Federal Court of Australia MetLife Insurance Limited v Australian Financial Complaints Authority (No 2) [2022] FCA 291 File number: NSD 747 of 2019 Judgment of: COLVIN J Date of judgment: 23 March 2022 Cases cited: Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585 MetLife Insurance Limited v Australian Financial Complaints Authority [2022] FCA 23 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 8 Date of hearing: 23 March 2022 Counsel for the Applicant: Mr S Robertson with Ms C Langford Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: The Second Respondent appeared in person Counsel for the Cross-Claimant: The Cross-Claimant did not appear Counsel for the Cross-Respondent: Mr S Robertson with Ms C Langford Solicitor for the Cross-Respondent: HWL Ebsworth Lawyers ORDERS NSD 747 of 2019 BETWEEN: METLIFE INSURANCE LIMITED (ACN 004 274 882) Applicant AND: AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY (ACN 620 494 340) First Respondent BRIAN RONALD EDGECOMBE Second Respondent AND BETWEEN: AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY (ACN 620 494 340) Cross-Claimant AND: METLIFE INSURANCE LIMITED (ACN 004 274 882) Cross-Respondent order made by: COLVIN J DATE OF ORDER: 23 MARCH 2022 THE COURT ORDERS THAT: 1. The stay of order 2 of the orders made on 16 February 2022 be extended until 4.00 pm (AWST) on 28 March 2022. 2. Upon the provision in writing to Mr Edgecombe of a written undertaking from the applicant to Mr Edgecombe and the Court to prosecute the appeal against the orders made on 16 February 2022 with due expedition, order 2 of those orders be stayed until the determination of the appeal or further order. 3. There be liberty to apply in relation to the stay. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) COLVIN J: 1 These proceedings concern an appeal commenced by Metlife Insurance Limited against certain of the orders made consequent upon my reasons delivered on 27 January 2022: MetLife Insurance Limited v Australian Financial Complaints Authority [2022] FCA 23. Those orders provide for payment by Metlife to the trustee of superannuation funds of which Mr Edgecombe is a member (and for his benefit) of two amounts, one specified in order one and the other in order two. There is no appeal concerning the amount to be paid in accordance with order one. 2 Metlife seeks a stay of order two. Mr Edgecombe, quite properly, has provided information to Metlife and the Court which shows that he has limited financial resources at his disposal. Mr Edgecombe does not wish to be heard in opposition to the stay. However, he has informed the Court that his intention would be to have funds remain in his superannuation fund pending the outcome of the appeal. 3 I described the principles to be applied in Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1585. 4 For the following reasons, I am satisfied that there ought to be a stay. 5 Firstly, the issues that are raised by way of the appeal in respect of the second order made are sufficiently contentious that there is a satisfaction of the requirement for there to be a sufficiently arguable case to support the application. 6 Secondly, I am satisfied that by reason of the availability of the money to be paid in accordance with order one that Mr Edgecombe will have, within the time that it will take for the appeal, sufficient funds available to him given his financial circumstances. 7 Thirdly, if the amount the subject of order two was paid, then Mr Edgecombe is not in a position to be able to prevent funds being paid out to a third party (by reason of a claim to reimbursement of workers compensation payments) and that will expose the prospect that those funds may not be able to be recovered or that orders to effect that result may not be able to be made. 8 Finally, the time period within which the appeal would ordinarily be undertaken in this court is such that I am satisfied that it is appropriate in those circumstances for a stay to be granted conditional upon provision of a written undertaking to prosecute the appeal with due expedition. So for those reasons, I would grant the application for a stay on that basis. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 28 March 2022