Decision of the Primary Judge
41 The primary judge noted at J [49] that there was no dispute between the parties that the 2018 Complaint was not a complaint of a kind listed in sub-ss 1053(1)(a)-(j). But there was a dispute about whether the 2018 Complaint was a complaint relating to superannuation for the purposes of s 1053(1). The primary judge observed at J [49] that AFCA maintained, in the alternative, that the 2018 Complaint was not a "complaint relating to superannuation" because it was a complaint against MetLife, as an insurer, in respect of the beneficial interest that Mr Edgecombe was alleged to have in a policy that the parties had referred to as the "FSS Policy". His Honour noted that AFCA therefore submitted that even if MetLife succeeded in its construction of s 1053, the 2018 Complaint could be dealt with as a "non-superannuation complaint" under the AFCA Rules.
42 The primary judge noted at J [50] that r B.2 of the AFCA Rules dealt with complaints "other than a Superannuation Complaint" and r B.2.1(e)(i) provided:
A complaint (other than a Superannuation Complaint) must arise from or relate to … a legal or beneficial interest of the Complainant arising out of … a financial investment (such as life insurance, a security or an interest in a managed investment scheme or a superannuation fund).
43 His Honour then observed at J [51] that the term "Superannuation Complaint" was defined in r E.1 in the following terms:
Superannuation Complaint has the meaning set out in section 1053 of the Corporations Act.
Accordingly:
a) a complaint about an insurer's decision under an insurance policy held by the trustee of a Regulated Superannuation Fund or an Approved Deposit Fund will:
(i) if all of the time limits in rule B.4.1.1 have been met, be considered as a Superannuation Complaint, by joining the insurer to a complaint against the trustee's decision;
(ii) otherwise, be considered as a non-superannuation complaint against the insurer; and
b) a complaint about financial product advice relating to superannuation is not a Superannuation Complaint unless it is provided by:
(i) the trustee of a Regulated Superannuation Fund or Approved Deposit Fund, an RSA provider or a life company as issuer of an Annuity Policy (superannuation provider); or
(ii) an employee or representative of a superannuation provider under the superannuation provider's licence, to a member of the Regulated Superannuation Fund, a beneficiary of the Approved Deposit Fund, a holder of the RSA or a person with an interest in the Annuity Policy.
Otherwise a complaint about financial product advice relating to superannuation will be considered as a non-superannuation complaint against the Financial Firm providing the advice.
44 The primary judge observed at J [53] that an unusual consequence of paragraph (a)(ii) of the definition of a Superannuation Complaint was that if any complaint was made against an insurer in a similar form to that advanced in the 2018 Complaint, it would be treated as a superannuation complaint if made within time but, if not, it could be advanced as a non-superannuation complaint.
45 In this context we note that r B.4.1.1 imposes a two year time limit for superannuation complaints that, by reason of r B.4.4.1, was not capable of being extended.
46 The primary judge then explained at J [55] that, by reason of MetLife's contention that it was inappropriate of AFCA as an independent decision maker to be seeking to advance further defences, including estoppel and acquiescence, and the submitting notice of Mr Edgecombe filed in the expectation that those defences would be advanced, that the matter would proceed by way of a determination of the following separate question:
The question whether in the events which have occurred and on the proper construction of the relevant statutory provisions and the AFCA Rules, the first respondent had jurisdiction or authority to make a determination in respect of the complaints 600,361 and 507677 each dated 12 April 2019 be separately determined.
47 Complaint 600361 is the 2018 Complaint.
48 The primary judge stated at J [57] that the separate question gave rise to the following issues for determination with respect to the 2018 Complaint:
(1) On the proper construction of s 1053(1) of the Corporations Act, does it provide for a category of complaints that includes the 2018 Complaint that cannot be made under the AFCA Scheme?
(2) If yes to (1), was there an ad hoc agreement by which AFCA was to determine the 2018 Complaint outside the AFCA Scheme?
49 The primary judge stated at J [65] that the construction of s 1053(1) of the Corporations Act advanced by AFCA was to be preferred to that contended for by MetLife. Rather than reading the phrase "only if" as defining an exclusive class of superannuation disputes that could be brought under the AFCA Scheme, the primary judge preferred AFCA's construction which at J [62] he stated involved reading s 1053(1) as providing, in effect:
A person may, subject to section 1056, make a complaint as a complaint relating to superannuation under the AFCA Scheme only if the complaint is a complaint [of the kind listed].
(Words in italics added.)
50 The primary judge also found at J [65] that if, contrary to his finding that AFCA's construction should be preferred, the construction advanced by MetLife was correct, then AFCA's alternative contention that the 2018 Complaint was not a "complaint relating to superannuation", as it was directed at a decision by MetLife, should not be accepted.
51 The primary judge reasoned that the specific statutory provisions for superannuation complaints were directed at ensuring that only certain types of complaints could be made on the basis that they were superannuation complaints rather than precluding complaints from being dealt with under the AFCA Scheme as non-superannuation complaints. His Honour stated:
80 Most importantly, as has been explained, the statutory provisions concerned with superannuation complaints have detailed provisions concerning the manner in which insurers (and others) may be brought in as third parties and the nature and extent of the determinations that may be made that may affect the rights of those third parties. Those provisions also require a different approach to those which may apply to non-superannuation complaints. One manifestation of that difference is the extent to which the determinations by AFCA in relation to superannuation complaints must conform to the law and the provisions of the insurance contract (as distinct from being guided by what is fair and reasonable). Another manifestation is the absence of any monetary limit in relation to superannuation claims.
81 These are all contextual reasons why s 1053(1) may be concerned, as AFCA contends, to ensure that only certain types of complaints could be made on the basis that they could be dealt with as superannuation complaints and not concerned with curtailing the circumstances in which complaints may be made under the AFCA Scheme as non-superannuation complaints.
52 The primary judge placed particular reliance on statements in the extrinsic material about the objective of creating a "one-stop shop" to address all complaints that could previously be made under the previous external dispute resolutions schemes. His Honour stated:
84 There is considerable support for the submission to the effect that the purpose of the provisions introduced into the Corporations Act by the AFCA Establishment Act was to continue the scope and structure of the previous regime in terms of the type of complaints that might be brought but bring them within a one-stop shop in the form of the AFCA Scheme. The recommendation of the Ramsay Report was to that effect as were the statements made upon the second reading of the Bill to introduce the AFCA Establishment Act.
85 Importantly, the provisions enacted by the AFCA Establishment Act reflected the scope of the external dispute resolution schemes that applied previously. In particular (and without being exhaustive), the following aspects were common to both the previous regime and the AFCA Scheme:
(1) there is no monetary or compensation limit for superannuation complaints but there is such a limit for other complaints (notably complaints against insurers);
(2) a decision by a trustee of a regulated superannuation fund relating to a member of the fund could be the subject of a complaint on the basis that it was unfair or unreasonable;
(3) they provide for the same time limits on bringing complaints;
(4) there is power to require third parties such as insurers in the position of Metlife to be joined to a complaint in the case of superannuation complaints but not otherwise;
(5) in determining the complaint, the decision-maker could exercise all the powers, obligations and discretions of a third party in the case of superannuation complaints but not otherwise;
(6) questions of law arising in relation to the determination of a superannuation complaint may be referred to this Court but not otherwise; and
(7) in both cases, the nature of the determination to be made in the case of superannuation complaints is expressed in similar terms and is subject to a limitation to the effect that the determination must not be contrary to law, the governing rules of the superannuation fund or the terms and conditions of an insurance policy.
86 Those aspects provide considerable support for AFCA's construction.
53 The primary judge concluded that the context supported a construction of s 1053(1) that preserved all the determinations available under the previous schemes rather than a construction that identified categories of complaints that could no longer be brought:
100 Having regard to the context, the construction contended for by AFCA is to be preferred. Under the previous regime, a complaint of the kind made by Mr Edgecombe as the 2018 Complaint could be made to the Ombudsman Service (and was not a complaint that had to be made to the Superannuation Complaints Tribunal) provided it was within the monetary limits. A complaint could also be made to the Tribunal concerning the conduct of a superannuation trustee in dealing with an insurer as to an insurance benefit to which the member claimed to be entitled. In such a case, a different procedure was followed with a different type of determination than if the complaint was determined by the Ombudsman Service. Therefore, there were different types of determinations that could be made depending upon whether a complaint was made to the Tribunal or to the Ombudsman Service. An examination of the previous regime and the provisions of the AFCA Establishment Act shows that the provisions in Div 3 of the Corporations Act that were introduced by the AFCA Establishment Act were directed to establishing a one-stop shop rather than changing the types of determinations that could previously be made by the Tribunal and the Ombudsman Service respectively. The terms of the Ramsay Report and the second reading speech support that conclusion. There is no more specific purpose that may be discerned.
101 Therefore, the context supports a construction which continues the availability of the kinds of determinations that could be made under the previous regime rather than a construction which identifies a category of complaints that could no longer be brought before external dispute resolution.
102 It follows that, having regard to context, the construction advanced by AFCA is to be preferred. The phrase 'a complaint relating to superannuation under the AFCA Scheme' means a complaint that relates to superannuation in the sense that it seeks to invoke the particular statutory authority conferred by Div 3.
54 The primary judge then considered and rejected AFCA's alternative case, including the three contentions the subject of the amended notice of contention.
55 First, the primary judge did not accept that the manner in which Mr Edgecombe framed his complaint was determinative of whether the complaint was a complaint relating to superannuation. His Honour concluded at J [104]-[105] that on the assumption that the MetLife construction of s 1053(1) was correct, the 2018 Complaint was a complaint relating to superannuation because the insurance policy had been negotiated between the insurer and Mr Edgecombe's superannuation trustee, the benefit payable under the policy if liability was established would be paid to Mr Edgecombe as a member of the superannuation fund and his claim arose solely from his status as a member of a superannuation fund.
56 Second, the primary judge did not accept that the parties had agreed that the 2018 Complaint could be determined by AFCA under the AFCA Rules. His Honour reasoned at J [125]:
There was no evidence of a consensus to the effect that a decision would be made outside the AFCA Scheme by reference to the AFCA Rules even though they were not applicable between the parties. Nor is there evidence from which it may be inferred that the parties agreed by conduct that the 2018 Complaint would be determined on the basis of the AFCA Rules even if the AFCA Scheme did not apply to the 2018 Complaint (because it was a superannuation complaint of a kind that could not be considered under the AFCA Scheme). Therefore, AFCA acquired no further authority than that conferred by the AFCA Scheme to determine the 2018 Complaint.
57 Third, the primary judge did not accept that there was any ad hoc agreement by which AFCA was to determine the 2018 Complaint. After summarising the evidence of the communications between AFCA, Mr Edgecombe and MetLife in the period leading up to the determination of the 2018 Complaint, his Honour concluded at J [125] that the conduct of all three parties throughout that period demonstrated that they were proceeding on the basis that AFCA was conducting a determination pursuant to the AFCA Scheme and not some other process.