Australian Competition and Consumer Commission v Telstra Corporation Limited [2018] FCA 571

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Telstra Corporation Limited [2018] FCA 571 File number: VID 317 of 2018

Judge: MOSHINSKY J

Date of judgment: 26 April 2018

Catchwords: CONSUMER LAW – financial services – false or misleading representations – where the respondent (Telstra) provided a service called the Premium Direct Billing Service (PDB service) to domestic and business customers as a default setting on Telstra mobile services (ie, customers were not required to opt-in) – where the PDB service enabled customers to purchase subscriptions to digital content supplied by third parties and have the charges billed to their Telstra account – where the operation of the PDB service led to a significant number of customers unintentionally purchasing and being billed for PDB content subscriptions without their knowledge or consent – where parties prepared an agreed statement of facts and jointly proposed declarations and orders that Telstra pay pecuniary penalties totalling $10 million – whether the PDB service was a "financial product" – whether, in providing the PDB service, Telstra was providing a "financial service" – whether proposed orders appropriate – proposed orders made

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), ss 12BAA, 12BAB, 12DB, 12GBA Competition and Consumer Act 2010 (Cth), ss 76, 87B, 131A Crimes Act 1914 (Cth), s 4AA Australian Securities and Investments Commission Regulations 2001 (Cth), reg 2B

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 271 IR 321; [2017] FCAFC 113 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 Australian Competition and Consumer Commission v Reckitt Benckiser (Aust) Pty Ltd (2016) 340 ALR 25 Australian Competition and Consumer Commission v Telstra Corporation Limited [2004] FCA 987 Australian Securities and Investments Commission v GE Capital Finance Australia, in the matter of GE Capital Finance Australia [2014] FCA 701 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80 Trade Practices Commission v Allied Mills Industries Pty Ltd (No 5) (1981) 60 FLR 38; 37 ALR 256 Trade Practices Commission v CSR Limited [1991] ATPR 41-076; [1990] FCA 762