Steele v Australian Financial Complaints Authority [2026] FCA 170

1. On 15 July 2025, Michael Steele commenced the present proceedings by filing a notice of appeal against a judgment delivered by a judge of this Court (primary judge) on 20 June 2025: Steele v Host-Plus Pty Limited as trustee for the Hostplus Superannuation Fund [2025] FCA 668.
2. In that judgment, the primary judge dismissed an appeal by Mr Steele pursuant to s 1057(1) of the Corporations Act 2001 (Cth) against a determination made by the Australian Financial Complaints Authority (AFCA) on 27 November 2024.
3. The decision of AFCA that was the subject of the appeal which the primary judge dismissed was a decision to affirm a determination made by Host-Plus Pty Ltd (Host-Plus), as the trustee of the HostPlus Superannuation Fund. Host-Plus had determined to pay 100% of the death benefit of Mr Steele's mother, Jennifer Cole, to her spouse, Stephen Cole. Host-Plus was the first respondent to the appeal which was dismissed by the primary judge, but has not been made a respondent to the present proceedings. AFCA was the second respondent in the proceedings before the primary judge, and is the sole respondent named by Mr Steele on the present appeal.
4. On 27 August 2025, AFCA filed a notice of objection to the competency of the present appeal. In the proceedings before the primary judge, AFCA had filed a submitting notice. The application to dismiss the appeal, which was upheld by the primary judge, was made and prosecuted by Host-Plus. In circumstances where AFCA is the only named respondent to the present appeal, it has acted appropriately in applying to have the appeal dismissed and making submissions in support of that application: cf Lynn v Australian Financial Complaints Authority [2025] FCA 175 (Lynn) at [10]-[13].
5. For the reasons given below, AFCA's objection to the competency of the appeal must be upheld. The grounds on which Mr Steele seeks to rely, to the extent that they can be understood, do not identify any alleged error in the decision or reasoning of the primary judge. The appeal should be dismissed with costs.

1. In accordance with r 36.72, AFCA applied for the question of the competency of the appeal to be heard and determined before the hearing of the appeal. As r 36.72(5) makes clear, the determination of an application under r 36.72 does not involve the exercise of a discretion: if the appeal is held not to be competent, the Court must dismiss the appeal: see, eg, Huang v University of New South Wales [2014] FCA 1337 at [52].
2. An appeal may be incompetent where it is "incomprehensible or entirely unrelated to the issues dealt with in the judgment" from which the appeal is brought: Zegarac v Dellios [2007] FCAFC 58 at [7]. The task of the Court in determining whether an appeal is competent has been said to be "one of determining whether the notice of appeal, as a matter of substance, specifies appellable errors": Singh v Owners Strata Plan No 11723 (No 3) (2012) 207 FCR 390; [2012] FCA 1121 at 396-7 [31].

1. AFCA also raises two additional reasons why Mr Steele's present appeal is said not to be competent. The first of these is that Mr Steele's appeal only lies with leave.
2. Section 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) identifies the appellate jurisdiction of the Federal Court. Section 24(1)(a) states that the Court has jurisdiction to hear and determine "appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court". Although the proceedings that were dismissed by the primary judge were styled as an "appeal", as a statutory appeal from an administrative decision on a question of law, what was involved was an exercise of this Court's original jurisdiction: see, eg, Rana v Repatriation Commission (2011) 126 ALD 1; [2011] FCAFC 124 at 3 [3], 6‑7 [20]; Lynn at [15].
3. Section 24(1A) of the FCA Act provides:

1. Section 24(1D) provides that a decision granting summary judgment under s 31A of the FCA Act is taken to be an interlocutory judgment for the purpose of s 24(1A).
2. The decision of the primary judge was in substance a decision to summarily dismiss Mr Steele's appeal against the decision of AFCA. There is Full Court authority which supports the conclusion that, in these circumstances, an appeal would only lie against the primary judge's decision with leave: see, eg, Dimitrovski v Boland [2023] FCAFC 86 at [21]- [25]. Despite this defect having been pointed out by AFCA in its submissions, Mr Steele has not applied for leave to appeal.
3. It follows that AFCA is correct to submit that the appeal is not competent for this reason. Had this been the only basis on which Mr Steele's appeal was not competent, it might well have been appropriate to have allowed him an opportunity to file an application for leave to appeal (and for the necessary extension of time to seek leave to appeal) and to have ordered that the notice of appeal be treated as a draft notice of appeal subject to the grant of leave.
4. The final basis on which AFCA submits the appeal is not competent is that Host-Plus has not been named as a respondent to the appeal.
5. Rule 36.31(1) of the Federal Court Rules provides that each party to the proceedings in the court appealed from who may be affected by the relief sought on appeal, or who might be interested in maintaining the judgment under appeal, must be joined as an appellant or respondent to the appeal. Host-Plus was the active respondent before the primary judge and the decision of the primary judge was made on an application by Host-Plus that the appeal before the primary judge be dismissed. Host-Plus had an interest in maintaining the judgment under appeal. Further, Mr Steele's notice of appeal seeks an order that Ms Cole's death benefit be distributed in a particular way. If that order were made, Host-Plus would be the party that would be required to comply with it. For each of these reasons, Host-Plus should have been named as a respondent. However, as AFCA appropriately acknowledged, had this been the only defect in Mr Steele's appeal, it could appropriately have been addressed by the making of an order that Host-Plus be joined as a respondent.

(2012) 207 FCR 390