Notesco Pty Ltd v Australian Financial Complaints Authority Ltd (No 2)

Notesco Pty Ltd, a financial services provider, initiated legal proceedings against the Australian Financial Complaints Authority Ltd, seeking a declaration that the Authority had no jurisdiction to deal with a complaint made by a customer, and a review of the Authority’s decision to uphold the complaint. The case was heard in the Federal Court of Australia. The plaintiff contended that the Authority had no jurisdiction to review the complaint, either because the complaint was outside the Authority’s legislative mandate or because the complaint was made outside the statutory time limits. Alternatively, the plaintiff argued that the Authority’s decision to uphold the complaint was unreasonable and should be quashed.

The court had to determine whether the Authority had jurisdiction to hear the complaint, and if so, whether the Authority’s decision was lawful, reasonable and justified. The court found that the Authority did have jurisdiction to hear the complaint, as it fell within the Authority’s legislative mandate and was made within the statutory time limits. The court also found that the Authority’s decision to uphold the complaint was lawful and reasonable. The plaintiff’s primary arguments, therefore, failed. However, the court did find that the Authority’s defences were wholly unsuccessful, and that the plaintiff had succeeded on a minor contention which occupied a small portion of the hearing.

Given the outcome, the court found that making the defendant pay the full costs of the proceedings would be unfair and create hardship for the defendant. The court considered the defendant’s financial circumstances and the public interest in ensuring access to justice. The court ordered that the defendant pay 50% of the plaintiff’s costs on a party and party basis. This outcome recognised the importance of ensuring access to justice for consumers while also recognising the Authority’s role in upholding financial services consumer protection.