The Australian Financial Complaints Authority (AFCA) is tasked with reviewing the internal dispute resolution outcomes of financial services providers for unreasonableness or unfairness. The volume of AFCA determinations continues to increase, particularly in the banking, superannuation and insurance sectors – and with this, there has been an increase in discourse across the financial services sector on whether it is appropriate to challenge an AFCA determination and if so, what the legal mechanism is to do so.
Unlike traditional dispute resolution bodies, the avenues to appeal an AFCA determination are extremely limited. In particular, AFCA determinations are, as a general rule, not subject to judicial review – subject to limited exceptions as discussed below. While the avenues for appeal are limited, it is worthwhile for licensees to be familiar with the available avenues, so that legitimate appeals can be made effectively and in a timely manner.
AFCA determinations can be challenged via the courts on 3 grounds – breach of contract, lack of jurisdiction and question of law (superannuation only).
Through a review of the case law to date and particular attention to successful AFCA appeals, we seek to set out the principles applied by courts in overturning AFCA determinations or assessing whether they are reviewable.
Read our detailed insights here.
If you have any questions or would like assistance with respect to AFCA matters, get in touch with one of our experts below.
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The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.