Category Archives: Law

The SMH currently has a top of front page story with a very unfortunate heading. What is not clear until you click the link is that the title has been truncated so that the last word is missing; in full, the title is: “Hey Dad! star Robert Hughes abused daughter’s friend, court told”.

Worse, as shown on the front page, the comma has been replaced with a colon.

So the statement on the front page is “X is Y: court”, while in the full story it is “X is Y, court told”.

The way it is expressed on the front page inaccurately converts it to a statement that originated with the Court (which carries the implication of a finding by the Court) rather than one that (as is the case) originated with a witness. Not good at all. 

The use of “allegedly” in the first paragraph is also poor. If that over-used term is to be used at all, it should be: “It has been alleged in Court that X …”. Far better: “A witness today in the trial of X told the Court that Y”.

It looks like Justice Gordon has found ANZ’s late payment fees to be penalties. However, this does not make them “illegal” or “against the law”. Penalties are void or unenforceable (see Andrew v ANZ), but this is as a matter of contract (including, and often in particular, principles of equity).

The word illegality has a chameleonic quality, but it is better used to describe conduct involving a breach of the criminal law (or breach of statute) — in other words, conduct contrary to law — rather than conduct that is simply ineffective at general law. (The former question can sometimes itself be difficult to determine, as recognised in Miller v Miller).

Hence the SMH is wrong to say that the Federal Court “ruled [the ANZ’s] late payment fees charged on credit cards were illegal”. The AFR is likewise technically wrong to describe them as an “illegal penalty”, although the word is there used in its more lay sense. The real description is that the relevant fees were invalid because they were penalties.

More facepalm-inducing is this howler:

It also throws out ANZ’s six-year statute of limitations, meaning anyone who has ever been charged a late fee by ANZ can potentially now claim those fees back.

How anyone could think that a “statute of limitations” could be “ANZ’s”, rather than, say, a statute enacted by a Parliament, is just … I don’t know