The Full Federal Court today made penalty and other relief orders in relation to an appeal by TPG Internet Pty Ltd (TPG) against a judgment of Justice Murphy in favour of the Australian Competition and Consumer Commission.
Having previously allowed the appeal in part, the Full Court ordered that TPG pay a penalty of $50,000 in respect of TPG’s initial misleading television advertisements and its failure to prominently display in its initial advertisements the single price for the advertised service.
The Full Court also set aside the injunctions imposed by the trial judge as well as his order that TPG implement a compliance program. The Full Court ordered that the ACCC pay 75 per cent of TPG’s costs of the trial and appeal.
TPG had appealed to the Full Court from Justice Murphy’s decision on liability and relief in relation to TPG’s $29.99 ADSL 2 + Advertising Campaign which ran between September 2010 and November 2011. Justice Murphy’s orders included a pecuniary penalty of $2 million.
Justice Murphy had found that TPG’s television, radio, newspaper and internet advertisements 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. It was also found that the initial advertisements, which ran from 25 September 2010 to 7 October 2010, did not prominently specify the minimum charge for the advertised service and were misleading for not disclosing additional up front charges.
On 20 December 2012 the Full Court allowed the appeal in part. The Full Court upheld Justice Murphy’s finding that the initial television advertisements for TPG’s Unlimited ADSL2+ offer were misleading. Further, the Full Court did not overturn Justice Murphy’s finding that the initial advertisements did not prominently specify the single price for the advertised service. However, the Full Court held that the other TPG advertisements were not misleading because the bundling requirement and set up charges were adequately disclosed, and that an ordinary or reasonable consumer would have known that these services are commonly bundled and that set-up charges are often applied.
In January, the ACCC filed an application for special leave of the High Court to appeal part of the Full Court’s earlier judgment.
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