Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54

HIGH COURT OF AUSTRALIA

FRENCH CJ, CRENNAN, BELL, GAGELER AND KEANE JJ

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPELLANT

AND

TPG INTERNET PTY LTD RESPONDENT

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 12 December 2013 M98/2013

ORDER

1. Appeal allowed with costs.

2. Set aside order 1 of the Full Court of the Federal Court of Australia made on 20 December 2012 and the orders of the Full Court made on 4 April 2013 and, in their place, order that:

(a) orders 4, 9 and 10 of the Federal Court made on 15 June 2012 be set aside;

(b) the appeal to the Full Court be otherwise dismissed; and

(c) the respondent pay the appellant's costs of the appeal to the Full Court.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC, Solicitor-General of the Commonwealth and C D Golvan SC with E J C Heerey for the appellant (instructed by Australian Government Solicitor)

N J O'Bryan SC with M J Hoyne for the respondent (instructed by Truman Hoyle Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Competition and Consumer Commission v TPG Internet Pty Ltd

Consumer law – Misleading or deceptive conduct – Whether respondent's advertisements breached Trade Practices Act 1974 (Cth) ("TPA") and Australian Consumer Law – Whether "dominant message" approach correct – Whether ordinary and reasonable consumer would have starting assumption that advertised internet service was bundled with telephony service – Whether consumers must consider whole of advertisement (including small print or quickly spoken detail) to correct otherwise misleading headline representations.

Consumer law – Pecuniary penalties – Whether Full Court of Federal Court failed to adequately consider specific and general deterrence in reducing pecuniary penalty – Whether reduced pecuniary penalty manifestly inadequate – Whether primary judge correctly assessed number and classes of contraventions.