TPG Internet Pty Ltd v Australian Competition & Consumer Commission (No 2)  FCAFC 37.
Jacobson, Bennett and Gilmour JJ of the Federal Court handed down their judgment on relief in relation to TPG Internet Pty Ltd’s (TPG) appeal against Murphy J’s trial decision. This decision follows last year’s Full Court decision on liability, which allowed TPG’s appeal in part, but upheld Murphy J’s finding that TPG’s initial television advertisements for its unlimited ADSL 2+ offer were misleading and did not prominently specify the single price for the service.
In contrast to the trial judge’s imposition of a $2 million dollar penalty, the Full Court ordered TPG to pay a penalty of $50,000. The Full Court also ordered that the ACCC pay 75% of TPG’s costs and set aside injunctions and orders for a compliance program imposed by the trial judge.
The trial judge found that TPG had engaged in nine separate contraventions of the Trade Practices Act (TPA) (for conduct TPG engaged in prior to 1 January 2011) and the Australian Consumer Law (ACL) (for conduct TPG engaged from 1 January 2011) by publishing two sets of advertisements on a number of media platforms offering to provide customers with “unlimited” ADSL 2+ for $29.99 a month.
Specifically, Murphy J found that:
As a result, Murphy J made orders for declarations, injunctions, corrective advertising and pecuniary penalties totalling $2 million.
TPG appealed the orders made by Murphy J, with the exception of the order relating to TPG’s breach of the single price provision under s 53C of the TPA in relation to its initial television advertisements.
Being of significance to a finding of liability, the Full Court last December held that Murphy J had erred by:
However, the Full Court held that Murphy J had appropriately construed the phrase “in a prominent way”, in the context of displaying a single price, to mean the price is conspicuous.
The Full Court, therefore, accepted TPG’s submissions that TPG had engaged in only three contraventions, being breaches of sections 52, 53(e) and 53(g) of the TPA in relation to its initial television advertisements and s 53C of the TPA in relation to its initial television, print and online advertisements.
Of significance in terms of considering the appropriate penalty and other relief, the Full Court also found that Murphy J had erred in:
Following the receipt of submissions on relief from the parties, the Full Court:
The decision indicates how divergent the views of the different Federal Court Judges can be. The implication of this is that, depending on the Federal Court Judge, the same given set of circumstances may, or may not, be found to be misleading, and findings on the extent to which circumstances may be misleading may differ markedly.
In the mean time, the ACCC has reiterated that, as a matter of priority, it will continue (notwithstanding the decision of the Full Court) to pursue advertisers who are in contravention of the law and will prioritise ensuring compliance with the ACL in the telecommunications industry. Business need to be very aware of the proactive stance taken by the ACCC in prosecuting misleading representations, which, in its view, affect a large proportion of consumers.
The ACCC is, no doubt, awaiting the High Court’s decision as to whether it will grant special leave to appeal the Full Court’s decision.
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