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Issue 14 - Winter 2013

Case studies

 

This is a collection of case studies that have appeared elsewhere in this edition of the Circular. It includes the three case studies from the FOS approach document that demonstrate how we assess whether special circumstances apply to documents that are provided to us. You can read more about our approach to this and other issues by visiting www.fos.org.au/approach. More case studies are available on our website at www.fos.org.au/casestudies.

Special circumstances 1

Rob’s FSP denied his motor vehicle claim because it did not believe Rob had been truthful about the circumstances surrounding the loss of his vehicle. Rob lodged a dispute with FOS.

When it investigated the claim, the FSP interviewed Malcolm, whose comments indicated that Rob may have had a hand in his vehicle’s disappearance. The FSP did not want to share the transcript of Malcolm’s interview with Rob because it believed that Rob may attempt to intimidate Malcolm into changing his version of events. The FSP asked FOS to agree that special circumstances applied to the document.

We said that we would not compel the FSP to share this information with Rob. However, we decided that special circumstances would not apply to the document because:

  • The FSP could not show that there may have been repercussions for Malcolm if his version of events was released to Rob. For example, there had been no threats made against Malcolm or his family.
  • The FSP did not suggest any alternative way that it could present the information so that Rob could see and respond to it.
  • The information was very important to the issues in dispute, and if Rob could not respond to the comments then his side of the story would have been prejudiced.

 

In these circumstances, we decided that allowing special circumstances would be contrary to procedural fairness and our commitment to dealing with disputes fairly and transparently. We let the FSP know that if it wanted to rely on the information contained in the transcript of Malcolm’s interview, it would need to share the document with Rob.

Special circumstances 2

Judith owns a small business which suffered a loss when a fire severely damaged the business premises. She made an insurance claim for stock loss, shop refit and business interruption. The FSP had suspicions about how the fire started and denied the claim.

Judith lodged a dispute with FOS. Although we could not consider her business interruption claim, Judith asked us to consider the other two claims and she provided us with a comprehensive report in order to establish her entitlement to payment under her policy.

Judith says there is an extract in that report that contains commercially sensitive information. She wanted FOS to consider the report because it assisted her case, but asked that it not be shared with the FSP.

We considered that Judith had provided a satisfactory explanation as to why she did not want to share that piece of information with the FSP, and we agreed with her proposal for an alternative way to provide the information. This involved blocking out enough information to prevent the disclosure of the commercially sensitive information, while at the same time providing sufficient information to the FSP to allow them the opportunity to respond to it.

In these circumstances we accepted that special circumstances applied, due to the commercially sensitive information and because Judith had suggested a suitable way for the FSP to be able to respond to the general content of the report.

Special circumstances 3

Sarah lodged a dispute with FOS about her FSP’s decision to lend to her $400,000 to help her purchase a home. The FSP provided us with its lending policy applicable to the assessment of Sarah’s loan application, but did not want this information shared with Sarah. The FSP said that the lending policy was commercially sensitive.

We considered that relevant parts of the policy were important to the dispute, and that Sarah needed to have the opportunity to respond to them. The FSP did not suggest any alternative way for the information to be shared with Sarah so we told it that we could not take the lending policy into account when making a decision adverse to Sarah. The FSP then agreed that we could quote the relevant extract from the policy when making our decision.

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