Why today is a sad day for fairness

TODAY is a sad day for fairness.

Today the High Court of Australia missed a monumental opportunity to ensure big business deals with the average person in a way that is honest, upfront and fair.

Today the High Court dismissed a class action which essentially boiled down to one very simple question: Do we think it is okay for big business to better its bottom line by profiteering off people's misfortune or oversight?

Today five High Court Justices: Robert French, Susan Kiefel, Stephen Gageler, Patrick Keane and Geoffrey Nettle missed a monumental opportunity.

There can be little doubt the legal reasoning these people have employed is well informed - that their understanding of the relevant authorities is near perfect.

There is also no doubt they are decent people. 

However the question they have sought to address - whether charging people the sum of $35 for a transaction which cost ANZ between $5.50 and 50c to complete was disproportionate to the actual loss suffered by the bank - was the wrong one.

>>Customers lose late fee class action

The real question is whether the law can condone behaviour that obviously amounts to profiteering off an honest and reasonable mistake.

The simple fact which seems to be lost on the High Court is most people lead their day to day lives without ever undertaking a close read of a contract.

The agreements which are formed are ones where the customers have no idea about late payment fees as these conditions are buried deep in large wads of paper and when the customers do become aware of these fees they've already signed off on them.

I'm reminded today of one of the most oft quoted passages from the common law.

It's from the great rogue judge Lord Alfred Denning - a man who was decades ahead of his time.

"The more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient."

The law should be there to protect the public from the type of cynical indecency employed by the banks and judges whether they like bit or not are responsible for what our law becomes.

Lord Denning was a great judge, he will be remembered for as long as we have laws.

All of our High Court Justices are no doubt very bright but perhaps they should ask how well today's decision will be remembered. 

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