MetLife Insurance Limited v Australian Financial Complaints Authority (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 20 July 2022
• Neutral Citation: [2022] FCA 849
• Date: 20 July 2022
• Court: Federal Court

Federal Court of Australia

MetLife Insurance Limited v Australian Financial Complaints Authority (No 3) [2022] FCA 849

File number:	NSD 747 of 2019
Judgment of:	COLVIN J
Date of judgment:	20 July 2022
Catchwords:	PRACTICE AND PROCEDURE - Hardiman principle - whether principle applies to Australian Financial Complaints Authority (AFCA) - where applicant sought declaratory relief that determinations by AFCA were beyond jurisdiction - where AFCA raised additional defences of acquiescence, estoppel and the making of ad hoc agreements in answer to applicant's claim - whether bringing of additional defences conformed to the Hardiman principle - observations on the nature of the role of AFCA ; COSTS - where applicant sought declaratory relief that determinations by AFCA were beyond jurisdiction - where AFCA brought cross-claim to enforce determinations - where AFCA raised additional defences - where applicant failed and orders sought on cross-claim were made - where substantive issue in dispute was issue of jurisdiction on which AFCA's proper role was to assist the court - where additional defences were not matters for AFCA to raise - whether any analogy to arbitration - no order as to costs
Legislation:	Corporations Act 2001 (Cth) ss 911A, 912, 912A, 1050, 1051, 1052, 1054A Federal Court of Australia Act 1976 (Cth) s 43 Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth)
Cases cited:	AIT18 v Australian Information Commissioner [2018] FCAFC 192; (2018) 267 FCR 93 ARI v WXJ [2022] EWHC 1543 Bankstown City Radio Co-Operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 Cairns Port Authority v Albietz [1995] 2 Qd R 470 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Dilatte v MacTiernan [2002] WASCA 100 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Freedom Pharmaceutical Pty Ltd v Minister for Health (No 2) [2021] FCA 1250 Gray v Richards (No 2) [2014] HCA 47 Harding v Her Worship Ms B Lane SM [2001] WASCA 37 Hastwell v Legal Services Commissioner [2021] NSWCA 20 Investors Exchange Limited v Australian Financial Complaints Authority Limited [2020] QSC 74 K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd [1992] QB 863 Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113 Lawrie v Lawler (No 2) [2016] NTCA 4 MetLife Insurance Limited v Australian Financial Complaints Authority [2022] FCA 23 Muin v Refugee Review Tribunal [2002] HCA 30 Muswellbrook Shire Council v Hunter Valley Energy Pty Ltd [2019] NSWCA 216 Norbis v Norbis (1986) 161 CLR 513 Ogawa v Australian Information Commissioner [2014] FCA 229 Oshlack v Richmond River Council (1998) 193 CLR 72 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609 Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446 QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55; (2020) 276 FCR 97 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 TXU Electricity Limited v Officer of the Regulator General [2001] VSC 4; (2001) 3 VR 93 Utopia Financial Services Pty Ltd v Financial Ombudsman Service Ltd [2012] WASC 279 Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	56
Date of hearing:	30 May 2022
Counsel for the Applicant:	Mr S Robertson with Ms C Langford and Mr M Barnes
Solicitor for the Applicant:	HWL Ebsworth Lawyers
Counsel for the First Respondent:	Mr M W Wise QC with Mr A F Solomon-Bridge
Solicitor for the First Respondent:	Arslan Lawyers
Counsel for the Second Respondent:	The Second Respondent did not appear
Counsel for the Cross‑Claimant:	Mr M W Wise QC with Mr A F Solomon-Bridge
Solicitor for the Cross‑Claimant:	Arslan Lawyers
Counsel for the Cross‑Respondent:	Mr S Robertson with Ms C Langford and Mr M Barnes
Solicitor for the Cross‑Respondent:	HWL Ebsworth Lawyers

ORDERS

		NSD 747 of 2019
BETWEEN:	METLIFE INSURANCE LIMITED (ACN 004 274 882) Applicant
AND:	AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY (ACN 620 494 340) First Respondent ; BRIAN RONALD EDGECOMBE Second Respondent
AND BETWEEN:	AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY (ACN 620 494 340) Cross-Claimant
AND:	METLIFE INSURANCE LIMITED (ACN 004 274 882) Cross-Respondent

order made by:	COLVIN J
DATE OF ORDER:	20 july 2022

THE COURT ORDERS THAT:

1. There be no order as to the costs of the proceedings.

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

REASONS FOR JUDGMENT

COLVIN J:

1. The Australian Financial Complaints Authority (AFCA) is the operator of a scheme for the resolution of disputes. The scheme was established to give effect to laws introduced into the Corporations Act 2001 (Cth) by the Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth). The legislation amalgamated three previous schemes under the single umbrella of AFCA. The content of the consolidated scheme to be administered by AFCA was required to be approved by the Minister.

2. AFCA is a private body with financial services licensees as its members. Any person who is the holder of a financial services licence and who provides certain types of services specified in the Corporations Act must be a member of the scheme. Metlife Insurance Limited (Metlife) is a member of AFCA.

3. Two complaints were made by Mr Brian Edgecombe concerning the conduct of Metlife. They were determined by AFCA in favour of Mr Edgecombe. Metlife claimed that AFCA had no authority to determine the complaints and commenced proceedings in this court seeking declaratory relief to that effect. It commenced those proceedings against AFCA and Mr Edgecombe.

4. Mr Edgecombe filed a submitting appearance. He did so after receiving an email communication from the company secretary at AFCA in the following terms:

… I have handled many of these types of matters in the past for AFCA's predecessor schemes. Should you have any concerns of queries through this process, please feel free to contact me at any time.

You have been served [with the documents in the proceedings] because your rights are potentially affected by the outcome of the proceedings should Metlife proceed and be successful. This is a requirement of the court process. However, in the majority of these types of court case, the consumer puts in what is called...