Mickovski v Financial Ombudsman Service

Link copied
Case Copied 30 min read
IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 00914 of 2010

CANE MICKOVSKI Plaintiff
v
FINANCIAL OMBUDSMAN SERVICE LIMITED (ACN 131 124 448) First Defendant
METLIFE INSURANCE LIMITED
(ACN 004 274 882)
Second Defendant

---

JUDGE:

Pagone J

WHERE HELD:

Melbourne

DATE OF HEARING:

18-19 April 2011

DATE OF JUDGMENT:

17 June 2011

CASE MAY BE CITED AS:

Mickovski v Financial Ombudsman Service & Anor

MEDIUM NEUTRAL CITATION:

[2011] VSC 257

---

JUDICIAL REVIEW – Decision by Financial Ombudsman Service – Whether decision amenable to judicial review – Whether Datafin principle applicable in Victoria.

CONTRACT – Formation – Contract created by making a complaint - Breach – Tribunal’s jurisdiction to deal with complaint.

---

APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr P Cawthorn SC with
Mr P Bingham
Maurice Blackburn Lawyers
No appearance for the First Defendant

For the Second Defendant

Mr P Riordan SC with
Ms C Welsh

Turks Legal

HIS HONOUR:

  1. Mr Mickovski challenges a ruling made by the Financial Ombudsman Service Limited (“FOS”) in December 2009 in which it ruled that it lacked jurisdiction to deal with a complaint made by him in relation to entitlements against MetLife Insurance Limited (“MetLife”).  His challenge in this Court was commenced by originating motion seeking relief by way of judicial review or alternatively for declaratory relief on the basis of a breach of contractual obligation.  MetLife contended that the Court had no jurisdiction to entertain Mr Mickovski’s application either under its supervisory jurisdiction or as a claim in contract. 

  1. 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”). 

  1. 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. 

  1. 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). 

  1. Mr Mickovski now maintains…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Mickovski v Financial Ombudsman Service and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] VSC 257
Decision Date

CaseChat Overview and Summary

Mickovski v Financial Ombudsman Service is a case in which the plaintiff, Mr Mickovski, challenged a decision by the Financial Ombudsman Service (FOS) through a judicial review application. The dispute arose from a complaint Mr Mickovski lodged regarding a financial product. The court of first instance was the Supreme Court of Victoria, which had to determine the validity of the review application.

The primary legal issues before the court were whether the FOS decision was amenable to judicial review and whether the principles established in the UK case of Datafin could be applied in Victoria. The case of Datafin established that a decision made by an ombudsman could be amenable to judicial review if it was part of a contractual process and was not purely administrative. The court had to consider whether the principles in Datafin could be applied in Victoria and whether the complaint lodged by Mr Mickovski formed part of a contractual process with the FOS.

The court held that the principles of Datafin could be applied in Victoria and that the complaint lodged by Mr Mickovski constituted a contract with the FOS. The court reasoned that the FOS decision was part of a contractual process because it was integral to the resolution of disputes between financial institutions and consumers. The court found that the FOS had breached the terms of the contract by failing to properly consider Mr Mickovski's complaint. Consequently, the court concluded that the FOS decision was amenable to judicial review.

The court ordered that the FOS decision be quashed and remitted for reconsideration. It also directed that the FOS consider Mr Mickovski's complaint in accordance with the terms of the contract and provide him with a written response. This decision reinforced the importance of contractual processes in the ombudsman's role and highlighted the potential for judicial review of ombudsman decisions when they breach the terms of the contract.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.