Australian Competition and Consumer Commission v Superfone Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] FCA 278
• Date: 26 March 2021

Federal Court of Australia

Australian Competition and Consumer Commission v Superfone Pty Ltd [2021] FCA 278

File number:	VID 1337 of 2019
Judgment of:	MURPHY J
Date of judgment:	26 March 2021
Catchwords:	CONSUMER LAW – contraventions of ss 18, 29(1)(h), (g) and (m), 76, 77, 78, 79 and 86 of the Australian Consumer Law (ACL) – principles relevant to injunctive relief, imposition of a pecuniary penalty, non-party consumer redress orders and publication orders – whether appropriate to make non-party consumer redress order under s 239 of ACL – not necessary to individually identify which persons are non-party consumers or the nature of loss or damage suffered – injunctive relief, pecuniary penalty, non-party consumer redress orders and publication orders made
Legislation:	Competition and Consumer Act 2010 (Cth) Evidence Act 1995 (Cth) Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth) Penalty Interest Rates Act 1983 (Vic) ; Treasury Laws Amendment (2018 Measures No. 3) Bill 2018
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Another [2018] HCA 3; (2018) 262 CLR 157 Australian Communications Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225; (2009) 180 FCR 467 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Australian Competition and Consumer Commission v BUPA Aged Care Pty Ltd [2020] FCA 602 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247 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 Leahy (No 3) [2005] FCA 265; (2005) 215 ALR 301 Australian Competition and Consumer Commission v Leahy Petroleum (No 2) [2005] FCA 254; (2005) 215 ALR 281 Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; (2011) 282 ALR 246 Australian Competition and Consumer Commission v SMS Global Pty Ltd [2011] FCA 855 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; (2016) 337 ALR 647 Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 4) [2020] FCA 1499 Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; (2015) 324 ALR 59 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Director of Consumer Affairs Victoria v Domain Register Pty Ltd (No 2) [2018] FCA 2008 Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 384 ALR 75 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076 Trade Practices Commission v Stihl Chainsaws (Aust) Pty Ltd (1978) ATPR 40-091 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	122
Date of last submission/s:	17 February 2021
Date of hearing:	30 November 2020
Counsel for the Applicant:	Dr O Bigos QC and Ms C van Proctor
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr M Rennie
Solicitor for the Respondent:	Terceiro Legal Consulting Pty Ltd

ORDERS

		VID 1337 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	SUPERFONE PTY LTD Respondent

order made by:	MURPHY J
DATE OF ORDER:	26 MARCh 2021

THE COURT ORDERS THAT:

1. The Applicant has leave to file and serve an amended originating application in the form provided to the Court and the respondent on 25 November 2020.

Injunction

2. The Respondent, whether by itself, its servants, agents or affiliates, is restrained for a period of three years from the date of this order, from, in trade or commerce:

   1. supplying services to consumers and requiring or accepting payment for services from consumers following an unsolicited telemarketing call without waiting at least until after 10 business days have passed from when documents evidencing the agreement for the provision of the services are given to the consumer;

   2. making...