The telecommunications industry ombudsman (TIO) could soon contest a legal action initiated by telco Exetel, which has alleged fines were wrongly issued in response to customer complaints.
Lawyers representing the TIO were last week sent a letter by Exetel's legal counsel, who said there are grounds for the telco to bring an action against the TIO in response to a number of concerns over the alleged over charges.
Exetel's legal counsel believes any possible action would have a reasonable chance of success.
The TIO deals with complaints that consumers have not been able to resolve with their telephone or internet company.
A TIO spokesman declined to respond to number of specific questions about the letter and a possible action by Exetel over the way customer complaints are resolved. They said all dealings with members are confidential.
The letter, seen by Computerworld Australia, said Exetel has claimed loss and damage due to a number of concerns about the TIO's conduct.
The letter outlined the concerns over the TIO accepting and investigating complaints against the telco. These include alleged instances where:
- No previous complaint was made to Exetel
- Exetel was in the process of resolving a complaint made in the last 21-28 days
- Exetel had first been informed of the complaint within the previous 48 hours
- The TIO not declining complaints which are vexatious, including complaints which have been resolved by Exetel prior to the complaints being lodged with TIO
- The TIO accepting complaints that are actually enquiries
The letter said the alleged concerns could support four possible causes of action including breach of contract, negligence, and that the TIO acted outside the scope of section 128 of the Telecommunications Act.
The legal counsel made an additional comment that Exetel could consider approaching other TIO members (telcos and ISPs) to share costs in any possible action.
According to the TIO website it is “an office of last resort” and before it intervenes “the service provider must be given a reasonable opportunity to settle a complaint with a customer”.
It also said complaints are investigated “by considering the facts provided by both parties in a dispute”.
The TIO can enforce undertakings and issue fines against a telco if a complaint is upheld.
Exetel is seeking a refund on all amounts that have allegedly been wrongly charged by the TIO, according to chief executive officer, John Linton.
In an email interview, Linton said the alleged wrong charges were first raised eight months ago but since then discussions with the TIO's senior legal representatives have “got nowhere”.
Tthe TIO's response to the latest discussions will determine whether Exetel will serves a letter of demand to initiate legal action, which will hopefully occur before the end of September, Linton said.
“Apart from getting grudging admission that some individual cases of wrongful charging have taken place we have got nowhere,” Linton wrote. “It will be up to the TIO, now being fully aware of all of the alleged over charges to decide what course of action they prefer to pursue.”
“Our preference is that they simply rebate the amounts we allege they have over charged and cease the practices that result in such over charging in the future.
“We are quite prepared to follow Senior Counsel’s advice if that proves not to be the case and take the specified actions.”
The legal counsel also made a comment that the views are preliminary and the possible causes of action could be revised.