VIC Voice Recording - Recorded Phone Calls Acceptable?

[Mike Love]

Hi all,

In Victoria, I understand that calls can be recorded between two people without the consent of the other party.

However, their use in court may or may not be admissible.

My question is, I have relied upon some voice recording from recorded phone calls in my FOS/AFCA banking ombudsman complaint, regarding a large amount of money losses. FOS/AFCA said that they will not allow any recorded calls to be used in their case if consent was not granted. Does anyone know the merits of this blanket ruling?

Thanks!

 

[Rod]

No.

It is not entirely unreasonable as audio recordings can be faked or modified fairly easily these days.

However you should be able to write your conversations down in your submission as per a transcript, but without calling it a transcript.

 

[Rob Legat - SBPL]

It is important to note that AFCA (who have taken over all outstanding FOS matters) is not a court or a tribunal - it's the ASIC endorsed external dispute resolution scheme. It operates according to its own rules and guidelines, as approved by ASIC.

AFCA's rules specifically state (Rule A.14.3):

"An AFCA Decision Maker is not bound by the rules of evidence or previous AFCA or Predecessor Scheme decisions."

This means (within a wide scope of reason) they can decide what they will and will not accept as evidence, in any individual circumstance.

As a consumer, you're not bound by AFCA's decision. The scheme member (i.e. who you are complaining about) is bound by the decision if one is made.

I endorse going with Rod's suggestion. Just make sure to only include relevant information.

 

[Scruff]

The reason for not allowing recordings is probably because AFCA either wants to, or is required to, have the same rules for everyone.

Since AFCA is a national ombudsman, not a state ombudsman, and recording private conversations is only permitted in half the states, it makes sense that they would not accept such recordings. So their rules in this regard do have some merit.

I recommend that you follow the guidance provided by the experts above.

I would however like to add that if you have already advised AFCA of the recordings, they may reject your written statements on the grounds that the information came from those recordings. Although this is unlikely, it could happen. If it does, post back here and we'll see if we can help further.

 

[Rod]

... they may reject your written statements on the grounds that the information came from those recordings.

This is the reason the OP is not to mention the written conversations came from recordings.

 

[Scruff]

This is the reason the OP is not to mention the written conversations came from recordings.

I did see your recommendation about that and I agree.

My comment merely assumes that the OP has already tried to submit the recordings to AFCA and if so, being an Ombudsman type of service, they keep case files and would therefore already be aware of the existence of the recordings. If they play hardball (and note that I have no idea of what AFCA is like to deal with), then they may reject any statements relating to phone calls because they are aware of the recordings.

The purpose of my post was therefore to simply let the OP know that if that should happen, then don't just give up (especially if what was said in the calls is material to the complaint). Come back here and let us know what happened, as I'm sure that someone will be able to help further. (It's just one of those "hope for the best - prepare for the worst" type of things.)

 

[Mike Love]

Thanks so much for the responses so far. Just to clarify, it was more an issue of "consent" rather than being a genuine call.

I pointed out that the bank records all calls, and we both consented to the same calls - so they said they would accept recorded calls with the bank. Just not the valuer who dropped the bank in the s*%$.

But I did make a transcript of the calls anyway.

On a side note - the AFCA state they do not investigate anything, just rely on evidence given.
They asked me if consent was given in the other calls - if I were to say "yes" or "no", then presumably they wouldn't check either way?

I'm not saying I would lie, but regardless of what I say, would they just accept my word?

 

[Scruff]

I would assume that they will contact all relevant parties to obtain certain information. That may or may not include confirming your claims regarding consent.

You should, therefore, assume that they will check this.