22-176MR Court finds Select AFSL and its agents acted unconscionably when selling insurance products: Royal Commission case study

In proceedings issued by ASIC, the Federal Court has found that Select AFSL Pty Ltd (Select), BlueInc Services Pty Ltd (BlueInc) and Insurance Marketing Service Pty Ltd (IMS) engaged in unconscionable conduct when selling life, funeral and accidental injury insurance.

The Court also found that Mr Russell Howden, the managing and sole director of Select and BlueInc, was involved in some of the contraventions and breached his duty of care and diligence as a director.

Select was the subject of a case study considered by the Financial Services Royal Commission (Experiences with financial services entities in regional and remote communities).

In 2018, ASIC conducted a review of the direct life insurance industry and found consumers were being harmed by poor sales practices. The review also found Select’s conduct to be one of the most egregious. ASIC prioritised holding the company and its director to account by taking court action against Select.

ASIC’s case focussed on the mis-selling of insurance over the phone to 14 consumers, ten of whom lived in remote communities. English was not the first language of many of the consumers, and some did not fully understand the products being sold to them or that they had even been sold the insurance.

ASIC Commissioner Sean Hughes said, ‘In making findings of unconscionable conduct, the Court has emphasised that consumers must have the opportunity to understand and consider the features of the insurance product they’ve been offered. ASIC will pursue those who take advantage of consumers, wherever they are, and including in remote parts of Australia. This case serves as a reminder to insurers to ensure their distributors act appropriately and put the needs of consumers first.’

The Court also found that Select and BlueInc provided conflicted remuneration to sales agents, namely, a cruise to the Gold Coast, a Vespa scooter and trips to Las Vegas and Hawaii.

‘ASIC is resolutely committed to protecting the most vulnerable consumers where they are targeted by mis-selling. A key driver of Select’s mis-selling was the unlawful sales incentive programs created for the agents, which were condoned by the companies’ managing director,’ concluded Mr Hughes.

The Court also found Select, BlueInc and/or IMS contravened the law by:

– coercing four of the consumers to sign up to policies by using pressure tactics such as speaking too quickly, rushing through the sales calls and ignoring repeated objections and requests for time by consumers to consider whether they wanted to buy the insurance;

– unduly harassing five of the consumers by repeatedly contacting them and seeking payment of premiums for a policy they did not want, or could not afford;

– making misrepresentations to 13 of the consumers about the insurance, including that optional extras formed part of a standard policy when they were an extra cost and that there were no or limited exclusions to the insurance; and

– failing to act efficiently, honestly and fairly when providing financial services in running its ‘Refer a Friend’ program. This program saw new consumers incentivised to provide contact details for family and friends without their consent. Select’s agents then implied to those people that the referring customer had endorsed Select’s insurance policies. The Court found Mr Howden was also involved in this contravention.

In making a finding of unconscionable conduct in respect of a sales call, Justice Abraham observed, ‘It can readily be inferred from the call, and the manner in which it progressed, that [the consumer] was not in a position to push back. [The sales agent] kept pushing through, brushing aside her concerns. He took advantage of her position. It would have been obvious to the [sales agent], that he was able to do so.’

A penalty hearing is yet to be listed by the Court.

Background
Select, BlueInc and IMS sold life insurance, funeral insurance and accidental injury insurance issued by St Andrew’s Life Insurance under the brand names ‘Let’s Insure’ and ‘FlexiSure’.

On 30 August 2018, ASIC released REP 587 The sale of direct life insurance, which found that some firms engaged in sales conduct that created risks for consumers buying products they did not want, could not afford or did not meet their needs. It made recommendations to improve sales practices and product design.

In 2019, ASIC announced a ban on the unsolicited ‘cold call’ telephone sales of direct life insurance and consumer credit insurance to address poor sales practices that led to consumer harm. This ban was superseded by reforms to the anti-hawking regime, which took effect on 5 October 2021.

In April 2019, after Select’s conduct occurred, ASIC welcomed the passage of key financial services reforms, including a design and distribution obligations regime for financial services firms and a product intervention power for ASIC (19-079MR).

ASIC’s Moneysmart website has information for consumers about buying life insurance, including how life insurance works, a life insurance claims comparison tool, and a life insurance calculator that help consumers work out whether they need life cover and how much cover they might need.

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