Australian Competition and Consumer Commission v Dell Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 05 June 2023
• Neutral Citation: [2023] FCA 588
• Date: 05 June 2023

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dell Australia Pty Ltd [2023] FCA 588

File number(s):	NSD 942 of 2022
Judgment of:	JACKMAN J
Date of judgment:	5 June 2023
Catchwords:	CONSUMER LAW – admitted contraventions of ss 18 and 29(1)(i) of the Australian Consumer Law – declaratory relief and consumer redress, compliance and corrective notice orders sought – strikethrough pricing – misleading or deceptive representations made to the effect that monitors bundled with computer purchases were equal in price or cheaper than monitors purchased on a standalone basis – orders sought are appropriate
Legislation:	Competition and Consumer Act 2010 (Cth) s 131, Sch 2 (Australian Consumer Law), ss 2, 18, 29(1)(i), 239, 240, 241, 243, 246 Corporations Act 2001 (Cth) s 9 Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1974 (Cth) s 21 Trade Practices Act 1974 (Cth) s 75AZC(1)(g)
Cases cited:	Ascot Four Pty Ltd v Australian Competition and Consumer Commission [2009] FCAFC 61; (2009) 176 FCR 106 Australian Competition and Consumer Commission v ABG Pages Pty Ltd [2018] FCA 764 Australian Competition and Consumer Commission v Ascot Four Pty Ltd [2008] FCA 1295; (2008) 250 ALR 467 Australian Competition and Consumer Commission v Ashley and Martin Pty Ltd (No 2) [2019] FCA 1739 Australian Competition and Consumer Commission v Campbell (No 3) [2021] FCA 528 Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205 Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited [2018] FCA 703; (2018) 360 ALR 124 Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23; (2020) 376 ALR 701 Australian Competition and Consumer Commission v Healthengine Pty Ltd [2020] FCA 1203 Australian Competition and Consumer Commission v Lifestyle Photographers Pty Ltd [2016] FCA 1538 Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; (2011) ATPR 42-363 Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; (2013) ATPR 42-441 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79 Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; (2011) ATPR 42-379 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 278 FCR 450 Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 Rural Press Ltd v Australian Competition and Consumer Commission [2003] FCA 75; (2003) 203 ALR 217 Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2022] FCAFC 57; (2022) 399 ALR 704 Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 347 ALR 622 Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185; (2020) 384 ALR 496 Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224; (2017) 258 FCR 190
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	69
Date of hearing:	5 June 2023
Counsel for the Applicant:	Ms S Mirzabegian SC and Ms M Parker
Solicitor for the Applicant:	Johnson Winter & Slattery
Counsel for the Respondent:	Ms K Richardson SC and Mr P Strickland
Solicitor for the Respondent:	Corrs Chambers Westgarth

ORDERS

		NSD 942 of 2022
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	DELL AUSTRALIA PTY LTD (ACN 003 855 561) Respondent

order made by:	JACKMAN J
DATE OF ORDER:	5 JUNE 2023

THE COURT DECLARES THAT:

1. In the period from August 2019 to December 2021, the Respondent, Dell Australia Pty Ltd (Dell), in trade or commerce:

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

(b) in connection with the supply or possible supply of goods or in connection with the promotion of the supply of goods, made false or misleading representations with respect to the price of those goods in contravention of section 29(1)(i) of the ACL,

by representing on the website accessible at www.dell.com.au, https://www.dell.com/en-au and from October 2020 at deals.dell.com/en-au (Dell Website), in respect of monitors offered for sale to consumers who had selected a computer for purchase on the Dell Website (as an Add-on):

(c) where a higher price displayed in strikethrough form (Strikethrough Price) was displayed for a monitor when offered as an Add-on:

(i) that the amount of the discount that a consumer purchasing the monitor would receive was equivalent to the difference between the Strikethrough Price and the price for purchase of the monitor when that was false or misleading because, in fact, a consumer who purchased that monitor as an Add-on would not have saved the difference between the Strikethrough Price and the purchase price;

(ii) that the Strikethrough Price was the price at which the monitor was offered for sale to consumers before the discount was applied when that was false or misleading because, in fact, the Strikethrough Price was not the price at which the monitor was offered for sale before the discount was applied;

(iii) that the Strikethrough Price was the standard price at which the monitor was offered for sale to consumers absent any discounts, being the “everyday price” of a product sold on the Dell Website absent any discounts, when that was false or misleading because, in fact, the Strikethrough Price was not the standard price at which the Add-on Monitor was offered for sale on the Dell Website absent any discounts;

(d) that the purchase price displayed for a monitor offered as an Add-on was at least equal to the cheapest price that the monitor was available to consumers on a standalone basis on the Dell Website, when that was false or misleading because, in fact, the monitor was available for purchase on the Dell Website on a standalone basis at a cheaper price than it was as an Add-on;

(e) on one of the URLs within the Dell Website, known as the “Special Events Platform”, from October 2020, that the purchase price displayed for a monitor offered as an Add-on was the best price for those goods offered by Dell when that was false or misleading because, in fact, the monitor was...