The Australian Financial Complaints Authority (AFCA) has welcomed a ruling by the Federal Court which reaffirms the legal requirement for financial firms to co-operate with AFCA to achieve the effective and efficient resolution of complaints.  

Home finance companies General Commercial Group Pty Ltd (formerly known as Urban Commercial Group Pty Ltd) and Eden Capital (Australia) Pty Ltd (formerly known as Southside Lending Services Pty Ltd) have each been penalised $50,000 by the Federal Court for failing to cooperate with AFCA. 

In addition, General Commercial director Dale Brendan Heremaia and his son, Eden Capital director Benjamin Eden Heremaia, were ordered to pay $30,000 and $20,000 respectively for their roles in the contraventions.  

The Federal Court case was brought by the Australian Securities and Investments Commission (ASIC), which regulates the financial services sector and has oversight of AFCA. 

The judgment by Justice Downes said: “Cooperation by AFCA members with AFCA is important to the effective running of the AFCA Scheme.” 

Justice Downes said the conduct involved “undermined the effective operation of AFCA’s processes and the resolution of the complaints by the consumers”.   

AFCA’s Chief Ombudsman, David Locke, said after the judgment: “AFCA welcomes the court’s ruling and its recognition of the need for financial firms to cooperate with AFCA. 

“The vast majority of the members of our external dispute resolution scheme do work in partnership with us, and this is to the benefit of firms as well as consumers.”  

Justice Downes found the failure of the respondents to co-operate with AFCA constituted a breach of the National Consumer Credit Protection Act. The judgment said the respondents had  

• failed to provide documents and information requested by AFCA  
• commenced proceedings against complainants and an AFCA staff member  
• had been uncooperative in communications with AFCA  
• initially failed to pay an AFCA determination  

Individual consumers and small businesses are entitled to bring a dispute to AFCA, free of charge, if they have not been able to resolve their complaint directly with a firm. AFCA is required to resolve complaints in a way that is fair, efficient, timely and independent. 

AFCA received more than 70,000 complaints in 2021-22, most of which were resolved by agreement between complainants and firms with its help. AFCA issued about 5,000 formal decisions in cases where agreement could not be reached between the parties.  

AFCA has summarised the behaviour it expects of all users of its service – including firms, complainants and AFCA employees – in the AFCA Engagement Charter. Key to the Charter is AFCA’s expectation that all parties cooperate reasonably with the common goal of bringing finality to a complaint. The Charter says all parties should engage with each other and AFCA in a way that is transparent and honest, respectful and fair, in good faith, and efficient and cooperative. 

Mr Locke said: “AFCA recognises that a financial dispute can be stressful, but we require all parties to engage with our staff and each other in a co-operative and respectful manner at all times.” 

• For more information about the Federal Court case see the ASIC media release. 
• The judgment is available here. 

Published: 24 January 2023

Media enquiries media@afca.org.au

About AFCA

The Australian Financial Complaints Authority (AFCA) is a non-government ombudsman service providing free, fair and independent help with financial disputes. It is a one-stop-shop for consumers and small businesses who have a dispute with their financial firm, over things such as banking, credit, insurance, advice, investments or superannuation. Where an agreement cannot be reached between parties, AFCA can issue decisions that are binding on financial firms.