Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 File number: VID 1346 of 2018

Judge: MURPHY J

Date of judgment: 12 February 2019

Catchwords: CONSUMER LAW – false and misleading representation in contravention of s 12DB(1)(b) of the Australian Securities and Investment Commission Act 2001 (Cth) – where respondent did not adequately inform customers that they were automatically opted in to direct billing for third party content – where some customers unintentionally purchased third party content without knowledge or consent – where Optus applied charges to customer accounts despite awareness of this issue – principles relevant to appropriate penalty – appropriateness of agreed declaration and order for $10 million pecuniary penalty Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Crimes Act 1914 (Cth) Fair Work Act 2009 (Cth) Trade Practices Act 1974 (Cth) Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68; [2017] FCAFC 113 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540; [2015] FCA 330 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Leahy Petroleum (No 2) (2005) 215 ALR 281; [2005] FCA 254 Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd (2005) ATPR 42-070; [2005] FCA 683 Australian Competition and Consumer Commission v Optus Internet Pty Limited [2018] FCA 777 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Australian Competition and Consumer Commission v Singtel Optus Pty Ltd [2010] FCA 1177 Australian Competition and Consumer Commission v SMS Global Pty Ltd [2011] FCA 855 Australian Competition and Consumer Commission v Telstra Corp Ltd (2018) ATPR 42-593; [2018] FCA 571 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482; [2015] HCA 46 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1; [2010] FCAFC 39 J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 R v Kilic (2016) 259 CLR 256; [2016] HCA 48 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249; [2012] FCAFC 20 Telstra Corporation Limited v Singtel Optus Pty Ltd [2014] VSC 35 Trade Practices Commission v CSR Ltd (1991) ATPR 41-076