The Australian Competition and Consumer Commission has filed an application for special leave of the High Court to appeal the Full Court of the Federal Court of Australia’s decision handed down on 20 December 2012 in relation to TPG’s advertisements for its Unlimited ADSL2+ broadband internet service.
The Full Court allowed TPG’s appeal in part, finding that most of the advertisements were not misleading, and also disagreed with the trial judge’s penalty orders.
The trial judge, Justice Murphy, had found that TPG’s initial and amended Unlimited ADSL2+ advertisements, used between September 2010 and November 2011, were misleading because they conveyed the impression that TPG’s Unlimited ADSL2+ broadband internet service could be acquired at a cost of $29.99 per month, when in fact this service could only be acquired with a “bundled” home telephone line for an additional $30 per month.
Justice Murphy also found that the initial advertisements, used for 12 days in September and October 2010, were misleading because they represented that TPG’s Unlimited ADSL2+ broadband internet service could be acquired without any obligation to pay a set-up charge, when in fact consumers were required to pay a set up fee of $79.95 or $129.95.
In allowing TPG’s appeal in part, the Full Court held that the only misleading advertisements for TPG’s Unlimited ADSL2+ offer were the initial television advertisements. The Full Court held that other TPG advertisements were not misleading because the bundling requirement and set up charges were adequately disclosed, and in any case the ordinary or reasonable consumer would have known that these services are commonly bundled and that set-up charges are often applied.
The Full Court also disagreed with the $2 million in penalties ordered by Justice Murphy, and noted that in its view a total penalty of $500,000 would have been appropriate. The Full Court has directed the parties to seek to agree, or make submissions, on the question of penalty and other relief in relation to the more limited conduct found by the Full Court to be misleading.
The ACCC is seeking special leave to appeal to the High Court in relation to the Full Court’s findings on both liability and penalty.
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