From: Lena Anderson
Sent: Thursday, 2 May 2019 6:08 PM
To: Marshall, Jesse (C. O'Neil, MP)
Subject: Re: Update - Westpac/Anderson matter
I'm writing to follow up on the status of Westpac's response to Clare O'Neil's letter of 1 November 2018 and to seek clarification on Labor's commitment to assist bank litigation victims like myself who have been harmed by flawed court judgments.
It appears Westpac is refusing to respond to Clare's letter. We've since had the Access to Justice Senate Inquiry to which I made a submission (Submission 73). Westpac's response failed to address the allegations made and merely referred back to the court judgment as its response. (Refer attached). And herein lies the problem for bank litigation victims. The false court judgment is used by the banks as the final word.
It appeared Recommendation 10 of the Senate Inquiry report would apply in my case. It recommends a scheme to review cases "where the existing determination is manifestly unjust, unfair, erroneous, or failed to consider claims that were clearly open to the customer". But Eleanor Willcox (Office of the Hon Mark Butler MP) has confirmed in writing to a BankWest victim that "matters that are subject to court judgments will only be able to be considered by the scheme with the consent of the financial services provider".
As there is zero chance of that consent being provided it seems this scheme is not viable.
Then there is also the Retrospective Scheme announced by Labor on 22 February, 2019.
Could Clare please provide clarification on which of these schemes - the Retrospective scheme or the Recommendation 10 scheme - my case would fit into given I have a court judgment against me which the bank will refuse to be contested?
Mon 06/05/2019 17:57
Thanks for getting in touch about your case and about the retrospective compensation scheme that Labor announced in February.
As you note, the retrospective compensation scheme that Labor has announced will allow victims who have a dispute with a bank that has been to court or to an ombudsman scheme (such as FOS) to have the matter reviewed with consent of the financial service provider (FSP).
Cases that haven’t been to FOS or to Court previously will also be able to be considered by the scheme, as will those cases where the FSP is now insolvent. Many of these cases wouldn’t be able to be considered at all by the far more limited review process through AFCA that the Liberals have proposed.
The reason that the consent of the bank or other FSP is required in Labor’s scheme where a matter has been to Court is because of the separation of powers in the Australian Constitution.
We would expect that banks would agree that in some cases, where the substantive issues in a case have not been determined by a Court (such as where there is a default judgment or a defence was not entered), to have the scheme review the matter.
The scheme will determine which cases that have been to Court it believes should be reconsidered, and it will then write to the relevant bank to request their consent to consider the matter.
I understand that you believe that because your dispute has progressed so far through the Courts, Westpac may not agree for the scheme to consider it. Unfortunately, once a matter has been considered by the High Court of Australia, there are not many other avenues to have the issues reconsidered. I know that this may be frustrating, and that your dispute with the bank has caused you a great deal of stress. It is not possible, though, for any Government or any political party to promise to establish a scheme that has the power to unilaterally overturn decisions of the High Court without consent of the parties to have the matter reviewed and be voluntarily bound by the decision of the reviewer.
Whilst it is unfortunate that it may not be able to assist in your dispute, Labor’s retrospective compensation scheme will have the capacity to assist thousands of Australians who are victims of bank misconduct, and we are working day and night to try and get a fairer deal for victims wherever and however we can.
All the best
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