While assessing complaints, the AFCA considers what is fair in all the circumstances having regard to:
- legal principles,
- applicable industry codes or guidance,
- good industry practice and
- previous relevant Determinations of AFCA or predecessor Schemes
AFCA identifies the relevant legal principles and takes them into account. Legal principles are drawn from relevant legislation (e.g. the Corporations Act 2001 or the Insurance Contracts Act 1984) and case law. If there is a contract between a Financial Firm and a Complainant, AFCA will consider the terms of the contract.
AFCA, however, is not required to strictly apply legal principles. Where AFCA considers that it is fair in all the circumstances it may depart from legal principles.