Hi there. Unfortunately, your question was not answered sooner by a lawyer. The LawAdvisor Research Team has picked up your question and provided some general advice in relation to your situation. Remember, you still have the option of consulting a lawyer directly at any time by pressing the “Consult a Lawyer” button.

The Financial Ombudsman Service (FOS) (www.fos.org.au) is an independent dispute resolution service for consumers who are unable to resolve complaints with financial service providers, such as banks. From the information you provided, it appears that you lodged a complaint against a bank with the FOS, it was investigated and a ‘Determination’ was made in relation to the dispute. A Determination is a written decision made by the FOS regarding the outcome of the dispute which outlines details of the dispute, the reasons for the decision and any remedy the FOS considers fair and appropriate.

A Determination is a final decision and is binding on the financial services provider (i.e. the bank) if the person who lodged the complaint (the applicant) accepts the Determination within 30 days of receiving it. You said that you signed the Determination in your dispute – which is an indication that you accepted it – but you said this was done under duress. As you correctly pointed out, the FOS Terms of Reference, which set out the FOS’ powers and procedures, state that in order to accept a Determination, the applicant must provide the bank with a binding release from liability in respect of the disputed matter(s). The effect of this release is that the applicant cannot later sue the bank for the same matter, and that the Determination is the total and final decision on the matter.

If you did not sign a release in favour of the bank, then you arguably did not properly accept the Determination in accordance with the FOS Terms of Reference, rendering it not binding. In any case, and regardless of the fact that the Determination may not have been properly accepted, decisions of the FOS are not binding on applicants such as you. This means you still have the right to commence legal proceedings in a court or take any other legal action available against the bank. Note that the FOS operates on a ‘without prejudice’ basis. This means that information you obtained through the dispute resolution process may generally not be used in any subsequent court proceedings.