review seeking traditional judicial review remedies. I deal separately below with the question of whether Mr Hamid should be permitted an opportunity to reconstitute his proceeding, rather than it being dismissed.

49    As the applicant in this proceeding, Mr Hamid carries the burden of establishing the competency of his application: r 31.05 of the FCR. I do not consider Mr Hamid has discharged that burden by referring to the theoretical possibility of a new and different claim. Even if I were to accept his submissions that such an application would be competent, this would not determine whether his present application, to which AFCA has objected, is competent.

50    In these circumstances, Mr Hamid’s OAJR is not competent, and AFCA’s objection to competency should be allowed.

Should Mr Hamid be permitted to reconstitute his case

51    In EE26, at [51], Neskovcin J noted that the applicant in that case had not sought to bring any alternative claim in contract. Her Honour noted that the applicant had been invited by AFCA to reconsider his claim and had declined, had reiterated that the claims he wished to bring were the claims set out in his originating application, and had repeated that he sought judicial review not merits review.

52    In the present case, the position is different in that (as described below) Mr Hamid has indicated a desire to amend his claim.

53    That arose in the following way. At no time prior to the hearing of AFCA’s objection to competency did Mr Hamid indicate any intention to seek to amend his claim. However, the question of amendment was raised by AFCA (and by me) at the hearing. AFCA offered to provide a note as to any additional authorities that could be identified as to whether the Court could grant leave to amend or reconstitute the claim when a claim had been found to be incompetent, and I granted leave to provide that note. A short note was subsequently provided, consistent with that leave. After that note was provided, Mr Hamid sought and obtained leave to provide a short responsive submission, which was duly filed.

54    In its supplementary note, AFCA acknowledges that there is authority to the effect that leave to amend an application or appeal could be granted upon a finding that the application or appeal was incompetent. AFCA refers to Steele v Host-Plus Pty Ltd [2025] FCA 668, where in light of a finding that an appeal under s 1057 of the Corporations Act was incompetent, Halley J (at [37]–[38]) proceeded to consider whether the notice of appeal could be recast as raising seriously arguable questions of law, observing:

For these reasons, the notice of appeal is defective, and the appeal cannot proceed on that pleading.

The issue then becomes should the appeal be dismissed or should the notice of appeal be struck out and the applicant be given leave to file an amended notice of appeal. The answer to that question turns on whether, after taking into account that the applicant is a litigant in person, it is possible to identify that, in substance, and read fairly as a whole, the notice of appeal raises matters that could be recast as raising seriously arguable questions of law.

55    AFCA submits that such leave should only be granted where an objection to competency was upheld on the basis of substantive or procedural incompetence, rather than want of jurisdiction. AFCA refers to cases where the Court suggested the possibility of granting leave to amend the identity of parties to an application, but declined to do so because of a successful objection to competency based on the Court’s jurisdiction: Parker v Vivian [2009] FCA 933 at [28] (McKerracher J); Parker v Antoine [2009] FCA 929 at [32] (McKerracher J). AFCA also refers to decisions in other contexts where, upon upholding a notice of objection to competency, the Court did not consider or raise the possibility of amendment at all: Wecker v Anti-Discrimination Board of New South Wales [2013] FCA 1167 at [14]–[15] (Farrell J).

56    AFCA submits that the most analogous case is Qing Quan Yao v Department of Education, Employment and Workplace Relations [2010] FCA 18 (Perram J) (Yao), which concerned an objection to the competency of an appeal from the Administrative Appeals Tribunal. In that case there was a dispute about the characterisation of the appeal in question. Having accepted the respondent’s characterisation of the appeal, with the result that the appeal was incompetent, Perram J proceeded to consider the merits of the applicant’s alternative characterisation of the claim, in order to determine whether the applicant should be granted leave to put on an amended application (at [17]–[18], [20]), stating:

… I cannot accede to Mr Yao’s submission that his notice of appeal is anything but that which it appears to be, namely, an appeal pursuant to s 44 of the AAT Act.

That being so the appeal is clearly incompetent …

…

During the course of the oral argument Mr Yao sought to outflank the Secretary’s submission by seeking to recharacterise the notice of appeal as an application pursuant to the ADJR Act or s 39B of the Judiciary Act.  I have already rejected that argument.  However, it is appropriate to consider whether any such a case might have merit because, if so, the appropriate course might well be to strike out the notice of appeal but grant leave to put on an amended document.  I leave to one side procedural questions such as whether a proceeding originally constituted as an appeal under the AAT Act can be struck out and reformulated as an application under the ADJR or s 39B of the Judiciary Act.

57    In the circumstances, Perram J declined to grant leave as the necessary parties for the judicial review application had not been joined, and the application did not articulate any arguable grounds of judicial review (at [21]–[25]).

58    In his responsive submission, Mr Hamid made the following submission:

D.    The Respondent’s Critical Concession at Paragraph 8

5.    At paragraph 8, the Respondent expressly acknowledges that if the matter were properly pleaded as a breach of contract claim under section 1337B, it would fall within jurisdiction.

6.    This concession establishes that the dispute is capable of falling within jurisdiction, that any defect is one of form rather than substance, and that amendment is the correct procedural mechanism.

7.    The respondent cannot simultaneously concede that the claim would be within jurisdiction if properly pleaded, while also opposing the very amendment that would achieve that result.

E.    Leave to Amend is Procedurally Appropriate.

8.    Denying the Court the opportunity to consider leave to amend would convert a curable procedural defect into an absolute jurisdictional bar, contrary to the Respondent’s own concession and the principles in ATQ16 and Steele. Procedural fairness requires that leave to amend be considered before any final determination of competency.

F.    Conclusion

9.    The Applicant respectfully submits that the Court has full authority to consider whether leave to amend is appropriate before determining competency consistent with the authorities cited by the Respondent.

59    I take this to be a request for leave to amend. I note, however, that neither this submission, nor anything prior to this submission, identifies the particular contractual claim that Mr Hamid wishes to bring, or how it would be put, even at a level of generality let alone specificity.

60    The question which arises is whether I should, as Mr Hamid seeks, postpone ruling on the question of competency until Mr Hamid has had an opportunity to seek to reformulate his claim or, alternatively, strike out the OAJR but permit Mr Hamid an opportunity to seek to file a revised originating process rather than dismissing the application.

61    I have concluded that the present case is not one where Mr Hamid should be given some opportunity to seek to reconstitute his proceedings. That is so for a number of reasons.

62    First, there is no suggestion that any limitation period has expired. The Decision being attacked was made on 19 November 2025. Mr Hamid’s application to AFCA was commenced on 19 August 2025. The only prejudice to Mr Hamid from having to file a new proceeding is potentially the need to pay an additional filing fee, although I note that Mr Hamid obtained a filing fee waiver for the present proceeding, so even this might not be relevant prejudice.

63    Secondly, as was the case in Yao, the present proceedings are not correctly constituted for the case Mr Hamid apparently wishes to run. The present proceedings are against AFCA alone. In seeking to enforce a tripartite contract, NAB, as a party to that tripartite contract, would likely be a necessary party. Any contractual relief sought in those proceedings, if obtained, would affect the rights of NAB. NAB may, for example, seek to enforce the time limitation in the AFCA Rules, being something that potentially benefits NAB. If Mr Hamid was to seek to join NAB to the present proceedings, NAB would have a right to be heard on that application. It is not unlikely that NAB would oppose that joinder, requiring a contested application with additional costs for all parties, as well as delay. By contrast, if Mr Hamid was to commence a new proceeding he could choose to join NAB. (I note that if Mr Hamid is joining NAB, then of course he may choose to raise his actual underlying complaint against NAB, rather than just litigating over the conduct of an alternative dispute resolution process designed, in part, to avoid litigation).

64    Thirdly, Mr Hamid has not yet formulated any alternative proceeding, or even articulated what claim would be brought and on what basis. An alternative proceeding is therefore entirely speculative at this stage.

65    Fourthly, any amended proceedings would be completely different from the existing proceedings. The present proceeding is an application for judicial review. The revised proceedings would be a claim for breach of contract, and against an additional party. In this Court, it would need to be commenced in a different form, with a conventional originating application and a statement of claim, pleading the matter in a proper and conventional way. Seeking to graft a breach of contract claim onto an existing judicial review claim is unwieldy and unnecessary (if even permissible). Mr Hamid would need leave to reconstitute his proceedings in this way, and AFCA (and presumably NAB) may wish to oppose any such leave, including by arguing about the form of the revised originating process and statement of claim. Again, this would likely involve further disputation and costs, as well as delay.

66    Fifthly, a pure claim for breach of contract is a claim that is not naturally or usually brought in this Court. As noted above, there is authority (AgriWealth) to support the contention that this Court has jurisdiction, but that jurisdiction might nevertheless be challenged. Mr Hamid may choose to bring his claim in a court where there is no shadow at all over whether there is jurisdiction to hear a claim for breach of contract.

67    In all the circumstances, the course suggested by Mr Hamid would almost certainly involve additional costs and delay for all parties. It would be inefficient and wasteful, and inconsistent with s 37M of the Federal Court of Australia Act 1977 (Cth). It would require the Court and the parties to address the question of whether Mr Hamid should now be permitted awkwardly to insert some contract claim against an existing party and a new party into an existing judicial review proceeding, with the need to consider leave to amend and entirely recast the originating process, leave to add a new respondent, and leave to file a proper statement of claim. By contrast, if the claim is simply dismissed, Mr Hamid (if he wishes) can formulate a proper claim in his own time and choose where to bring it.

68    Having regard to all these matters, the proceeding should simply be dismissed. None of the substantive issues raised by Mr Hamid has been determined on the merits, and so this is not a barrier to the commencement of a fresh proceeding that is differently constituted and does not seek judicial review.

69    In relation to costs, Mr Hamid’s proceeding was misconceived from the outset and was subject to an appropriate objection to competency at an early stage from AFCA. It is therefore appropriate that he pay the costs of the proceeding.

Associate:

Dated:    26 October 2026