The Federal Court had dismissed QSuper’s claim against the Australian Financial Complaints Authority (AFCA) and awarded costs to the government body in April, after the fund argued that AFCA had exercised judicial power in breach of the constitution.
AFCA had ruled that QSuper member, Tommy Lam, was owed a refund after he placed a complaint alleging he had overpaid premiums for death and total permanent impairment cover from July 2016 to December 2018.
Dr Lam discovered he was eligible to pay a lower premium, because he fell within a new professional occupational rating introduced in 2016.
But QSuper had refused to refund any money to Dr Lam, saying that he had been given sufficient information to allow him to apply for changes to his insurance cover and qualify for a reduced premium.
In its appeal against AFCA’s determination, QSuper argued that AFCA had exercised judicial power in breach of the constitution, after the government body had found the industry fund breach section 1017B of the Corporations Act.
But the court found that AFCA did not exercise judicial power, noting that on the way to making a determination about fairness and reasonableness, the government body can make decisions about legal rights, such as compliance with the law or compliance with the trust deed.
Nonetheless, QSuper has maintained that AFCA was not entitled to make the ruling.
“The full bench of the Federal Court, while upholding AFCA’s ruling, accepted that QSuper had likely complied with its statutory disclosure obligations in the case involving a member’s claim for a refund of part of insurance premiums for a period prior to the member personalising his cover,” the fund stated.
“QSuper is concerned that the decision creates further obligations on superannuation trustees already compliant with laws regulated by ASIC and APRA.”
The fund reported its trustees were “satisfied that the ruling, while applying to the individual case, did not raise legal questions about the information provided to all members… in 2016”.
QSuper chief executive Michael Pennisi commented: “With this issue now resolved, QSuper is looking forward to working constructively with AFCA to ensure that member issues are fairly and equitably resolved as quickly as possible.”
Sarah Simpkins
Sarah Simpkins is a journalist at Momentum Media, reporting primarily on banking, financial services and wealth.
Prior to joining the team in 2018, Sarah worked in trade media and produced stories for a current affairs program on community radio.
You can contact her on [email protected].
