Every credit licensee is required to have appropriate procedures in place to handle complaints (s 47(j) the National Consumer Credit Protection Act 2009 (Cth) (“NCCPA”)). Where these procedures fail to produce a reasonable outcome for a consumer, a complaint can be made to a dispute resolution scheme.
Under the NCCPA, it is compulsory for a holder of an Australian credit licence to be a member of an external dispute resolution (EDR) scheme approved by ASIC.
There are currently two ASIC-approved schemes that provide a forum for resolving complaints about credit products. These are the Financial Ombudsman Service (FOS) and the Credit and Investments Ombudsman (CIO). For consumers, complaining to FOS or CIO is free. Although their rules differ, both schemes are intended to provide an easily accessible method for unrepresented consumers to have their disputes heard and determined by a fair and independent decision-maker. Decisions made by FOS or CIO are binding on the relevant credit provider but not on the consumer. If the consumer doesn’t agree with the decision, they can take their case to a court with jurisdiction (see “Going to court”).
To find out whether your credit provider is a member of FOS or CIO, or to lodge a dispute (disputes can be lodged online with both schemes), contact:
Financial Ombudsman Service (FOS)
GPO Box 3, Melbourne Vic 3001
Tel: 1800 367 287
Credit and Investments Ombudsman (CIO)
PO Box A252, Sydney South NSW 1235
Tel: 1800 138 422
Under both the Terms of Reference of the Financial Ombudsman Service and the Rules of the Credit Ombudsman Service, once a dispute is lodged, the member credit provider must not (unless FOS or CIO agrees in writing):
•commence legal proceedings against the consumer in relation to any aspect of the dispute;
•continue legal proceedings it had already commenced when the dispute was lodged except to the minimum extent necessary to preserve its legal rights; or
•take any action to recover a debt that is the subject of a dispute, protect assets securing the debt or assign the debt while FOS or CIO is dealing with the dispute.
Disputes arising in Victoria under the NCCPA can be dealt with by the Federal Court or the Federal Circuit Court, or the Supreme, County or Magistrates’ Court of Victoria.
For some applications under the National Credit Code (NCC), the applicant can choose to have their proceeding dealt with as a “small claims proceedings” in the Magistrates’ or Federal Circuit Court. Small claims proceedings are conducted in a more informal manner, without regard to legal forms and technicalities, and without lawyers (except with the court’s permission). In addition, there is a presumption in small claims proceedings that the court will not award legal costs against the unsuccessful party.
The details of the national jurisdictional framework are set out at division 2 of part 4–3 of the NCCPA. Section 199 lists causes of action that may be brought within the small claims jurisdiction.
Given the broad jurisdiction of EDR schemes to deal with consumer credit disputes, it is unusual for a consumer to issue or defend proceedings in a court when EDR is available (see “External dispute resolution schemes”).
If you need advice regarding a credit or consumer matter you can contact:
Consumer Action Law Centre
Tel (consumer advice lines): 9629 6300; 1800 466 477
Consumer Action operates Australia’s largest specialist consumer legal practice, employing a team of solicitors with expertise in consumer litigation and dispute resolution. Its legal practice aims to achieve redress for low-income, vulnerable and disadvantaged consumers in Victoria who have suffered loss in any one of a variety of consumer law disputes.
If you are unsure whether credit is a good option for you, or you are having difficulty with debt contact a free Financial Counselling Service (for contact details, see Financial counselling services).