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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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Hi there, I have a general enquiry regarding a phone bill

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Hi there,

I have a general enquiry regarding a phone bill which I believe to be over charged for. I am currently on two phone contracts with Vodafone, one for $50 a month and the other 29$ cap plan which is used by my sister. My sister has never gone over her cap plan except once within the first month of her getting her phone which was over by about $270. The highest that the accounts have gone over is probably about 400-500$ which have all been from the 50$ cap plan which I am using personally. Last month I receieved a bill for $2,000 apparently from my sister's handset claiming that she had gone over her 29$ cap plan with data usage. I am finding this hard to believe as we have the internet at home, which she connects both her phone and laptop too and has only ever gone over her cap plan once no more than $300! The first time I called up Vodafone to address this matter the consultant I was talking too said that my bill was only $1,000 over. I asked to see proof of the matter and he said that he would get his supervisor to call me within the half hour. After an hour and no return call I called Vodafone back to be answered to by another consultant and she claimed that my bill had now jumped to $2,000. Again I asked for proof of this as I was first told that my bill was only $1,000 over. It had jumped a grand within and hour and she said that she would get her supervisor to call me back. Two hours after, no phone call so again I called back to be put in the waiting line and when I finally got through to the supervisor the line cut. When I finally got to talk to a supervisor they said that messasges had been sent to that handset regarding high data usage, one for when the phone was $400 over, another when it was $600 another when it was around $800, however there is no proof of this on the handset and if my sister was to recieve a message like that she would immediately forward it to me like she did when she went over her cap plan the first time. It also confuses me as to why during this time my handset ($50 cap) was barred due to high data usage (extra of about $150) and yet this second handset (29$) was not?

They have emailed me all the sites, downloads and uploads which were 'supposedly' used from my sister's phone - I would like some advice as to how to carry on from here? I still strongly believe that I am being taken on for a ride as I don't believe that her account could go over by so much, especially when we have the internet at home. In addition to this why was this account not barred like mine the moment their systems deteted a "high data" usage from the account. Would I be able to get any prrof from them that warning messages were sent as I have no proof of them on my end?

Thanks, XXXXX XXXXX hear soon
Hello and thank you for your question.

Quite aside from whether your sister actually exceeded her limits, the data charges on excess usage by companies such as Vodaphone appear to be penalty clauses. The law on penalty clauses is somewhat complicated, but essentially if a clause imposes a charge for a breach of the contract's ordinary operation that is excessive and arbitrary and does not relate to the actual cost to the other party, then it may be deemed a penalty clause and legally such clauses are unenforceable.

I would therefore suggest that if you cannot convince Vodafone to drop the charge or make a satisfactory compromise out of Vodafone that you refer the matter to the Telecommunications Industry Ombudsman:

They can assess your situation, and if they determine the charge is unwarranted, can direct Vodaphone to drop it.

Based on the experiences of other users reported online, telecommunication companies often drop such charges when faced with the ombudsman's scrutiny, but of course there are no guarantees.

I trust the above assists.

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Thank you and good luck.


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