The law firm behind a series of class actions against Australia's top three telcos over late payment fees has put the legal action on hold pending the outcome of a similar court battle against ANZ Bank.
Steven Lewis, principal solicitor for ACA Lawyers, which intended to launch separate actions against Vodafone, Telstra and Optus, said the outcome of a late payment fee case against ANZ would influence its decision on whether to continue to pursue the carriers.
Following an appeal by the bank, the full court of the Federal Court recently found that late credit card payment fees of $20 and $35 that ANZ charged customers were not overly harsh and unconscionable, overturning a decision last year by the Federal Court.
Lewis said that the ANZ case, filed by law firm Maurice Blackburn on behalf of its customers, pivoted on the same legal issues that the class actions would confront.
He noted that the full court of the Federal Court found that ANZ’s late payment fees were not unreasonable compared to the costs the bank calculated it could potentially bear looking forward from the time customers signed contracts with it.
“That does not mean that every late fee is reasonable, but clearly anyone contemplating another class action on the same legal principle would be prudent to wait and see what the High Court does,” Lewis said.
Lewis was referring to Maurice Blackburn’s intention to seek special leave to appeal the matter to the High Court, which it flagged immediately after the full court handed down its decision last Friday.
At the time, ACA Lawyers said it still intended to pursue the telcos, but Lewis conceded that the firm would examine the High Court’s reasoning closely before further investing time and money preparing its case against carriers.
The company also softened the language on its website inviting telco customers to participate in the action shortly after the full court handed down its ruling.
“Although the court has said that late payment fees can be unlawful penalties, a recent decision held that certain bank late payment fees are not unlawful. This decision will likely be appealed to the High Court of Australia," it wrote.
"Regardless, other late fees such as those charged by the telcos could still be found to be unlawful, and we are continuing to investigate and accept registrations for the proposed telco class actions."
ACA Lawyers claims Telstra has unlawfully pocketed $272 million in gains from charging customers a flat fee of $15 for late bills worth over $70.
It also said Vodafone charged customers $10 per late payment while Optus charged $15 for late payments on bills exceeding $50.