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Bank fee class action a test for unfair penalties laws

The federal court last year overturned a previous ruling that fees charged by ANZ were an illegal penalty. Photo: Jim Rice The federal court last year overturned a previous ruling that fees charged by ANZ were an illegal penalty. Photo: Jim Rice
A long-running legal battle over bank fees will soon come to a head, with the High Court this week hearing a final appeal in a multimillion dollar class action against ANZ Bank.

In a case being watched closely in banking and legal circles, lawyers representing ANZ customers will this week appeal against last year's ruling from the full bench of the Federal Court that ANZ Bank's credit card late payment fees were legitimate.

At the heart of the debate – which will determine the fate of class actions against seven other banks – is whether ANZ imposed unfair penalties when it charged customers up to $35 for being late paying their credit card bill.

A 2014 ruling from Justice Michelle Gordon, who is now a High Court judge, found the fees were unfair penalties because they easily exceeded the 50c to $5.50 cost to the bank of a customer paying late.
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But this was overturned last year when the full bench took into account a much broader range of potential costs to the bank, including the impact on provisioning for bad debts and regulatory capital.

Andrew Watson, head of class actions at Maurice Blackburn, the firm representing ANZ customers, said the law firm would argue the Federal Court's reasoning threatened to make the law of unfair penalties an "empty vessel."

That is because other corporations would be able to mount similar arguments about their costs to defend high fees, he said.

"Our argument is that if you leave the full court's reasoning as it is, you denude the doctrine of penalties of any meaningful content," Mr Watson said. "You just render it an empty vessel."

ANZ Bank has maintained the fees were legal and the costs to the bank of a customer being late were greater than the 50c to $5.50 range accepted by the Federal Court in 2014. The Federal Court Chief Justice James Allsop said in last year's ruling in ANZ's favour that courts should not assume the "role of a price regulator."

Legal action against seven other big banks including Westpac and the Commonwealth Bank – which could be worth hundreds of millions of dollars – hinges on the result of the case.

"The truth of it is this is a test case really for all banking customers in Australia who have ever paid a late fee," Mr Watson said.

The action against ANZ, funded by IMF Bentham and attracting 43,500 customers, was launched in 2010. There will be no further avenues for appeals after the High Court's decision, expected later this year.

Aside from the impact on banks, the legal principles being debated in the case may also have implications for other late payment fees such as those charged by electricity or telecommunications companies.

Mr Watson argued ANZ's claims about the potential costs to the bank of late payments were similar to scenarios where a butterfly flapping its wings in Brazil could cause an earthquake in Japan – and big companies would use similar logic to defend high fees.

"Big corporations will just always be able to come up with some sort of butterfly wings in Brazil causes earthquakes in Japan scenario," he said.

Author: Clancy Yeates
Source: Sydney Morning Herald
Last modified onMonday, 01 February 2016 19:06

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