ANZ ruling won’t affect NZ case: lawyer

by Hannah Norton15 Apr 2015
An Australian court ruling reversing the ANZ bank class action has no direct effect on the New Zealand case, the lawyer leading the legal battle says.

Last Wednesday the Australian Federal Court accepted the ANZ’s appeal against a class action claiming late payment fees were “extravagant, exorbitant and unconscionable”.

Acting on behalf of 43,500 Australian ANZ customers, Australian firm Maurice Blackburn is set to seek leave to appeal to the High Court.

The man at the helm of the New Zealand case, civil litigation specialist Andrew Hooker, did not believe the ruling would affect the case; which has been dubbed ‘New Zealand’s Fair Play on Fees Campaign’.

“Given that it is almost certainly under appeal - and that the circumstances are quite different in Australia - it has no direct legal effect on the New Zealand case, and the New Zealand case will stand on its own merits,” Hooker told NZLawyer.

The New Zealand representative action includes around 40,000 customers of ANZ, Kiwibank, Westpac, BNZ and ASB banks in a campaign bankrolled by litigation funding firm Litigation Lending Services (NZ) Ltd.

At the crux of the legal argument is the ‘penalty doctrine’, which stipulates that default fees must be proportionate to the loss suffered by the other party.

All parties to the action had agreed to a stay until the Australian decision was reached.

“Now they are off the stay, and we are waiting for the court to notify us of the case management conference.”

Hooker described the emergence of class actions in New Zealand as a “great thing”.

“I think class actions provide a way for consumers to join together and be a bit more powerful than individuals.

“It’s a good way of holding our large corporates to account and keeping them on track. I think there should be more of it.”

More lawyers were learning how to do representative actions, despite the fact the concept was yet to be codified in legislation, he said.

“They are common law representative actions,” Hooker told NZLawyer.

“Until we can get some formal class action legislation in force, it makes the process a little bit more cumbersome. But eventually I think the New Zealand legal system will get used to this; and I think it’s going to be a good thing.”

A Class Actions Bill was released for consultation in 2008, with a final draft sent to the Secretary for Justice in 2009.

In 2012 the Commerce Commission supported the introduction of a class actions regime following the finance company failures.

It appears no progress has been made since.

Meanwhile, in Australia, a recent report by Allens found that class actions have become increasingly common and that companies in Australia are more likely to face class action litigation than in any other jurisdiction, other than corporations operating in the United States.

A report by Maurice Blackburn on the other hand, said that the number of class actions in Australia remains low and steady. It concludes that there have only been 15 class actions in the Federal Court every year since the inception of the regime, amounting to just 0.3 per cent of the 5,000 matters filed in the Court each year.