Australian Competition and Consumer Commission v Dodo Services Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 01 June 2021
• Neutral Citation: [2021] FCA 589
• Date: 01 June 2021

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dodo Services Pty Ltd [2021] FCA 589

File number:	VID 416 of 2020
Judgment of:	MURPHY J
Date of judgment:	1 June 2021
Catchwords:	CONSUMER LAW – contraventions of ss 18(1) 29(1)(b) and (g) and 34 of the Australian Consumer Law (ACL) – declarations of contravention – imposition of pecuniary penalties under s 224 of the ACL
Legislation:	Competition and Consumer Act 2010 (Cth) Evidence Act 1995 (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 & Anor [2018] HCA 3; (2018) 262 CLR 157 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 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 Jetstar Airways Pty Limited (No 2) [2017] FCA 205 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 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 Woolworths Ltd [2016] FCA 44 Australian Securities and Investments Commission v Commonwealth Bank [2020] FCA 1543 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 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 2020 IR 467 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 Royer v Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 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
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	103
Date of last submissions:	14 December 2020
Date of hearing:	Heard on the papers
Counsel for the Applicant:	Mr J Slattery QC and Ms C Dermody
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents:	Mr M I Borsky QC and Ms C van Proctor
Solicitor for the Respondents:	Allens

ORDERS

		VID 416 of 2020
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	DODO SERVICES PTY LTD (ACN 158 289 331) First Respondent ; PRIMUS TELECOMMUNICATIONS PTY LTD (ACN 071 191 396) Second Respondent

order made by:	MURPHY J
DATE OF ORDER:	1 June 2021

THE COURT DECLARES THAT:

1. The First Respondent (Dodo) between 26 March 2018 and 2 April 2019, in trade or commerce, in connection with the supply or possible supply or the promotion by any means of the supply of its residential NBN broadband services:

(a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA);

(b) made misleading representations with respect to the performance characteristics and benefits associated with those services in contravention of ss 29(1)(b) and (g) of the ACL; and

(c) engaged in conduct that was liable to mislead the public as to the characteristics of those services in contravention of s 34 of the ACL,

by publishing statements on specific pages of its website (www.dodo.com.au) relating to its residential NBN broadband services, which referred to a ‘typical evening speed’ of:

(d) 11 Mbps for its services based on the NBN Co 12/1Mbps speed tier from 26 March 2018 to 2 April 2019;

(e) 24 Mbps for its services based on the NBN Co 25/5Mbps speed tier from 26 March 2018 to 2 April 2019;

(f) 43 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 26 March 2018 to 26 June 2018;

(g) 46 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 26 June 2018 to 4 September 2018;

(h) 47 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 4 September 2018 to 2 April 2019,

and thereby representing that consumers who acquired one of its NBN plans would, or could expect to, typically or usually receive internet download speeds as published (and set out in sub-paragraphs 1(d) to (h) above) during the period 7pm to 11pm (Busy Evening Period) when it did not have reasonable grounds to make those representations because it did not have a testing methodology in place which was an appropriate measure of the speeds typically or usually received by customers during the Busy Evening Period.

2. The Second Respondent (iPrimus), between 26 March 2018 to 2 April 2019, in trade or commerce, in connection with the supply or possible supply or the promotion by any means of the supply of its residential NBN broadband services:

(a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the ACL;

(b) made misleading representations with respect to the...