In ALDI Stores (A Limited Partnership) v EFTPOS Payments Australia Ltd [2011] FCA 1114 the Federal Court found the respondent ePAL engaged in misleading and deceptive conduct in contravention of the Australian Consumer Law and ordered that it publish corrective advertising.
The claim related to statements made in a media release dated 12 August 2011, a column in the Herald Sun on 12 August 2011, and a media release dated 8 September 2011 regarding changes to the EFTPOS payment system used by Aldi and other retailers for the receipt of payment for goods purchased. The statements were to the effect that the changes would have no effect on consumers even though ePal knew at the relevant time that Westpac and St George had a policy of partial pass through of costs to a substantial number of customers.
Under the new regime, which was to take effect on 1 October 2011 (subject to the entitlement of the banks or other members of ePAL to opt into the scheme, or to continue to operate under existing bilateral arrangements) the flow of funds payable by way of interchange fees will be (subject to certain exceptions) reversed.
Instead of the issuing bank paying the interchange fee to the acquiring bank, the acquiring bank will pay the interchange fee to the issuing bank. The regime applying between banks involved in the EFTPOS direct debit payment system will therefore resemble the regime applicable to the processing of payments made to merchants under credit cards.
The exceptions to the new regime for EFTPOS interchange fees are concerned with purchases of less than $15 and purchases which involve the withdrawal of cash by a customer.
For purchases under $15 there will be no fee. For cash withdrawals, the issuing bank will continue to pay an interchange fee to the acquiring bank, although the amount of the fees will be greater than those that are presently in force.
The corrective advertising will state:
ePAL is aware that some acquirers are intending to pass part or all of these fee changes on to some retailers. It remains to be seen what such retailers may do in relation to their consumers as a result of these changes. ePAL is also aware that other acquirers do not intend to pass on any of these fee changes to retailers.
It is therefore premature to state with certainty what impact the planned changes will have at a retail level.
