The unprecedented class action against late payment fees on credit card bills had a win of sorts yesterday, with the Federal Court ruling the fees were unlawful, extravagant, exorbitant and unconscionable. For the man who led the case, it’s a battle won in a long war.
In a statement posted on its website soon after the ruling, ANZ Australia chief executive Philip Chronican stressed the court had dismissed four of the five claims members of the class action had made against the bank, including allegations the bank charged unreasonable fees for dealing with dud cheques and late payment of overdraft dues. Later in the day the bank announced it would appeal the ruling that its fees for late payment of credit card bill were unlawful and exorbitant.
So even though yesterday Her Honour Justice Michelle Gordon ordered parties to the dispute to get together quickly to discuss refunds for credit card customers deemed to have been charged exorbitant fees, it doesn’t look as though payouts will be imminent, especially as the instigator of the class action, James Middleweek, said yesterday an appeal might well be lodged against all four of Gordon’s decisions in favour of the bank.
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Middleweek, a former London stockbroker and law graduate, came to Australia with his family about eight years ago, following an unfair dismissal case against his then-stockbroker employer, Collins Stewart. The case led to a legal free-for-all and the intense interest of the financial world. The writs flew. During the seemingly ever-widening stoush, Collins Stewart sued the Financial Times for mega millions, claiming that part of the FT’s coverage of the unfair dismissal case had damaged its business interests. Middleweek ended up suing his legal team. But with the eclat of an operetta finale, it all ended up amicably with comparatively very modest settlements, apologies and handshakes all around.
Even so, the experience Middleweek gained during that lengthy legal action and constant media attention may well account for his seemingly dauntless persistence in pursuing Australia’s banks for overcharging.
Soon after he and his family settled in Perth, he formed his own company, Financial Redress, and with the help of media coverage recruited fuming bank customers to his class action. He pointed out in countless media interviews that he had been appalled to discover many customers were charged $35 for being a dollar over a credit card limit or barely a day late in meeting a credit card payment. Tens of thousands joined the class action. But the costs for a one-man band must have overwhelming. In any event, Middleweek joined forces with the international litigation funding organisation, Bentham IMF Limited, forming IMF (Australia) Ltd, and lawyers Maurice Blackburn.
One of Middleweek’s greatest coups was to get the funding company on side and sufficient finance to cover the cost of pursuing the banks. The deal is that members of the class action, the disgruntled bank customers, will not be liable for any legal costs, although they will be required to pass over 25% of any refunds they receive to the class action instigators.
Middleweek told Crikey yesterday that he expected interest to be payable on refunds to customers. He also expects yesterday’s ruling to lead to class action against Westpac and six other leading Australian banks and perhaps, down the track, to claims against telcos, especially in respect to international roaming charges.
The initial case against the ANZ has already been held up by an appeal. In 2011, the court dismissed claims that the bank had excessively penalised customers who overdrew their accounts, issued dud cheques or failed to make payments on time. But Maurice Blackburn successfully appealed that decision.
Meanwhile, Middleweek expects media coverage of the case will lead to more bank customers joining the class action.