AFCA is consulting on changes to its Rules and Operational Guidelines.

The proposed changes include:

• allow AFCA the discretion not to entertain a complaint or to exclude a Paid Representative (other than a lawyer with a current practising certificate or an Accountant) from participation in the scheme in certain circumstances where there is inappropriate conduct. The proposed amendments would give AFCA discretion to exclude a Paid Representative where there is inappropriate conduct for a continuous period of up to 12 months.
• AFCA may decide that it is not appropriate to continue to consider a complaint, in circumstances such as when the Complainant has suffered no loss or the Financial Firm has appropriately compensated the Complainant for their loss, or has offered the Complainant an appropriate remedy or compensation, which has not been accepted.
• AFCA may exercise its discretion to exclude a complaint when the Complainant has reached a full and final settlement with the Financial Firm about the subject matter of the complaint, unless the Complainant can show that the settlement was obtained by fraud, duress or misleading and deceptive or unconscionable conduct or that the issue the subject of the complaint was not part of the settlement terms.
• allow AFCA to exclude complaints from sophisticated or professional investors from AFCA’s jurisdiction, unless there is evidence that they had been incorrectly or inappropriately classified.
• clearly specify that, if a Complainant does not accept a Determination made by AFCA, neither the Complainant nor the Financial Firm is bound by the Determination.

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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.