A Brisbane court has rebuked the Federal financial complaints body for prolonged delays in its adjudication of financial services complaints between a major bank and a borrower.

Judge Ken Barlow was considering a further motion to adjourn ANZ bank’s action in Brisbane’s District Court to recover of possession of a residential properties owned by their borrowers Colin and Jane Lawson.

ANZ had started the proceedings in November 2019 but in June 2020 the Lawsons made a complaint to the Australian Financial Complaints Authority (AFCA), the body responsible for adjudicating disputes pursuant to a dispute resolution scheme derived from section 1050 of the Corporations Act.

The scheme contractually binds lenders, their borrowers and AFCA to attempt to resolve disputes pursuant to AFCA rules.

“AFCA is required to consider complaints submitted to it in a way that is, among other things, efficient, effective and timely,” His Honour observed. “The fact that this complaint has been on foot now for over 18 months indicates to me that it is not complying with its obligations”.

Because the complaints body had merely issued a non-binding “recommendation” which the borrowers were not prepared to accept, it still had work to do to come to a “final determination”.

“Of course, how long it will take to do that is anybody’s guess,” Judge Barlow declared.

Having no confidence that AFCA would make a final determination within a short period of time and with the District Court having adjourned the action “time and time again”, he was not prepared “simply to adjourn the matter for another few months”.

His Honour called for submissions as to why the proceeding should not be dismissed for want of prosecution.

Accepting ANZ’s submission that such course should was too harsh a measure, he nevertheless took steps to stem the “costs and inconvenience to the parties, the court and the court’s registry by continually bringing the matter on before the court”.

He did so by imposing an indefinite stay of the proceedings noting that if a party wanted to re-enliven it, they would need to apply to a judge to remove the stay.

He directed the registrar to forward a copy of his ruling to AFCA so it is aware of his criticism.

ANZ Banking Group v Lawson [2022] QDC 41 Barlow QC DCJ, 15 February 2022


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