Australian Competition and Consumer Commission v TPG Internet Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 30 July 2020
• Neutral Citation: [2020] FCAFC 130
• Date: 30 July 2020
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v TPG Internet Pty Ltd

[2020] FCAFC 130

Appeal from:	Australian Competition and Consumer Commission v TPG Internet Pty Ltd[2019] FCA 1677
File number:	VID 1212 of 2019
Judges:	WIGNEY, O'BRYAN AND JACKSON JJ
Date of judgment:	30 July 2020
Catchwords:	CONSUMER LAW – prohibitions against misleading or deceptive conduct and false or misleading representations – prepaid telecommunications services – whether statements made on website and brochure conveyed misleading representation concerning refund of prepayment – applicable legal principles – whether it is necessary to show that a “not insignificant number” of persons must be misled or deceived – appeal dismissed
Legislation:	Competition and Consumer Act 2010 (Cth)Schedule 2 (Australian Consumer Law) ss 18, 29(1)(b), 29(1)(g), 29(1)(i)
Cases cited:	.au Domain Administration v Domain Names Australia Pty Ltd[2004] FCA 424; 207 ALR 521 10th Cantanae Pty Ltd v Shoshana Pty Ltd(1987) 79 ALR 299 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd[2014] FCA 634; 317 ALR 73 Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liquidation) (No 2) [2017] FCA 709 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 Australian Competition and Consumer Commission v Valve Corp (No 3) [2016] FCA 196; 337 ALR 647 Australian Securities and Investments Commission v National Exchange Pty Ltd[2003] FCA 955; 202 ALR 24 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2)(2018) 266 FCR 147 Bodum v DKSH Australia Pty Ltd[2011] FCAFC 98; 280 ALR 639 Butcher v Lachlan Elder Realty Pty Ltd(2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 Comite Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110; 330 ALR 67 Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd [2016] FCA 235; 118 IPR 239 Global One Mobile Entertainment Pty Ltd v ACCC[2012] FCAFC 134 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd(1984) 2 FCR 82 Google Inc v ACCC (2013) 249 CLR 435 Hansen Beverage Company v Bickfords (Australia) Pty Ltd(2008) 171 FCR 579 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd(1978) 140 CLR 216 National Exchange Pty Ltd v Australian Securities and Investment Commission[2004] FCAFC 90; 49 ACSR 369 Noone (Director of Consumer Affairs Victoria) v Operation Smile (Australia) Inc (2012) 38 VR 569 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd(1982) 149 CLR 191 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Valve Corp v Australian Competition and Consumer Commission (2017) 258 FCR 190 Weitmann v Katies Ltd (1977) 29 FLR 336 World Series Cricket v Parish(1977) 16 ALR 181
Date of hearing:	28 May 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	43
Counsel for the Appellant:	Mr J Kirk SC with Ms E Bennett
Solicitor for the Appellant:	Corrs Chambers Westgarth
Counsel for the Respondent	Mr B Walker SC with Ms V Brigden
Solicitor for the Respondent	Mid-West Law Practice

ORDERS

		VID 1212 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Appellant
AND:	TPG INTERNET PTY LTD Respondent

JUDGES:	WIGNEY, O'BRYAN AND JACKSON JJ
DATE OF ORDER:	30 July 2020

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant (ACCC) appeals from orders of the Federal Court made on 11 October 2019, dismissing a proceeding that had been brought by the ACCC against the respondent (TPG).

2. TPG is a retailer of mobile, internet and home telephone services. It supplies services to consumers on a prepaid basis, meaning that customers are required to pay TPG in advance for the TPG services selected by them. Since 14 March 2013, TPG has marketed on its website and in brochures a variety of personal mobile, internet and home telephone plans. Each such plan required a fixed monthly amount to be paid by the customer in advance for the particular service (mobile, internet and home telephone) that was included in the plan acquired by the customer.

3. The proceeding brought by the ACCC concerned the terms of TPG’s mobile, internet and home telephone plans that related to a “prepayment” of $20. In order to enter into a plan, customers were required to make a “prepayment” of $20 (or more if nominated by the customer) for service usage that was not within the included value of the plan acquired. The prepayment was debited from the customer’s nominated bank account or credit card. Usage charges incurred by the customer for services not within the included value of the plan were deducted by TPG from the prepayment amount or balance. The terms of TPG’s plans stipulated that:

1. when the balance of the prepayment fell to below $10, TPG will debit a sufficient amount from the customer’s bank account or credit card (if available) to restore the prepayment amount (Automatic Top-Up Term); and

2. when the customer cancelled their plan, the unused balance of the prepayment was forfeited to TPG (Forfeiture Term).

4. It was common ground at trial that the combined effect of those terms was that, in the ordinary case, when the customer cancelled their plan there would be a minimum prepayment balance of $10 that would be forfeited to TPG. The minimum prepayment balance would exist because, if the customer used services before the plan cancellation took effect that caused the balance of the prepayment to fall below $10, TPG would automatically “top-up” the prepayment in accordance with the Automatic Top-Up Term. Thus, when the plan cancellation took effect, the amount of the prepayment balance would ordinarily lie between the minimum balance of $10 and the default amount of $20 (or a higher amount if nominated by the customer). The precise balance at cancellation would depend on the customer’s service usage that was not within the included value of the plan in the lead up to the date of cancellation.

5. The evidence showed that in certain limited circumstances (which accounted for a very small percentage of cases) a TPG customer was able to use all of the prepayment for the service while their plan remained on foot, including where the automatic top-up payment was not received by TPG...