Australian Competition and Consumer Commission v Dodo Services Pty Ltd

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Dodo Services Pty Ltd and iPrimus Telecommunications Pty Ltd (collectively "Dodo and iPrimus"), alleging contraventions of sections 18(1), 29(1)(b), (g) and 34 of the Australian Consumer Law (ACL). Dodo and iPrimus are companies providing retail broadband internet services via the National Broadband Network (NBN). The ACCC alleged that Dodo and iPrimus made misleading representations regarding the speed of their NBN services during peak evening hours, in breach of consumer protection laws. The ACCC sought declarations of contravention, pecuniary penalties, and an order for Dodo and iPrimus to contribute to the ACCC's costs.

The court considered whether Dodo and iPrimus had contravened the ACL by misleading consumers about the speed of their NBN plans during the busy evening period. The court also assessed whether the proposed pecuniary penalties and costs orders were appropriate. The primary issue was whether the misleading representations were made on each occasion a consumer viewed them, and thus constituted separate contraventions. The court found that each instance of the misleading representations being displayed constituted a separate contravention.

The court held that it was appropriate to make declarations of contravention as requested by the ACCC. The court found that the requirements for declaratory relief were satisfied, including that there was a real and important question, the ACCC had a genuine interest, and Dodo and iPrimus had an interest in opposing the declarations. The court determined that the declarations would record disapproval of the conduct, vindicate consumer concerns, and deter future contraventions. The court also found that the proposed pecuniary penalties and costs orders were appropriate, taking into account the seriousness of the contraventions and the need for deterrence. The court ordered Dodo to pay a penalty of $1.5 million and iPrimus to pay a penalty of $1 million, with both companies also contributing $75,000 to the ACCC's costs.