Justice Michelle Gordon said today that allowing the bank to put the case on hold while a Deloitte accountant conducted a 13-month investigation of how much it cost the bank to process so-called exception fees would "make a mockery of the overarching purpose" of the Federal Court,
The judge has today found that ANZ bank engaged in an "abuse of process". She said was was undergoing a "fishing expedition" in its conduct of the class action over bank exception fees.
Justice Gordon has ruled that the case should not be delayed while the ANZ conducts an accountancy exercise involving an expert from Deloitte, London.
"I do not accept that a Court should wait and conduct a trial of all issues in two or three years time. It is simply an inappropriate way in which to conduct this piece of litigation," she said.
Addressing the ANZ defence Justice Gordon said: ”It is an abuse of process because the allegations are made…without any foundation.”
''If ANZ's submissions were accepted, it would be a classic case of the tail wagging the dog. That cannot be permitted to occur.''
ANZ had obligations to the members of the class action as well as the court, she said.
''ANZ's response - it will do as much as it can as quickly as it can - does not provide an appropriate answer to those obligations.''
Law firm Maurice Blackburn principal Andrew Watson, said the historic decision was good news for the thousands of ANZ customers who have been charged penalty fees over the past six years.
“We are very pleased that the Court has rejected ANZ’s attempt to delay the case and that this class action on behalf of ANZ customers can now proceed in an efficient and cost effective manner. It’s in the interests of all concerned that we get to the heart of the case without any further delays.
“Justice Gordon has essentially dismissed the central basis of ANZ's defence, that the fees were not extravagant and unconscionable. She said the argument was 'unsubstantiated' and 'without any factual foundation'," the Maurice Blackburn principal said.
“Justice Gordon has also reminded the ANZ that it has obligations to its customers and that lawyers have an obligation to run the case without costly delays.”
“This decision provides a ‘roadmap’ for the remaining bank fees cases involving other major Australian banks,” said Watson.
A further directions hearing will be held on 5 May 2011.