ACCC v TPG Internet Pty Ltd: A Case Study

The report discusses the feud between ACCC and TPG Internet Pty Ltd over misleading advertisements and unclear pricing policies. It covers the court hearings and judgments related to the case. TPG was found guilty and required to pay a penalty of $2 million. The case was appealed in Full Court and High Court, with the latter finding TPG guilty. The report concludes that TPG violated the provisions laid down by the Trade Practices Amendment (TPA) under the Australian Consumer Law Act (No 2)2010 (Cth).

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
[APPELLANT] v TPG INTERNET PTY LTD [RESPONDENT] (decided
in December 2013)
1

Table of Contents
INTRODUCTION......................................................................................................................3
THE MAIN REASON BEHIND THE FEUD BETWEEN ACCC AND TPG.........................3
THE SEQUENCE OF COURT HEARINGS............................................................................3
CONCLUSION..........................................................................................................................5
REFERENCES...........................................................................................................................6
2

INTRODUCTION
The report discusses the hearings, proceedings, and judgments that had occurred
between the Australian Competition and Consumer Commission (ACCC) and TPG Internet
Pty Ltd. The case was between the two pioneer companies related to controversy an
advertisement campaign (Yuile and Star, 2017). The report includes the different aspects and
perspectives that were related to the hearing of causes and decisions that were given by the
judges related to the case.
THE MAIN REASON BEHIND THE FEUD BETWEEN ACCC AND
TPG
TPG was found to be promoting a multi-media campaign that was related to the offers
which were provided to the consumers for the provision of ADSL2+ service. The price which
was offered to the customers were attractive in nature and proposed that the consumers can
avail internet services through telephone lines. This could be done by providing broadband
internet connection to the uses with no limit to data downloading facilities. The
advertisements that were promoted by TPG offered that ADSL2+ service was to be provided
at $29.99 per month which was reasonably low. The advertisement proposed that the
customer was required to pay a total sum of $129.95 in addition to a deposit of $20.00 which
would be charged for the provision of ADSL2+ services along with telephone charges
(Vijayasingam, 2017). The Australian Competition and Consumer Commission alleged that
the offerings that were given by TPG regarding the provision of ADSL2+ services at the
attractive and low price were not in accordance with the 53C(1)(c) of the Trade Practices Act
1974 (Cth) (“the TPA”). The Act summoned that the company must be clear and transparent
about the prices that were charged for the provision of the services and products. But in the
case of TPG, it was not clear as it did not charge a single figure single price for the package
of services which it was provided to the large section of consumers.
THE SEQUENCE OF COURT HEARINGS
A case had come into the notice of Courts in Australia on 12 December 2013. In this
case, there were two parties that were the Australian Competition and Consumer Commission
(ACCC) and TPG Internet Pty Ltd. appealing against each other. Truman Hoyle was
3

representing TPG for the case hearings that were held in the Federal Court. The case was
appealed by ACCC on account of the urgent injunction which was against an advertising
campaign that has been initiated and promoted by TPG for the conduction of internet
services.
In the first round of hearings, ACCC had appealed in the Court against TPG Internet
Pty Ltd. The proceedings were presented under a single judge who was also considered as the
primary judge. The single panel judge heard all the pleas of both parties and passed the
judgment in favor of ACCC and TPG was found to guilty. The primary judge summoned that
the claim made by ACCC was found to be true and therefore made a number of orders
against TPG. This included the judgment which incurred that TPG was to pay a pecuniary
penalty of about $ 2 million. This led TPG highly dis-contended and unsatisfied. TPG
decided to appeal in Full Court against the decision that was given by the primary judge. The
primary judge found that the charges that were charged by TPG for the provision of ADSL2+
services were inadequate. Additionally, the advertisement did not provide a clear picture of
the payment details which mislead and misguided the customers and consumers who
followed the advertisement (Sise, 2016). The primary judge also found that with respect to
the television, radio, newspaper and internet advertisements TPG has not made its stand clear
regarding the pricing and used to add hidden charges at the time of installing of the services
about which nothing was mentioned in the advertisement.
The second round the case between Australian Competition and Consumer
Commission (ACCC) and TPG Internet Pty Ltd. was held in Full Court. In this case, TPG
Internet Pty Ltd. appealed against ACCC (Rimmer, 2017). TPG being losing the case in the
single judge was unsatisfied with the case proceedings and made a plea and appealed in the
Full Court. Here the case was presented between three judges were present to hear the case
and carry out the proceedings in an adequate manner so that the judgment could be passed
accordingly. When the case was heard in the Court the three judges highly disagreed with the
judgment that was passed by the primary judge and set aside the decision given by him. The
judges concluded that TPG was not found to be guilty and passed the judgment in favor of
TPG and ACCC was left a loser. However, the three judges found that TPG had been
engaged in the conduction of misleading promotions and was liable to pay the pecuniary
penalty. The penalty amount was reduced to the amount of $ 50, 000 from the $ 2 million
which was summoned by the primary judge. The Full Court sided with the other judgments
that were passed by the primary judge and set TPG free from all the charges that were laid
4

down on it related to infringement. This left ACCC highly dis-contended and unsatisfied
(Osbich and Temple, 2014). ACCC was decided to appeal in the High Court against the
decision that was given by the Full Court judges. The Full court judges also found that the
revised advertisement that was presented by the TPG in the court proceedings did not contain
any misleading facts and all the promotional advertisements that were published or aired on
television, radio, newspaper internet, etc. were not misleading (Kariyawasam and Tsai,
2017). The Court note of both the advertisements which were promoted initial and later on
revised after putting the objection.
The third round of the case between ACCC and TPG was held in the High Court. In
this case, ACCC appealed against TPG (Hurley, 2014). ACC being losing the case in the Full
Court was unsatisfied with the case proceedings and made a plea and appealed against TPG
in the High Court. Here in the High Court the case was summoned and heard by a panel of
judges who after listening to the pleas of both the parties passed the judgment in favor of
ACCC. The High Court highly disagreed with the decisions that were summoned by the Full
Court judges and reinstated the decision that was given by the primary judge. The High Court
judges considered TPG to be guilty and at fault (Harland, 2016). The Court found that the
advertisements that were promoted by TPG before 1 January 2011 were not in accordance to
the concise conductions related to the provision of internet services. As per the Australian
Consumer Law [2] (“the ACL”) applied with respect to advertisements published on or after
that date. Sections 52 and 53(e) and (g) of the TPA are in the same terms as ss 18 and 29(1)(i)
and (m) of the ACL it was found that any incorporation not following the directives
mentioned by TPA and promoting wrongful content will be liable to pay for the penalty
charged against the propagation of inadequate information to a large number of people
(Frommer, 2015)
CONCLUSION
It was found that TPG had been promoting misleading advertisements and was
unclear in its pricing policies in the advertisements. TPG was found to be guilty and was
required to pay the penalty charges of about $ 2 million which was summoned by the primary
judge (Barker, Grantham and Swain, 2015). TPG was found to be guilty on non-performance
of the provisions that were laid down by the Trade Practices Amendment (TPA) under the
Australian Consumer Law Act (No 2)2010 (Cth).
5

6

REFERENCES
Barker, K., Grantham, R. and Swain, W. eds., (2015). Law of Misstatements: 50 Years on
from Hedley Byrne v Heller. Bloomsbury Publishing., 13, p. 273.
Frommer, C., (2015). Minister for the Environment v Karstens [2015] FCA 649.
Environmental Law Reporter, 34(15-061/15-068), p.2. (15-061)
Harland, D., (2016). Implementing the Principles of the United Nations Guidelines for
Consumer Protection. MIICEMA 2014 ORGANISING COMMITTEE, p.219.
Hurley, T., (2014). High court and federal court notes. Proctor, The, 34(2), p.56.
Kariyawasam, K. and Tsai, M., (2017). Copyright and live streaming of sports broadcasting.
International Review of Law, Computers & Technology, Austl. L. Libr, 31(3), pp.265-
288.
Osbich, L. and Temple, H., (2014). An Overview of Australian Point-In-Time Legal
Research Sites. Austl. L. Libr., 22, p.181.
Rimmer, M., (2017). Back to the Future: The Digital Millennium Copyright Act and the
Trans-Pacific Partnership. In Annual Conference, 6(3), p.11.
Sise, P., (2016). An Alternative Approach to the Treatment of Penalties and Fines in
Bankruptcy. QUT L. Rev., 16, p.82.
Vijayasingam, R., (2017). An investigation into the need for further regulation of puffery in
advertisements, in light of E-Commerce. In Annual Conference (Vol. 64)
Yuile, A. and Star, D., (2017). High court and federal court casenotes. Proctor, The, 37(11),
p.34.
7