Did FOS breach the Wednesbury law?
Dear Senator Brandis,
The following is a decision arrived at by FOS, verbatim: 'Both (Mr and Mrs C) well
knew in accepting that advice that 60% of the investment funds would be invested in
assets with exposure to "high risk assets".' That statement is being exploited by the
Commonwealth Bank to deny us compensation. We invested in, what the
Commonwealth Bank calls, GROWTH ASSETS. We were financially-illiterate. We had
no idea that GROWTH ASSETS are, in reality, HIGH RISK ASSETS.
Here is an excerpt from a website article entitled 'High Court revives Wednesbury
unreasonableness' written by Cain Sibley, a partner in law firm Clayton Utz, verbatim:
'Similarly, Justice Gageler held that decision-making authority "conferred by statute
must be exercised according to law and to reason within limits set by the subjectmatter,
scope and purpose of the statute."'
FOS is a decision-making authority conferred by statute.
Senator Nick Xenophon says about FOS, verbatim: The term "in its opinion" is
extremely problematic in that, when it comes to determining principles of fairness, it
allows FOS to judge itself. When the courts have examined exactly what boundaries
FOS has in law in respect of fairness, it has been found that "a party to the contract
must establish Wednesbury unreasonableness namely that the decision was one to
which no reasonable decision-maker could properly arrive at on the evidence."
We (my wife and I) are 'a party to the contract' and we have established Wednesbury
unreasonableness FOS made a decision that no reasonable decision-maker could
properly arrive at on the evidence.
I provided FOS with clear-as-crystal evidence that proves it was absolutely impossible
for us to know that any of our funds would be invested in high risk assets. The decision
by FOS (above) was unreasonable and one which no reasonable decision-maker could
properly arrive at.
We joined the Commonwealth Bank's OPEN ADVICE REVIEW PROGRAM with a clear
understanding that, if we are not satisfied with the Commonwealth Bank-appointed
lawyer's assessment of the financial advice we received, an independent review panel
will arbitrate. The lawyer told us, by phone, that an independent review panel will not
be assigned to our case because he (the lawyer) will not issue the certificate that's
needed to acquire one. Our case must go to arbitration.
The Commonwealth Bank has offered us $20,000 (twenty thousand dollars) on
condition that we pull out of the OPEN ADVICE REVIEW PROGRAM.
Greg Cadwallader