Pursuing complaints, dispute resolution & conciliation

Most credit providers will have a mechanism for making complaints and raising disputes. Where our client disputes the debt or has a complaint about the conduct of the relevant credit provider or service provider to whom the debt is owed and our client has not yet raised this complaint, we can assist our client to make a complaint.

If the credit provider or service provider holds an Australian Credit Licence or an Australian Financial Service Licence, then that entity must have an internal dispute resolution process. ASIC has published regulatory guidance which sets out ASIC’s expectation for such processes – see ASIC Regulatory Guide 271 Internal dispute resolution (RG 271).

Details of how to make a complaint should be available on the website page of the relevant licence holder.

Even where the debt is owed to someone other than a licence holder, our client may be able to access a complaints process operated by the creditor.

If our client wishes to raise a complaint that disputes a debt, we should assist our client to raise this complaint directly with the creditor in the first instance where possible. Our client may only be able to progress to a dispute resolution process like AFCA or the Telecommunications Industry Ombudsmen (TIO) if it has first attempted to resolve the complaint directly.

If our client wishes us or another service provider to represent it when making the complaint, we will usually need to provide evidence of our client’s authorisation before the creditor will speak to us (or any other third party representative). Having regard to privacy obligations, a creditor may not be willing or able to disclose personal information to a third party.

A client may need to exhaust internal dispute resolution mechanism before progressing other remedies including by taking the matter to a an external dispute resolution service.

AFCA is an external dispute resolution body that independently assists consumers and small businesses to make and resolve complaints about financial firms.

Our client may have a right to make a complaint with AFCA if it is not satisfied with the outcome of a dispute with a financial firm or if the financial firm has not responded to a complaint made by our client.

Our client can lodge a complaint in a number of ways including through an online process from its website. The expectation is that a complainant would attempt to resolve their dispute with the financial form before seeking resolution by AFCA and AFCA would usually contact the financial firm requesting it to resolve the dispute before proceeding to determination.

AFCA’s website also contains information about how our client may appoint a third party (including us or another service provider or family member) to represent it for the purposes of the complaint.

AFCA does not charge consumers for access to its dispute resolution services, so seeking resolution through AFCA is a good option for a client who does not have the capacity to commence proceedings in a court.

Providers of regulated consumer credit and retail financial services are required to be members of AFCA. AFCA can therefore consider a wide range of complaints about home loans ,credit cards, car loans and other personal loans (including SACCs and MACCs) provided by licensed entities. However, there are some restrictions. For example, AFCA cannot hear complaints about older matters or complaints where the loan exceeds a high monetary threshold. AFCA cannot hear complaints about matters that have already been considered by it or which are before a court.

Other credit providers that provide loans to individuals and small businesses can elect to be members of AFCA, even if they are not regulated under credit legislation. For example, a provider of ‘buy now pay later’ loans or small business loans may be a member of AFCA. You can check the list of AFCA members on its website. AFCA has no standing to hear disputes relating to financial firms that are not members.

AFCA is not a court of law, but its decisions bind its members. AFCA tries to consider a lens of fairness. The types of issues that AFCA considers include where a financial firm:

• breached a law or duty (where they made an error or did not act in accordance with an agreement or arrangement our client made with them, or that they were required to meet, when providing our client with the product or service), or a code of conduct;
• did not tell our client about a fee, charge, premium, rebate or interest rate or misrepresented it to our client, or if they made a mistake when they calculated it;
• misled our client about a product or service our client obtained from them; or
• didn’t provide our client with assistance in relation to any financial difficulty that our client was experiencing.

AFCA members are bound to comply with the AFCA Rules. These rules prevent members from progressing enforcement activity while the dispute is being considered.

For more details about AFCA, how to lodge a complaint and the types of matters that AFCA can (or can’t) hear, please see AFCA’s website at: Home | Australian Financial Complaints Authority (AFCA)

If our client has a dispute in relation to telecommunications (phone or internet) and has not been able to resolve it with the provider, then our client may be able to access the external dispute resolution scheme operated by the TIO. This service is provided without charge. You can check whether a particular provider is a member of the TIO dispute resolution scheme by a search on the TIO website.

If our client wants us (or one of its other service providers) to be its representative, it must give permission for that person to act on their behalf.

The TIO may ask our client to complete an authorisation form to give the representative written permission to make the complaint on their behalf. The TIO will advise if and when this needs to occur.

The TIO can only make binding decisions about complaints involving amounts up to $100,000.

Generally, the TIO will only hear a problem that occurred within the last two years or that the individual became aware of in the last two years. However, the TIO may still be able to help with complaints that are up to six years old, depending on the reason for the delay. We or our client can contact TIO for further information about this.

The TIO can help with our client’s complaint about how the provider, or its collection agents, have collected debt for overdue charges.

The TIO deals with complaints about debt collection such as:

• consumers being pursued for payment of charges in dispute;
• providers selling debts without telling the consumer;
• harassment by collection agents;
• debt collection that continues after bankruptcy or the end of the limitation period – that is, the period in which a creditor is legally allowed recover debts.

A complaint can be made to the TIO in a number of ways. This includes through the online complaints process accessible from the TIO website.

For more information about TIO complaints processes see the TIO website at: Home | Telecommunications Industry Ombudsman

If our client is not able to progress a complaint through an external dispute resolution scheme like AFCA or the TIO there may be other avenues available to it.

For example, if the debt is owed with a trader or service provider who is a member of an industry association or participates in another ombudsmen scheme, then the industry association or ombudsmen may have processes for dealing with the complaints of its members. The Queensland Government lists a number of relevant bodies (including for example the Airline Consumer Advocate, the Energy and Water Ombudsman Queensland and the Tolling Customer Ombudsmen) on its website.  Our customer may also be able to make a complaint to the OFT.

The OFT acts on complaints by consumers about traders’ activities. They won’t investigate or negotiate on behalf of every consumer who makes a complaint. They may refer our client to another relevant agency if they do not consider themselves to be the correct forum.
However, an OFT process may be worth considering, particularly if the dispute is not one that can be resolved through one of the external dispute resolution services or industry bodies described above.

The complaint form is accessible here.

OFT can act as an intermediary to conciliate a dispute. This service is free and can avoid legal action. The OFT does not have power to make an order or force a business to provide a refund or other remedy (such as waiving a debt).