Mickovski v Financial Ombudsman Service Limited & Anor

(2012) 36 VR 456; [2012] VSCA 185

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Datafin principle
4. › Alternative dispute resolution scheme established pursuant to statute
5. › Whether decisions of Financial Ombudsman Service susceptible to judicial review
6. › Whether FOS exercises public duty or function involving public element
7. › Corporations Act 2001 (Cth), s 912A(1)(g)
1. Contract
2. › Domestic tribunals
3. › Alternative dispute resolution
4. › Tripartite contract arising from submission of dispute to FOS
5. › Formation
6. › Consideration
7. › Whether submission to dispute resolution process constitutes sufficient consideration
1. Contract
2. › Domestic tribunals
3. › Finality clauses
4. › Meaning of 'final' in contractual context
5. › Whether contractual finality clause precludes review of non-jurisdictional error of law
6. › Distinction between jurisdictional and non-jurisdictional error
1. Contract
2. › Domestic tribunals
3. › Review of decisions
4. › Whether decision of domestic tribunal reviewable in contract
5. › Scope of contractual review where decision affected by error of law but not fraud, dishonesty or lack of good faith

Quick Take

Decisions of the Financial Ombudsman Service are not susceptible to judicial review under the Datafin principle because FOS's power derives from contract and it does not exercise government functions. A tripartite contract arises between complainant, member and FOS upon lodging a complaint, but where the terms of reference provide that a Panel Chair's decision is 'final', only errors equivalent to jurisdictional error (fraud, dishonesty, lack of good faith, or failure to carry out the determination in accordance with the agreement) are reviewable — ordinary errors of law in the exercise of jurisdiction are not. The question whether the Datafin principle forms part of Australian law remains open.