Non-payment fees, over-limit fees, dishonour fees (when you use
your credit card to buy stuff from infomercials at 2am) - there are
hundreds of them. Okay probably not hundreds but it feels that way.
And as you've probably heard, ANZ was the respondent in a class
action which challenged the legality of ANZ charging these kinds of
fees to its customers.
At first instance, the class action was successful in only one
claim against the bank - late payment fees were found to be an
unenforceable penalty provision, rather than a "genuine
pre-estimate of the loss" likely to be suffered by the bank
(and this is a big nono, as we've
discussed before). On appeal however, the Full Federal Court
has (a) confirmed the ruling that all the fees challenged in these
proceedings were not unconscionable under the various statues and
(b) overturned the earlier finding that the late payment fees were
a form of penalty.
TBH, the main points of the judgment regarding the doctrine of
penalties made our eyes bleed a little. We were more interested in
the Court's opinion on statutory unconscionable conduct,
largely because the Court really wanted to make it clear that:
The primary judge, Gordon J, was 100% correct on principles of
Unconscionable conduct requires 'moral obloquy' - in
other words, some kind of behaviour or conduct that goes against
ideals of fair and just society. In this instance, the Court was
not presented with any evidence that ANZ was preying on the poor,
or that its customers were vulnerable and required protection, or
that its customers were forced into opening accounts, or that ANZ
did not clearly disclose relevant fees in its document - generally
that ANZ did not trick or act in a secretive or dishonest manner
with its customers. Accordingly, ANZ did not act
The Court also stressed that the intention of unconscionable
conduct laws was not for the court to become a 'price
regulator' in otherwise honest business dealings. Because
that's not their job. Don't make them do it.
We think the Court was right. The class action people have
confirmed they are appealing to the High Court, so it will be
interesting to see what arguments they think will overcome
longstanding principles of what constitutes unconscionable
In our view, best bet is to keep on top of your accounts or shop
around for no-fee accounts and cards. And stop buying stuff from
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