Australian Competition and Consumer Commission v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 2058

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Telstra Corporation Limited (ACN 051 775 556) [2007] FCA 2058

Trade Practices Act 1974 (Cth)ss 52, 53(aa), 53(c) and 86C ACCC v CG Berbatis Holdings Pty Ltd (2001) ATPR 41-802 ACCC v Real Estate Institute (WA) Inc (1999) 95 FCR 114 ACCC v Wizard Mortgage Corporation Ltd (2002) ATPR 41-903 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 TPC v Optus Communications Pty Ltd (1996) 64 FCR 326 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TELSTRA CORPORATION LIMITED (ACN 051 775 556) VID 855 OF 2007

GORDON J

19 DECEMBER 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 855 OF 2007

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: TELSTRA CORPORATION LIMITED (ACN 051 775 556)

Respondent

JUDGE: GORDON J DATE OF ORDER: 19 DECEMBER 2007

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT:

1 The Respondent, by making statements in the following publications: (a) the Everywhere Advertisement, which was televised in Sydney, Melbourne, Brisbane, Adelaide, Perth, Newcastle, Wollongong and in surrounding areas of those cities from 20 May 2007 to 30 June 2007 (First Event); (b) the Cramer Testimonial Advertisement, which was published in the following newspapers on the following dates: (i) Sunday Mail Brisbane on 19 August 2007; (ii) Gladstone Observer on 20 August 2007; (iii) Gold Coast Bulletin on 22 August 2007; (iv) Toowoomba Chronicle on 31 August 2007; (v) Sunday Mail Brisbane on 2 September 2007; (vi) The Age on 4 September 2007; (vii) Courier Mail on 10 September 2007; (Second Event); (c) the AFL Website Advertisement, which appeared on the Australian Football League's website http://www.afl.com.au/FunGames/tabid/77/Default.aspx from 1 March 2007 until 17 September 2007 (Third Event); (d) the Website Information which appeared on the Respondent's website http://www.telstra.com.au from 1 October 2006 until 3 October 2007 (Fourth Event); (e) a Brochure first distributed in its initial form on 10 May 2007 and then replaced by a variation from 4 June 2007 (Fifth Event); (f) a Telstra Media Release of 8 August 2007 (Sixth Event); (g) the Telstra Shop Business Centre Website page http://telstrashopbusiness.com.au (Seventh Event); (h) selected pages from the Telstra Next G website http://www.nextg.com.au available since 6 October 2006 (Eighth Event); (i) the Next G network for Business brochure available from the website http://www.commsaut.com.au/Uploads/Images/NextGBusiness.pdf since October 2006 (Ninth Event); (j) a television advertisement broadcast in the Cairns area on 8 September 2007 (Tenth Event); (k) two Brisbane radio commercials broadcast on 15 September 2007 (Eleventh Event); and (l) the Next G Family Brochure first distributed on 6 October 2006 (Twelfth Event), (together the 12 Events) thereby represented that mobile coverage on the Next G mobile telephone network is available to Next G mobile telephone customers everywhere the customer, from time to time, needs to use their mobile telephone regardless of where the person is, what handset the person is using and whether that handset has an external antenna attached (Coverage Representation), in circumstances where: (m) coverage on the Next G mobile telephone network depended in part upon where the person was, what handset the person was using and whether that handset had an external antenna attached; and (n) the matters identified in (m) were not explicitly mentioned in any of the 12 Events, and thereby has in trade and commerce: (o) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Trade Practices Act 1974 (Cth) (the Act); (p) in connection with the promotion of the supply or possible supply of goods and services or in connection with the promotion of the supply or use of goods and services: (i) falsely represented that services were of a particular standard or quality, in contravention of section 53(aa) of the Act; and (ii) represented that goods had performance characteristics, uses or benefits that they did not have, in contravention of section 53(c) of the Act. 2 The Respondent, by making statements in one or more of: (a) the Cramer Testimonial Advertisement, which was published in the following newspapers on the following dates: (i) Sunday Mail Brisbane on 19 August 2007; (ii) Gladstone Observer on 20 August 2007; (iii) Gold Coast Bulletin on 22 August 2007; (iv) Toowoomba Chronicle on 31 August 2007; (v) Sunday Mail Brisbane on 2 September 2007; (vi) The Age on 4 September 2007; (vii) Courier Mail on 10 September 2007 (Second Event); (b) the Website Information which appeared on the Respondent's website http://www.telstra.com.au from 1 October 2006 until 3 October 2007 (Fourth Event); (c) a Brochure first distributed in its initial form on 10 May 2007 and then replaced by a variation from 4 June 2007 (Fifth Event); (d) a television advertisement broadcast in the Cairns area on 8 September 2007 (Tenth Event), thereby represented that a customer subscribing to the Next G mobile telephone network would receive the same or better coverage than is available currently on the CDMA mobile telephone network (the CDMA Comparison Representation), in circumstances where: (e) coverage on the Next G mobile telephone network depended in part upon where the person was, what handset the person was using and whether that handset had an external antenna attached; and (f) the matters identified in (e) were not explicitly mentioned in any of the Events listed in (a) to (d) above, and thereby has in trade and commerce: (g) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the Act; (h) in connection with the promotion of the supply or possible supply of goods and services or in connection with the promotion of the supply or use of goods and services: (i) falsely represented that services were of a particular standard or quality in contravention of section 53(aa) of the Act; and (ii) represented that goods had performance characteristics, uses or benefits that they did not have in contravention of section 53(c) of the Act. THE COURT ORDERS THAT: 3 The Respondent, whether by itself, its respective officers, employees and / or agents or otherwise howsoever, in connection with the supply or possible supply of, or the promotion by any means of the supply of mobile telephone services on the Next G mobile telephone network be permanently restrained from making any representation to the effect that mobile coverage on the Next G mobile telephone network is always available to Next G mobile telephone customers everywhere the customer, from time to time, needs to use their mobile telephone without adequately disclosing that coverage on the Next G mobile telephone network depends in part on where the person is, what particular handset the person is using or whether that handset has an external antenna attached. 4 The Respondent, whether by itself, its respective officers, employees and / or agents or otherwise howsoever, in connection with the supply or possible supply of, or the promotion by any means of the supply of mobile telephone services on the Next G mobile telephone network be permanently restrained from making any representation to the effect that a customer subscribing to the Next G mobile telephone network will receive the same or better coverage than is available currently on the CDMA network without disclosing that coverage on the Next G network depends in part on where the person is, what particular handset the person is using and whether that handset has an external antenna attached. 5 The Respondent pay the Applicant's costs of and incidental to the proceeding, including reserved costs, on a party and party basis to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA