Maddox Smith Staff asked 4 years ago

Australian Competition and Consumer Commission

Extra guidance It became obvious to me from a number of questions asked during the tutorials on Thursday 29 January that there is confusion among some students who have been reading the High Court judgment about the roles played by the various courts which also heard this dispute. I have, therefore, taken some extra time yesterday to prepare these additional notes for the assistance of students in understanding the questions asked. The sequence of court hearings The Australian Competition and Consumer Commission (ACCC) brought proceedings against internet provider TPG because of an advertising campaign for internet services TPG had been conducting. Initially, the proceedings were heard by a single judge, who is referred to in the judgment as “the primary judge”. ACCC was largely successful against TPG in those proceedings. TPG, having lost the case before the primary judge, appealed to three judges, referred to in the judgment as the “Full Court”. That court largely disagreed with the conclusions of the primary judge and set aside his decision. In effect, TPG won its appeal to the Full Court. This left ACCC as the loser. It appealed to the High Court, which disagreed with the conclusions of the Full Court in favour of TPG and essentially reinstated the decision made by the primary charge in favour of ACCC. The judgment you are reading, and to which the assignment questions relate, is the judgment of the High Court only. However, to enable the “ratio” of its decision to be understood, the High Court includes in its judgment summaries of the reasons which the primary judge and the Full Court gave in coming to their respective (and contradictory) decisions. The questions in this assignment The questions you are required to answer are designed to enable you to express your own understanding of what the three courts separately determined. However, as I have said on a number of occasions, this is not a cut and paste exercise. It is not possible to answer the questions simply by locating the relevant paragraphs in the judgment and copying them into your answer. (One class assignment in a previous trimester resorted to this technique and was awarded 2/25; as a result all the members of the group failed the subject.) You must express your answer in your own words and to enable the tutors marking the assignments to be sure that you have done this you should state, in brackets at the end of your answers to each question, the paragraph numbers from the judgment you have referred to in preparing your answer. I encourage you to express answers in either numbered or bullet point form rather than long paragraphs1. Briefly describe the nature of TPG’s advertising which caused ACCC to bring these proceedings [2 marks] 2. What statutory provisions did ACCC allege that TPG’s advertising contravened [2 marks] 3. What were the findings (conclusions) of the primary judge about the following aspects of the advertising [6 marks] #bundling. #the set up fee. #single price. 4. What were the differences in principle between the approach of the Full Court and the approach of the primary judge in evaluating whether the TPG advertising was misleading? [2 marks] 5. The High Court concluded that the approach taken by the Full Court was not correct. For what reason or reasons did the High Court come to this conclusion? [2 marks] 6. The Full Court, in coming to its conclusions, applied as a precedent the ratio in a case called Parkdale Custom Built Furniture v Puxu (“Puxu”). The High Court said that the Full Court wrongly applied the principle in Puxu. Explain why the High Court thought Puxu was not a proper precedent to apply to the TPG advertising [3 marks] 7. What did the High Court have to say about the “dominant message” approach? [2 marks] 8. What did the High Court say about the assumed level of knowledge in TPG’s target audience? [2 marks] 9. Is an intention to mislead essential for advertising to be misleading? Explain what the High Court thought about this [2 marks] 10. If you were employed in the marketing section of an internet service provider or a fitness centre which was about to launch an advertising campaign promoting an attractive “plan” for membership in which there were several “parts” (costs and benefits) to be taken into account by potential customers, what advice would you give about the format of the advertising, based on your understanding of the High Court’s ruling in ACCC v TPG? [2 marks]