Plaintiff v First Defendant

2 Mr Mickovski was a factory worker who was insured under a salary continuance insurance policy ("the SCI policy") provided by MetLife through Mr Mickovski's employer, Visy Board Pty Ltd. Mr Mickovski was also a member of the Visy Industries Superannuation Fund and a beneficiary of a total and permanent disability insurance policy ("the TPD policy").

3 Mr Mickovski suffered serious injuries in February 1995 after slipping on leaking oil at work. He suffered an injury to his lower back causing him pain which radiated into both legs. He was off work for about six weeks and returned to work on light duties. He was diagnosed with ankylosing spondylitis, which became symptomatic after the fall. He also suffered from hypertension and ceased work on 30 September 1998 and has not worked since.

4 Mr Mickovski claimed upon, and was paid, salary continuation payments under the SCI policy. On 12 April 1999 Buck Consultants informed the insurer (then named Citycorp Life Insurance) on behalf of Mr Mickovski that he had advised that his situation had not improved, that it was unlikely that he would be returning to work, and accordingly that he then wished "to lodge a claim for Total and Permanent Disablement" under the TPD insurance policy. The TPD benefit was paid to Mr Mickovski on August 1999 and salary continuance payments under the SCI policy ceased as at 23 July 1999 (being the date upon which the TPD benefits commenced).

5 Mr Mickovski now maintains that in 1999 he was not totally and permanently disabled and seeks to reinstate and backdate the salary continuance benefits that would be payable upon the SCI policy. The merits or strength of the claim are not in issue in this proceeding; in issue is only (a) whether FOS was correct in ruling that it lacked jurisdiction, and (b) whether this Court has jurisdiction to consider or challenge that ruling.

6 MetLife is a member of FOS and Mr Mickovski lodged a complaint to FOS pursuant to its constitution and terms of reference. The complaint was referred to the panel chair to rule on whether the complaint should be dismissed as being outside FOS's jurisdiction because of clause 14.1(p) of the terms of reference. That clause excludes complaints where the complainant knew or should reasonably have known all of the relevant facts more than six years before first notifying FOS of the complaint. For these purposes the relevant date from which the six years is to be calculated is accepted by the parties to be 3 November 2002 as stated by FOS in its ruling.

7 Mr Mickovski's claim for judicial review relied upon the decision in Masu Financial Management Pty Ltd v Financial Industry Complaints Services Limited (No.s 1 & 2).[1] In that case Shaw J held that the decision of the predecessor to FOS, the Financial Industry Complaints Service ("FICS"), was amenable to judicial review because it exercised powers of a public nature.[2] Central to that conclusion was his Honour's view that the preponderance of Australian authority indicated that the English case of R v Panel on Take-overs and Mergers; Ex parte Datafin Plc[3] ("Datafin") is applicable in Australia.

8 Whether or not the principle enunciated in Datafin is part of the law in Australia continues to be a matter of some controversy.[4] In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd[5] Basten JA subsequently expressed the contrary view, namely that there "is an absence of authority in Australia addressing the question of whether or not Datafin applies".[6] A number of cases in this Court have considered the availability of the Datafin principle in Victoria. In D'Souza v Royal Australian and New Zealand College of Psychiatrists[7] Ashley J (as his Honour then was) reviewed the relevant authorities and concluded that, on the then state of Australian authorities, certiorari was not available in respect of a decision of a body whose powers derived only from private contract.[8] In CECA Institute Pty Ltd v Australian Council for Private Education and Training[9] Kyrou J reviewed the authorities (including D'Souza) and concluded that the Datafin principle did apply in Victoria and that, in the absence of High Court authority to the contrary, the decision in State of Victoria v Master Builders' Association of Victoria[10] was sufficient authority for the applicability of the Datafin principle in this state.

9 It is well established that a trial judge should follow decisions of fellow judges at first instance unless they are clearly wrong.[11] However, counsel for MetLife contended that the position in this case was not one in which there was a decision which I ought, although not bound, to follow unless I considered it to be clearly wrong, but rather, that I was faced with conflicting decisions of two judges of this Court sitting at first instance, namely the decision of Ashley J (as his Honour then was) in D'Souza and the decision of Kyrou J in CECA. I do not consider the two decisions to be in conflict as submitted. Ashley J (as his Honour then was) did not reject Datafin and Kyrou J in CECA did not purport to overrule or decline to follow D'Souza. In D'Souza Ashley J (as his Honour then was) may properly be understood as distinguishing Datafin on the facts before his Honour rather than deciding not to apply it. His Honour identified three classes of cases in which judicial review was sought against entities, namely, where (a) entities whose exercise of power was grounded in statute, (b) entities whose exercise of power was grounded in contract, and (c) entities whose exercise of power was grounded in "the middle ground". His Honour considered the case before him as one in the second category (namely as one in which the entity's power was grounded only in contract) and regarded Datafin as a case in the middle ground.[12] In D'Souza his Honour considered that the relevant absence of authority for the grant of certiorari was in respect of a decision of a body whose powers "derive only from private contract" (my emphasis).[13] The decision challenged in D'Souza was one whose power derived solely from contract,[14] and, in any event, his Honour concluded that the entity in that case did not exercise public functions and powers in determining whether to elect a candidate to fellowship even though such election had public consequences.[15] In contrast, the decision in CECA specifically adopted the Datafin principle and I ought to follow the decision of Kyrou J unless I consider it to be clearly wrong.[16] I do not consider his Honour's decision to be clearly wrong. On the contrary, I consider his Honour's decision and that in Datafin to be correct and to accord with the fundamental and constitutional role of the Court to ensure that the exercise of public duties is amenable to judicial review.

10 The conclusion that the principle in Datafin applies in Victoria does not necessarily mean that the decision complained about comes within the operation of the principle.[17] Even a public body underpinned or created by statute may sometimes be exercising "private" functions which may not be reviewable in the exercise of the Court's supervisory jurisdiction.[18] The Datafin principle was not a judicial assertion of jurisdiction to review private contracts but, rather, an acknowledgment that public power, properly reviewable in the court's supervisory jurisdiction, might be exercised by a private body. The principle, although described by Kyrou J as an extension,[19] may be seen as the court ensuring that the traditional and constitutional role of supervising the proper exercise of public duties conforms with the practical reality of public duties being exercised by private entities.

11 In Datafin Lord Donaldson warned against the court not recognising "the realities of executive power and [allowing] their vision to be clouded by the subtlety and sometimes complexity of the way in which [executive power] can be exerted".[20] The specific inquiry called for when the Datafin principle is invoked is whether the decision challenged is an exercise of executive power notwithstanding that the exercise be through a private entity. The reason and need for such an inquiry is to ensure (a) that the Court's supervisory jurisdiction conforms with the reality of public power being exercised through private entities and (b) that the Court does not exceed its proper role of supervision by intruding into the exercise of non public duties. The learned authors of Judicial Review of Administrative Action[21] observed in this connection:

Judicial review is presumptively available in respect of all statutory decision-making, at least if those powers are being exercised by government, if the powers have legal limits, and if the dispute is justiciable.[22]

That review ought also to be available where the power exercised by a private body is, of its nature, such as to be exercising public law functions. In that regard Lloyd LJ said in Datafin :

I do not agree that the source of the power is the sole test whether a body is subject to judicial review ... Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review ...

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may ... be sufficient to bring the body within the reach of judicial review. It may be said that to refer to "public law" in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other.[23]

Accordingly, it is to the nature of the power exercised and sought to be reviewed that one must look to determine whether the decision made by FOS was made in the performance of a public duty or in the exercise of a power which has a relevant and sufficient public element. The identification of the nature of the power must be undertaken with care and precision to ensure that the Court's supervisory jurisdiction both conforms with and does not exceed its duty and function of supervising the exercise of public powers.

12 The insurance industry like many others is regulated by government and that circumstance alone is not sufficient to invoke the Datafin principle. Nor is it sufficient that the decision being challenged has public consequences (as was made clear by D'Souza). MetLife operates under a licence which is conditional upon it being a member of an alternative dispute resolution scheme approved by ASIC. FOS conducts a dispute resolution scheme specifically approved by ASIC under an instrument made pursuant to the Corporations Act 2001. That scheme is governed by a constitution and terms of reference. It is a company limited by guarantee whose objects are directed to the purpose, like its predecessor, of providing "an external dispute resolution scheme which complies with" the Corporations Act 2001.[24] There is no doubt a public interest in a private company providing an alternative dispute resolution mechanism for the benefit of those who come within its terms. The same, however, may be said of the very many private entities, arrangements or industries which are regulated by government and legislation. It may, of course, be said of private law generally. The public interest in the existence of a dispute resolution mechanism to resolve private disputes, however desirable from the point of view of public policy, does not in my view constitute a public function or element which of its nature is sufficient to invoke the principle in Datafin. The public interest evident in the regulatory framework is that there should be a mechanism for private dispute resolution but I do not think it can be said that FOS is exercising a public duty or public element when its jurisdiction is consensually invoked by the parties to a complaint. Mr Mickovski was under no obligation to make use of FOS and the terms of reference makes clear that complainants are not bound by decisions of FOS. Complainants may wish to pursue whatever rights they may have against the member, in this case MetLife, in any other forum. There is in my view no relevant public "duty"[25] or public "element"[26] in FOS being invoked as the means by which a private controversy or complaint may be resolved in a non binding manner. In that regard I agree with, and respectfully adopt, the conclusion in R v Insurance Ombudsman Bureau; Ex parte AEGON Life Assurance Limited.[27]

13 The second basis upon which the plaintiff maintained the proceeding in this Court was on the basis of a contract on which Mr Mickovski could rely as against MetLife. It was submitted on behalf of Mr Mickovski that two relevant contracts were entered into when he made his complaint to FOS either of which could form the source or ground of the relief he sought. The first was said to be a contract between FOS and MetLife as a member under the terms of FOS upon which Mr Mickovski could rely. The second was a tripartite contract between Mr Mickovski (as complainant), MetLife (as respondent to the complaint) and FOS (as the decision maker of the complaint) whereby the latter had agreed with the process of dispute resolution in accordance with its rules.

14 In Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd[28] Finkelstein J held that the predecessor to FOS, (FICS), had contracted with its members to the general effect that the members would be bound by the FICS rules that established the dispute resolution scheme as amended from time to time and that the private contract between them was the source of the power and authority for FICS to hear and determine complaints against the members.[29]

15 The existence of a contract between FOS and its members does not establish a contract between FOS and someone else, such as Mr Mickovski, who is not a member. There are instances in which procedural rules may be relied upon and enforced by someone who is not a member of a private body,[30] but "the duty to accord procedural fairness is not co-extensive with the availability of certiorari for breach".[31] There are, of course, also cases in which a contract may arise between parties, although they have not had direct contact with each other,[32] whether by necessary intendment, implication or to give effect to the benefit under a contract secured for a third party.[33] The terms under which FOS is created do not make out such a contract; on the contrary, its terms do not purport to bind third parties such as Mr Mickovski but rather acknowledge that such persons are not bound by its terms.

16 The making of a complaint to FOS changes the position. It seems to me that a tripartite contract was established between Mr Mickovski, as complainant, MetLife, as respondent, and FOS, as the decision maker of the complaint, upon a complaint being made pursuant to the facility for alternative dispute resolution. Mr Mickovski is not a member of FOS and is not ordinarily bound by its terms, however, the terms of reference invited him, and entitled him, to make a complaint, and upon the making of a complaint he became bound to comply with the terms of reference to the extent to which they applied to him and, correspondingly, became entitled to expect the rules to be applied correctly. Clause 7.1 provided that the procedure was available to all persons with respect to any dealing or transactions that any person had directly or indirectly with a member. Clause 8.1 laid down the conditions that had to be met before a complainant could invoke the provisions. Clause 19 required the complainant to provide information, which clause 21 provided would not be disclosed to any other person other than pursuant to its terms. Clause 24.1 permitted the complaint to be dismissed if the complainant failed to respond to correspondence.

17 Clause 37 was relied upon by MetLife to contend that no contract between Mr Mickovski and FOS had come into existence. That clause provided that a complainant would not be bound by the decisions of FOS, however the impact of that provision does not mean that there was not a binding agreement with respect to the process to be undertaken up to the making of a decision once Mr Mickovski had invoked the complaints procedures. Indeed, clause 37 contemplates a process whereby a complainant is required to elect whether or not to accept a decision and, where the complainant elects to accept a decision, the complainant would thereupon be bound by all aspects of that decision and, in any event, would bind the member as against the complainant. Accordingly I consider the proceeding in this Court to be competent upon the basis of contract.

18 The substantive complaint by Mr Mickovski was that the FOS ruling was in breach of clause 5 by misconstruing the jurisdiction clause under which the ruling was made. "It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract".[34] Clause 5 of the terms of reference required FOS to deal with the complaint on its merits having regard, amongst other things, to any applicable legal rule or judicial authority including one concerning the legal effect of an express or implied term of a contract or other document. The issue ruled upon by FOS concerned the construction and application of clause 14.1(p) of the terms of reference. By that provision FOS was prohibited from dealing with complaints where "the complainant knew or should reasonably have known of all of the relevant facts more than six years before first notifying [FOS] about the complaint". The ruling given was that clause 14.1(p) precluded FOS considering his complaint because Mr Mickovski did know or reasonably should have known all of the relevant facts prior to 3 November 2002.

19 The facts which Mr Mickovski contended he did not know before that date are twofold. First he maintained that he did not know, and indeed could not have known, of a construction of the policy arising from a decision in 2007 rectifying the words of the SCI policy. The second is that a number of medical reports in the possession of MetLife were not made available to Mr Mickovski before 3 November 2002.

20 Mr Mickovski's injury occurred on 7 February 1995 and it was notified thereafter. He ceased work in September 1998 and the salary continuance payments under the SCI policy were substituted for a total and permanent disablement benefit under the TPD policy as from 23 July 1999. At this time the SCI policy was understood as providing for a cessation of entitlements if a person to whom a benefit was payable was totally and permanently disabled as subjectively determined by the insurer rather than as objectively determined. In 2006 proceedings were issued in New South Wales seeking rectification of the SCI policy to the intent that the benefit period be defined as at "65 years of age or the member is earlier totally and permanently disabled and/or paid the TPD benefit" under the superannuation scheme. The New South Wales Supreme Court directed MetLife to write to each of 34 persons which it admitted could be affected by the application for rectification, notifying them of the proceeding and inviting them to join the proceeding. Mr Mickovski was one of the 34 people who MetLife considered might be affected by the New South Wales proceeding and on 14 August 2007 was named as the twenty second defendant to that proceeding.

21 On 13 November 2007 Brereton J ordered[35] that the SCI policy be rectified by substituting in the first schedule, item 4, benefit period, for the matter "65 years" the matter "to age 65, ceasing on TPD". The Court declared that upon the proper construction of the SCI policy, as rectified, the benefit period expired on the earlier of a member attaining 65 years of age or, amongst other matters, "having been absent from his or her occupation with the employer through accident or illness for six consecutive months and having become incapacitated to such an extent as to render the member unlikely ever to engage in any gainful profession, trade or occupation for which the member is reasonably qualified by reason of the education, training or experience". The definition of "TPD" in the SCI policy, as rectified, differed in its terms from the definition of total and permanent disablement in the TPD policy. Under the latter the payment was made upon the provision of proof to the satisfaction of the insurer of the relevant incapacity.

22 The significance of the MetLife decision for present purposes was that the definition of "TPD" in the SCI policy differed from the definition of total and permanent disablement in the TPD policy. Under the latter, payment was made upon the provision of proof to the insurer's satisfaction of the relevant incapacity and could only be challenged to the extent to which subjective conclusions were able to be challenged on the basis of reasonableness. In contrast, payment under the SCI policy was made on the fact of occurrence of the relevant incapacity. The rectification thus gave rise to a potential point of difference between the two policies whereby entitlement to one was not mutually exclusive of entitlement under the other. In particular, the contention for Mr Mickovski which founded his complaint to FOS is that the objective criteria for cessation of entitlements under the SCI policy had not occurred in 1999 and that, whatever the entitlements under the TPD policy, he had entitlements under the SCI policy.

23 The FOS ruling in relation to clause 14.1(p) was that knowledge of the MetLife decision, or knowledge of the consequence of the MetLife decision, was not a "relevant fact" which was not known or ought to have been known to Mr Mickovski. The fact accepted in the FOS ruling was that Mr Mickovski believed that his SCI benefits would cease once he was paid TPD benefits. The latter required the member to be satisfied that the complainant was "totally and permanently disabled" within the meaning of the TPD policy definition but the SCI benefits might not.

24 The FOS ruling was to the effect that the points of difference between the policy terms as they actually were, and as the complainant understood them to be, were only theoretical. The ruling explained:

1. There are two points of difference between the policy terms as they actually were and as the complainant understood them to be: termination of SCI benefits does not require the member to have paid TPD benefits; and for SCI benefits to terminate the complainant must be "totally and permanently disabled" measured objectively, rather than to the satisfaction of the member.
2. I am not persuaded either of these differences is other than theoretical. FOS could not reasonably conceive a set of circumstances in which the medical evidence was sufficient to satisfy the member an insured employee was totally and permanently disabled for the purposes of paying TPD benefit, and yet not be objectively totally and permanently disabled under the same definition, for the purposes of SCI benefits ceasing.

I am not satisfied that any error has been shown to have been made by FOS in reaching this conclusion in its ruling. FOS was not asserting that the difference between subjective and objective definitions was theoretical or otherwise lacking in substance but rather that on the material before it the differences were not shown to be other than theoretical. Plainly the difference between the application of an objective definition and a subjective definition can be significant.[36] The significance of the distinction may be seen by the fact of, and in, the MetLife decision itself. The conclusion in the FOS ruling was, however, that the differences in the complaint made by Mr Mickovski were not shown to be other than theoretical. The decision by FOS was, in other words, that Mr Mickovski had not made out the relevance of a theoretical matter upon the facts sufficient to engage its jurisdiction. That conclusion was not shown to be erroneous on the material as it was before the Tribunal as being other than theoretical.

25 It was also contended by counsel for Mr Mickovski that the FOS ruling had taken too narrow a view of what facts were relevant for the purposes of clause 14.1(p). MetLife contended that the fundamental difference between the parties was their different interpretation of the phrase "all the relevant facts" in the clause. MetLife maintained the phrase to mean "those facts that establish the essential elements of the Complainant's claim or cause of action against the member" and relied for that submission upon a decision by FOS in another matter. I accept the submission made for Mr Mickovski that this construction adopts too narrow a view of what may be relevant for the purposes of clause 14.1(p), but the FOS decision on Mr Mickovski's complaint does not appear to be based upon that, or any other, earlier decision or upon the adoption of a narrow view of what may be relevant in any given case.

26 It was maintained for Mr Mickovski that the following facts were relevant to a consideration of his complaint for the purpose of clause 14.1(p):

(a) that on 23 July 1999, MetLife had no legal right to cease making payments of the SCI benefit because of the making of payment of the TPD benefit;

(b) that on 23 July 1999, MetLife ceased making payments of the SCI benefit on the erroneous basis SCI payments had to cease because proof had been provided to its satisfaction of Mr Mickovski having become incapacitated in the relevant way and a TPD benefit had consequentially been paid;

(c) that on 23 July 1999, MetLife led Mr Mickovski to believe that it had a legal right to cease making payments of the SCI benefits because of the making of payment of the TPD benefit and that it had ceased to make payments of the SCI benefits because of that legal right;

(d) that Mr Mickovski did not know that MetLife did not have that legal right because he had been led to believe that the policy permitted MetLife to cease making payments of the SCI benefits;

(e) that MetLife must be taken to have known that the policy, as written, did not give MetLife a legal right to cease making payments of the SCI benefits because of the making of payment of the TPD benefit and that there was no certainty that the policy would be rectified by a Court at least in 2001, when MetLife's Claims Manager, Andrew McFarlane, ascertained that the First Schedule to the SCI policy omitted any reference to benefits ceasing on payment of the TPD benefit, and purported to amend the First Schedule on 11 September 2001 so as to define the benefit period as "65 years (ceasing on payment of TPD)";

(f) that MetLife did not disclose that knowledge to Mr Mickovski;

(g) that Mr Mickovski was ignorant of any of the matters referred to in paragraphs (e) and (f) until after he received the letter from MetLife in July 2007 as directed by the Court.

These facts were said to be "the crucial facts that underlay the circumstance that Mr Mickovski failed to make a complaint until 2008". The FOS ruling, however, was not that these facts could not have been relevant but that their actual relevance was not made out on a basis other than a theoretical one. The ruling went on to support that conclusion with its affirmative conclusion that it "could not reasonably conceive a set of circumstances in which the medical evidence was sufficient to satisfy the member an insured employee was totally and permanently disabled for the purposes of paying TPD benefit, and yet not be totally and permanently disabled under the same definition, for the purposes of the SCI benefits ceasing".

27 Mr Mickovski's case before this Court maintained, in effect, that it was sufficient to establish an entitlement to have FOS consider his complaint by relying upon an absence of certainty about whether or not he would have maintained a claim had he known of the terms of the SCI policy as rectified. In the submissions on his behalf it was said:

1. It cannot be asserted that if Mr. Mickovski had been informed, in 1999 or in 2001, that the policy, as written, did not give MetLife a legal right to cease making payments of the SCI benefits because of the making of payment of the TPD benefit and that there was no certainty that the policy would be rectified by a Court, that Mr. Mickovski would have taken no action. Indeed, the actions he took after he was so informed suggest that he would have taken action.
2. Once that conclusion is reached, it follows that each of the facts referred to [in paragraph 26] above were relevant facts.

It was this reasoning which the FOS ruling rejected. In its view jurisdiction under clause 14.1(p) required more than theoretical possibilities, especially in the context of the facts in question where the one applicant claimed to be totally and permanently disabled under the two policies. FOS was not satisfied that pointing to theoretically relevant facts was sufficient to give it a jurisdiction that had specifically been narrowed through clause 14.1(p). The task faced by FOS was to ensure that it did not exceed its legal jurisdiction and I do not find legal error in its construction of clause 14.1(p) as requiring a complainant to establish the contentions beyond claims of possibility.

28 The next basis upon which Mr Mickovski challenged the FOS ruling about its jurisdiction was that MetLife had obtained a number of reports which were not provided to Mr Mickovski until late 2008. Eight reports were obtained by MetLife during 1999 and 2000 concerning Mr Mickovski's medical condition. It relied upon them in making its decision to terminate payments of SCI benefits and to pay the TPD benefit.

29 The FOS ruling on this matter was explained as follows:

1. A number of medical reports in the member's possession and relied on to grant TPD benefits (and to terminate SCI benefits) in 1999, were first made available to the complainant in 2007 or 2008. The complainant's solicitors assert that these reports themselves constitute relevant facts.
2. The member questioned why it would be expected to provide this material (and why its failure to do so was a breach of its obligations) when it was admitting a claim, being the claim for TPD benefits.
3. This submission may be said to be disingenuous. The termination of SCI payments was accompanied by, or immediately followed upon, the decision to grant TPD benefits, and arose from the application of identical, or virtually identical, policy criteria to the complainant's medical condition. This does not make the termination of payments any less an adverse decision, under a different if related policy to the one under which benefits would now be paid. This would have been the case even when the member believed that SCI benefits ceased upon payment of TPD benefits. It is even more the case under the policy terms as set out by the NSW Supreme Court; the cessation of one benefit does not flow from the payment of the other.
4. However, the member also pointed out - correctly - that the medical reports are not themselves relevant facts but evidence of a relevant fact: whether the complainant was totally and permanently disabled within the meaning of the policy wording. The reports withheld by the member - at least eight reports, taken into account in its decision to pay TPD benefits and cease SCI benefits - did not constitute the only evidence available on this issue.
5. Further, and most critically, the reports withheld by the member would not have been the only evidence available to suggest a different view of the relevant fact - that is, whether the complainant met the policy definition of total disability.
6. In a letter from the complainant's solicitors to the member, dated 19 August 2008, several medical reports are cited. These medical reports, mostly dating back to 1999 and 2000, could have provided support for an argument that the complainant was not totally and permanently disabled in 1999 when SCT benefits ceased and TPD benefits were paid.
7. The complainant was in a position to obtain those reports (with the sole exception of one GP report dating from 2008) and may indeed have had them by, of course, early 2001 at the latest. He was therefore sufficiently placed by that time to be aware that not all the evidence supported the conclusion that he was totally and permanently disabled.
8. Further, nothing in the material before me suggests that the contents of those reports would have altered the view of this question of fact, such that the complainant could not reasonably have known the relevant fact until he had had the chance to review those reports.

In these paragraphs FOS concluded that the absence of the medical reports did not deny access to Mr Mickovski to some relevant fact within the meaning of clause 14.1(p).

30 The absence of the 1999 and 2000 medical reports was not said to have prevented or hindered Mr Mickovski from concluding that he ought to have taken action before 3 November 2002. The submission was that the failure to make available the reports to Mr Mickovski amounted to a breach of its duty of utmost good faith.[37] I doubt that there was any breach of MetLife's duty of utmost good faith because the reports were not obtained prior to, or in making, an adverse decision, on undisclosed facts, against Mr Mickovski.[38] However, what must be shown to come within clause 14.1(p) is some fact which may fairly be described as "relevant" to a claim. The concept of "relevant facts" for the purposes of clause 14.1(p) is necessarily wide and is not limited to knowledge of a cause of action. FOS's conclusion that the reports did not reveal lack of knowledge of a relevant fact was fundamentally that they supported the claim he had made for payment of the TPD benefits. The issue at the time was whether his condition was such as to justify accepting the application made on his behalf for payment of the TPD benefits. The reports confirmed the entitlement for which he had claimed.

31 In paragraph 91 of the FOS ruling it was accepted that some of the medical reports "could have provided support for an argument that [Mr Mickovski] was not totally and permanently disabled in 1999 when SCT benefits ceased and TPD benefits were paid". This, it seems, was conceded by MetLife in the submissions before FOS. However, FOS did not consider that anything in the material before the panel member suggested that the contents of those reports "would have altered the view on this question of fact, such that the complainant could not reasonably have known the relevant fact until he had the chance to review those reports". The material before me does not suggest that FOS was in error in reaching that conclusion on the facts. It was submitted for Mr Mickovski that if he had been made aware of the material in the reports "it may well have altered his view about what steps he could take", but that statement of possibility was not considered sufficient foundation to enliven the jurisdiction conditioned by clause 14.1(p). Indeed, if it be relevant, it may be contrasted with the opposite view suggested by the medical reports in the possession of MetLife at the time of the claim for the TPD benefit which indicated that Mr Mickovski was objectively totally and permanently disabled. The jurisdiction of FOS is conditional upon specified factual preconditions including, relevantly, those in clause 14.1(p). It was required to determine whether the factual preconditions to the exercise of its jurisdiction had been satisfied and I do not consider FOS to have mistaken its legal task or to have determined the facts other than as it was permitted to do.

32 Accordingly, the orders I propose are to dismiss the proceeding and I will hear the parties on the question of costs.

[3] [1986] EWCA Civ 8; [1987] 1 QB 815.

[4] Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed) 146; Denise McGill, "Are the Financial Services External Complaints Resolution Schemes Subject to Judicial Review?" (2008) 26 C&SLJ 438.

[5] [2010] NSWCA 190; (2010) 272 ALR 750.

[7] [2005] VSC 161; (2005) 12 VR 42.

[9] [2010] VSC 552; (2010) 245 FLR 86.

[10] [1995] VicRp 47; [1995] 2 VR 121.

[11] La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, 204 (Burchett J); Shaw v Yarranova Pty Ltd [2006] VSC 45, [67] - [68] (Bell J); Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113, 119 (Rogers J).

[12] [2005] VSC 161; (2005) 12 VR 42, [107].

[16] La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201, 204 (Burchett J); Shaw v Yarranova Pty Ltd [2006] VSC 45, [67] - [68] (Bell J); Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation [1982] 1 NSWLR 113, 119 (Rogers J).

[17] CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86, 109 [101] (Kyrou J).

[18] Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed) 143 [3.270]; YL v Birmingham City Council [2007] UKHL 27; [2008] 1 AC 95, 135-136 (Lord Mance).

[19] CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86, 109 [99] (Kyrou J).

[20] [1986] EWCA Civ 8; [1987] 1 QB 815, 838-9.

[21] Aronson, Dyer and Groves, Judicial Review of Administrative Action (2009, 4th ed).

1. [23] R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1986] EWCA Civ 8; [1987] 1 QB 815, 847 (citation omitted); cited with approval in CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86, 102 [78] (Kyrou J).

[24] AXA Australia v Financial Industry Complaints Service Ltd [2006] VSC 121; (2006) 14 ANZ Insurance Cas 61-695 [12] (Bongiorno J).

[25] R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1986] EWCA Civ 8; [1987] 1 QB 815, 847 (Lloyd LJ).

[27] [1995] LRLR 101, 106 (McKinnon J).

[28] [2006] FCA 1805; (2006) 157 FCR 229.

[29] See also Wealthcare Financial Planning Pty Ltd v Financial Industry Complaints Service Ltd [2009] VSC 7; (2009) 69 ACSR 418, [6] (Cavanough J).

[30] Forbes v NSW Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242, 264 (Gibbs J); Harrison v Hearn [1972] 1 NSWLR 428; McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, [113] (Campbell J); Rose v Boxing NSW Inc [2007] NSWSC 20, [55], [58] (Brereton J).

[31] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 272 ALR 750, [79] (Basten JA); CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 245 FLR 86, [114] (Kyrou J); McClelland v Burning Palms Surf Lifesaving Club [2002] NSWSC 470; (2002) 191 ALR 759.

[32] Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1; [1893] 1 QB 256.

[33] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1998) 165 CLR 107, 123-4 (Mason CJ and Wilson J); HL(Qld) Nominees Pty Ltd v Jobera Pty Ltd [2009] SASC 165, [285] (Layton J); Merrell Associates Ltd v HL(Qld) Nominees Pty Ltd [2010] SASC 155; (2010) 241 FLR 49, 70 (Gray J with Nyland and Vanstone JJ agreeing); QBE Insurance (Australia) Ltd v Lumley General Insurance Ltd [2009] VSCA 124; (2009) 24 VR 326, 341-2 (Neave and Dodds-Streeton JJA and Kyrou AJA).

[34] Butt v M'Donald (1896) 7 QLJ 68, 70-71 (Griffith CJ); Specialist Diagnostic Services Pty Ltd v Healthscope Ltd [2010] VSC 443, [139] (Croft J).

[35] MetLife Insurance Ltd v Visy Board Pty Ltd [2007] NSWSC 1481.

[36] Telstra Super Pty Ltd v Flegeltaub [2000] VSCA 180; (2000) 2 VR 276, 278, 279 (Ormiston JA); Edwards v The Hunter Valley Co-Op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113, 77, 536 (McLelland J); Hannover Life Re of Australasia Ltd v Sayseng [2005] NSWCA 214, [47]-[51] (Santow JA); Heitman v Guardian Assurance Co Ltd (1992) 7 ANZ Ins Cas 61-107, 77, 491-77, 492 (Franklyn J); MetLife Insurance Ltd v Visy Board Pty Ltd [2007] NSWSC 1481, [36]-[38] (Brereton J).

[37] Beverley v Tyndall Life Insurance Co Ltd (1999) 21 WAR 327; Hannover Life Re of Australasia Limited v Sayseng [2005] NSWCA 214.

[38] Edwards v The Hunter Valley Co-op Diary Co Ltd (1992) 7 ANZ Ins Cas 61-113, 77, 536 [80].