Alternative dispute resolution schemes

 

An alternative to the traditional court/tribunal system is to utilise private dispute resolution schemes. The particular industry you are dealing with might operate such a scheme, which include the following:

The Energy and Water Ombudsman Victoria (EWOV) investigates and facilitates the resolution of complaints and disputes by consumers against electricity, gas and water providers. Binding determinations can be made up to the value of $20,000 or $50,000 with the consent of all parties.

The Financial Ombudsman Service (FOS) investigates and facilitates the resolution of complaints about a range of financial service providers. FOS members provide financial services including banking (including credit unions), credit, loans, general insurance, life insurance, insurance broking, financial planning, investments, stockbroking, managed funds and pooled superannuation trusts. The FOS’s terms of reference provide that FOS can determine a wide class of cases, including where legal proceedings have commenced for debt recovery (however, the consumer must not have taken a step further in the process other than to lodge a defence or a defence and counter-claim).

FOS has developed a new streamlined process for cases involving financial difficulty, including cases under the new consumer credit laws. This involves expedited decision-making, as well as a telephone conciliation conference in most cases. FOS has a jurisdictional limit of $500,000; however, it imposes “compensation caps”, that is, the maximum value of a remedy that it may award for a particular claim. From 1 January 2015, compensation caps are:

$309,000 for all disputes except general insurance broking ($166,000), income stream life insurance ($8,300 per month) and uninsured third-party motor vehicle claims ($5,000); and

awards for consequential loss up to $3,300 and non-financial loss up to $3,000.

The Credit and Investments Ombudsman (CIO) investigates and facilitates the resolution of complaints by consumers against participating mortgage and credit providers, financial planners, non-bank lenders, credit unions, building societies, debt collectors and payday lenders. Similar to FOS, the CIO can hear disputes relating to claims up to $500,000 but has monetary compensation limits. Since 1 January 2015, the compensation limit has been $309,000.

The Telecommunications Industry Ombudsman (TIO) investigates and facilitates the resolution of complaints and disputes by consumers against telecommunications service providers, including landline, mobile phone and internet services. The TIO can handle complaints where the consumer became aware of the complaint event up to six years before coming to the TIO. However, the TIO will not investigate complaints where legal proceedings have commenced. The TIO can make binding decisions (up to $50,000) and recommendations (up to $100,000).

The Superannuation Complaints Tribunal (SCT) investigates and facilitates the resolution of complaints and disputes by consumers in relation to superannuation funds, annuities and deferred annuities and Retirement Saving Accounts (see Superannuation). The SCT will initially assist consumers to reach an agreed settlement through conciliation. If the complaint cannot be conciliated, the SCT will consider submissions and make a determination. A determination of the SCT is binding on both parties. It is, however, possible to appeal a determination to the Federal Court.

Building Advice and Conciliation Victoria (BACV) investigates and facilitates the resolution of complaints and disputes by consumers in relation to building disputes. The BACV will appoint a conciliator to try to reach an agreement between the parties. However, binding determinations will not be made; if agreement cannot be reached, it may be necessary to refer the matter to VCAT or a court.

Note that the Building Legislation Amendment (Consumer Protection) Act 2016 (Vic) establishes a new building dispute resolution service for Victoria that will replace the BACV. This service, due to begin operation in late 2016 or early 2017, will be free for consumers, mandatory for builders, and have powers to obtain independent expert assessment of building work, and require builders to repair poor work. For more information, see Building or renovating a house.

The Public Transport Ombudsman (PTO) receives, investigates and facilitates the resolution of complaints and disputes between users of public transport services in Victoria and public transport operators. This includes complaints about metropolitan trains, trams and buses, and regional trains and buses. The PTO can deal with complaints about:

tickets, including ticket refunds and malfunctioning tickets and machines;

service delivery, such as cancelled or delayed services;

public transport staff, including authorised officers;

stations and stops;

carriages and vehicles; and

public transport land.

The PTO will attempt to resolve the complaint by agreement, but in the absence of an agreed outcome, the PTO is able to make a determination that may include compensation of up to $5,000. The PTO cannot investigate complaints that are under consideration by any court or tribunal, or complaints about government policies and legislation, including public transport fines.

All these schemes are independent and free, and are less formal and generally speedier than tribunals and courts. You are generally required to give the business a chance to resolve the complaint before the scheme will consider it. When resolving a dispute the schemes are required to take account of law, good industry practice and what is fair and reasonable in all the circumstances.

For details on how to access these and other industry specific schemes, seeContacts”.