Vilain v Vodafone NZ Ltd : preliminary ruling

Short summary: I tried to use a "bad" section of the Fair Trading Act, the judge just didn't buy my argument ($1300 now owing I guess), and adjourned on one point (worth $850) pending explanation from Vodafone.

Though, it wasn't entirely bad; the message telling me that I was using my data bundle is a bit hard to argue against. Irritating thought is that despite Vodafone having had much time to note and prepare a response to that part, the judge allowed that the case be adjourned, perhaps to February, when the Vodafone representative claimed that he hadn't seen that bit before and needed to check up on it. So this is going to drag on a bit.

I had a friendly Radio NZ reporter meet me in the waiting room, and talked with them about the case before I went in, but unfortunately given the ruling it's now not newsworthy.

Court Limitations

Upon the court hearing starting, I was informed that the section of the Fair Trading Act I was attempting to use - Section 9 - could not be ruled on in the disputes tribunal. If I'd have known that, I could possibly have structured my arguments differently. He did say that I could later take the case up with the district court if I so chose, as he would not be ruling either way on it. However, he heard the substance of the claims anyway without reference to the potential statute, which was good. He also did fairly well to try to understand and follow up on points that I made.

But anyway without the ability to claim "generally misleading and deceptive conduct", my case was quite limited. Had I known at the time, I could perhaps have tried under Section 11,

No person shall, in trade, engage in conduct that is liable to mislead the public as to the nature, characteristics, suitability for a purpose, or quantity of services.

I also mentioned that it was a matter of fact that the prices were extortion, referring to the EU and OECD rulings; he said that I couldn't bring charges against the Consumer Guarantees Act on that count because there was a fee schedule.

Lesson learned: always find as many applicable sections of a piece of law when laying charges so you have fall-back options

The information was available to me

The judge ruled that I did have the information available to me; in the form of Vodafone's web site, and that I was "blazé" and "light on checking on information" before I left.

He said that delayed charges were natural to expect, like with a Visa bill. I did tell him, sure but with Visa the balance updates immediately so you can always check it in real time, but that point seemed to have been lost on the judge.

He said from his readings of the text messages that "no large jumps of logic" were required to infer that I was on a $10/MB rate or zone.

Lesson learned: when dealing with companies that have long terms and conditions, assume the worst and hammer their call centres with requests for information.

Deceptive Invoicing

The judge did not accept that the level of information shown on the bill was not sufficient for reconciliation. He seemed to always go back to the fact that the invoice did have a $10/MB bit on it. Also, there was some small print I missed, in fact here is the relevant section of the invoice:

an excerpt from a Vodafone Invoice

Note also the little disclaimer at the bottom of that summary; I had missed that, and it does bear relevance to my claims. Silly me, not checking every single line of every single piece of correspondance sent to me.

It's a little strange that the "Summary" section in fact contains more information than the "Details" section. So, my initial claim that the amount was not broken down, Vodafone were able to counter by saying, sure it was, look. But it rather missed the point I was trying to make: that there was no information about the date on which the usage was related to. As you would expect on your Visa bill, or in the rest of the invoice for instance.

The Vodafone representative successfully misdirected the judge on this point in fact, making the straw-man argument that they don't list every single data session, it would be information overload and "most people don't want that". I tried to make the point to the judge that there is actually an obvious middle ground, which is aggregation (no, I didn't use that term), but the point seemed to be lost on him completely.

I'm not sure how I could have avoided that misdirection, or actually gotten the crux of what I was saying across to the judge. But then again, he didn't have to care, because the only fault with this information is that it is deceptively communicated, and he had already said he wasn't going to rule on that.

Deceptive Communications

The judge ruled that "no large jumps of logic" were required to infer that these messages:

  • 26th July, 2:26AM : You've arrived in Zone 3! To pay your std NZ home rate + $3 per min for calls from zone3, get 'Traveller' our zone pricing. For info go to vodafone.co.nz/travel
  • 26th July, 2:26AM : 3G,V Live! & mobile data is available on SmarTone.2 enjoy these services remain on this network. Charges of NZ$10/MB apply & will b billed 2 yr NZ account
  • 27th July, 7:40AM: You've arrived in Zone 2! To pay your std NZ home rate + $2 per min for calls from zone2, get 'Traveller' our zone pricing. For info go to vodafone.co.nz/travel
  • 27th July, 7:40AM: 3G,V Live! & mobile data is available on SFR.2 enjoy these services remain on this network.Charges of NZ$10/MB apply & will b billed 2 yr NZ account
  • 30th July, 4:05AM: 3G,V Live! & mobile data is available on Swisscom. To enjoy these services remain on this network. Charges of NZ$10/MB apply & will b billed 2 yr NZ account

implied that I'd pay $10/MB on every network in these Zones. That I hadn't received messages upon registering on new networks? Apparently, Vodafone have cut down on these messages, due to complains by customers, about them being "spam". So I was just unlucky that a Vodafone network was number 8 or whatever the cut-off is where they decide that you've got the message and that you know what the price is, despite every message communicating the mobile data rate including the term "on this network"

Vodafone NZ customers want to be able to rack up $6,000 roaming bills, not pesky warning texts at €40 and a €50 default cap like in Europre.   Yeah right.®  Tui.

It seems that Vodafone can just claim for any withheld information, that some customers requested that. On the "bill shock" policy to limit the amount of spend? No, customers don't want that.

Well, what can you do. I was genuinely misled by the information at hand to me, but apparently, sorry that's my own fault. "What did I expect?" asked the Judge, leaving it wide open for very cynical comment that of course was irrelevant to the court. I guess I certainly couldn't expect sensible anti-bill shock legislation from our inept government. So I guess I have to take this part on the chin.

The semi-successful claim

These two messages, however, the judge did rule were highly suspicious;

  • August 6th, 7:59AM: You've used 50% of your 100MB data bundle. When you exceed your data bundle out of bundle rates will apply. More details at vodafone.co.nz
  • August 10th, 8:00AM: You've used 100% of your 100MB data bundle. Out of bundle rates now apply. More details at vodafone.co.nz

So there still is some hope. The above messages, along with the inadequacy of their billing system to deliver data on time (apparently, a "new billing system" has been implemented in some countries which is "not as real time" as the older one), are what left me thinking that the Vodafone IT network was not "another network" in terms of my billing.

The usage on Vodafone networks I incurred after that first message is still about $850. That's about half of what I was claiming.

However the Vodafone representative claimed to be missing pages from his print-out and missed those messages. This, despite having been served with the claims in question. And the judge allowed them time to go away and try to come up with an excuse.

Summary

I find it disappointing that the disputes tribunal is limited in what it can enforce in Acts on a section-by-section basis. I also find it annoying that they left it until the actual hearing to tell me that. That rather undermined my case, and if I had time to prepare for that I could have perhaps found out what sections I could have used.

Vodafone have now got the opportunity to come up with whatever excuse they can figure out until February as to why those erroneous messages from their system make sense.

I guess they won this battle, but the war isn't over yet...

Still, based on this experience I think I prefer the court of public opinion; it can inflict greater damages.