AgriWealth Capital Limited v Australian Financial Complaints Authority Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 28 July 2023
• Neutral Citation: [2023] FCAFC 118
• Date: 28 July 2023
• Court: Full Federal Court (Australia)

Federal Court of Australia

AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2023] FCAFC 118

Appeal from:	AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2022] FCA 1336
File number(s):	NSD 1083 of 2022
Judgment of:	PERRY, DOWNES AND KENNETT JJ
Date of judgment:	28 July 2023
Catchwords:	ADMINISTRATIVE LAW – where the Australian Financial Complaints Authority Limited (‘AFCA’) determined that the second respondent’s complaint was partially within the Australian Financial Complaints Authority Complaint Resolution Scheme Rules – where the appellants contended that AFCA did not have jurisdiction to determine the complaint – appeal from decision of primary judge that AFCA had jurisdiction – appeal dismissed
Legislation:	Constitution s 76(ii) Airports (Transitional) Act 1996 (Cth) s 22 Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4 Corporations Act 2001 (Cth) ss 140(1), 601FA, 761A, 912A(1)(g)(i), 912A(1)(j), 912A(2), 912A(5A), 915C(1)(a), 1050, 1051, 1051A, 1052D, 1337A(2)(b), 1337B, Parts 7.6 and 7.10A Customs Act 1901 (Cth) Judiciary Act 1903 (Cth) s 39B Superannuation (Resolution of Complaints) Act 1993 (Cth) s 14 Corporations Regulations 2001 (Cth) reg 7.6.03C
Cases cited:	AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2022] FCA 1336 Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2022] NSWCA 204; 164 ACSR 215 DH Flinders Pty Ltd v Australian Financial Complaints Authority Limited [2020] NSWSC 1690 Felton v Mulligan (1971) 124 CLR 367 Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd [2006] FCA 1805; 157 FCR 229 Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; 96 ALJR 234 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 Merkel v Superannuation Complaints Tribunal [2010] FCA 564 Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285; 365 FLR 163 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; 407 ALR 187 Vision Super Pty Ltd v Poulter [2006] FCA 849; 154 FCR 185
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	69
Date of hearing:	4 May 2023 and 28 June 2023
Counsel for the Appellants:	Mr J Ireland KC
Solicitor for the Appellants:	McGirr Lawyers
Counsel for the First Respondent:	Mr M Izzo SC with Mr M Pulsford
Solicitor for the First Respondent:	Becketts Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a Submitting Notice
Counsel for the Contradictor:	Ms J E Davidson with Mr J Cooper

ORDERS

		NSD 1083 of 2022
BETWEEN:	AGRIWEALTH CAPITAL LIMITED First Appellant ; AUSTRALIAN FORESTRY MANAGEMENT PTY LIMITED Second Appellant
AND:	AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY LIMITED First Respondent ; STEVEN KIRBY Second Respondent

order made by:	PERRY, DOWNES AND KENNETT JJ
DATE OF ORDER:	28 JULY 2023

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1. AgriWealth Capital Limited (ACL) and Australian Forestry Management Limited (AFM) appeal from the whole of the judgment and orders made by the primary judge on 10 November 2022: AgriWealth Capital Limited v Australian Financial Complaints Authority Limited [2022] FCA 1336 (J).

2. The Australian Financial Complaints Authority Limited (AFCA) is the first respondent and Mr Steven Kirby is named as the second respondent in this appeal. Both at first instance and in the appeal, AFCA has taken an active role, but Mr Kirby has not.

3. For the following reasons, the appeal should be dismissed.

Relevant background

4. Since 2006, ACL has held Australian Financial Services Licence (AFSL) No. 317238 which authorises it to carry on a financial services business in the capacity of a responsible entity, relevantly, to operate certain registered managed investment schemes, including the “Australian Forestry Management 2005 Land Trust” (2005 Land Trust) scheme and the “Australian Forestry Management 2005 Plantation Investment” (2005 Plantation Investment) scheme, which together comprised the Australian Forestry Management 2005 Softwood Project.

5. AFM does not hold an AFSL and is not a member of AFCA.

6. AFCA operates the external dispute resolution scheme which financial services licensees are required to be members of under Parts 7.6 and 7.10A of the Corporations Act 2001 (Cth) (Corporations Act). The statutory regime under which that occurs is discussed in more detail below.

7. In accordance with AFCA’s Constitution, AFCA adopts rules for complaints “for resolving complaints in or regarding the Industry”, which means “the financial services, and superannuation industries and any similar or related or associated industries in which the Members and their Related Bodies Corporate carry on business”. AFCA members are bound by the rules that apply to a member in respect of a complaint, which, together with AFCA’s Constitution, form a binding contract between each member and AFCA.

8. The Australian Financial Complaints Authority Complaint Resolution Scheme Rules (AFCA Rules) are dated 25 April 2020 and are summarised at [46]–[55] J. A person who submits a complaint to AFCA (a Complainant) is deemed to have agreed to have the complaint considered under the AFCA Rules, which form part of a contract between AFCA, ‘Financial Firms’ and Complainants (rr A.1.2 and A.3.1). A Financial Firm means, relevantly, a person who is a member of AFCA: r E.1.1.

9. 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 Limited [2020] NSWSC 1690 at [12], [54]; see also Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285; 365 FLR 163 (Notesco) at [127].

10. Sections B and C of the AFCA Rules relate to AFCA’s jurisdiction to resolve complaints.

11. Mr Kirby was an investor in the 2005 Land...