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Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2)

Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2)

Case [2011] FCA 670 15 June 2011

Trade Practices Act 1974 (Cth)

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FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670

Citation: Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GLOBAL ONE MOBILE ENTERTAINMENT LIMITED ACN 090 119 430 and 6G PTY LIMITED ACN 097 080 718

File number: NSD 1388 of 2010

Judge: BENNETT J

Date of judgment: 15 June 2011

Catchwords: TRADE PRACTICES – contravention of ss 52 and 53(e) of Trade Practices Act 1974 (Cth) – wording of declarations – whether to grant injunctions in general terms or limited to the subject matter of the proceedings

Legislation: Competition and Consumer Act2010 (Cth) s 232
Trade Practices Act 1974 (Cth) ss 52, 53(e)

Cases cited:
Australian Competition and Consumer Commission v Boost Tel Pty Ltd [2010] FCA 701 cited
Australian Competition and Consumer Commission v Francis (2004) applied
BMW Australia Ltd v Australian Competition and Consumer Commission (2003) 207 ALR 452 applied
Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 applied

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 distinguished
Warramunda Village Inc v Pryde (2001) 105 FCR 437 cited

Date of hearing: Determined on the papers

Date of last submissions: 27 May 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 28

Counsel for the Applicant: Mr S White SC with Mr D Tynan

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondents: Mr T Parker SC with Mr A Vincent

Solicitor for the Respondents: Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1388 of 2010

BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant

AND:
GLOBAL ONE MOBILE ENTERTAINMENT LIMITED
ACN 090 119 430
First Respondent

6G PTY LIMITED ACN 097 080 718
Second Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

15 JUNE 2011

WHERE MADE:

SYDNEY

THE COURT:
Declarations
1. Declares that the First Respondent (Global One), from 14 February 2010 to 22 May 2010, while engaged in trade or commerce, contravened ss 52 and 53(e) of the Trade Practices Act 1974 (the Act) by causing an advertisement promoting mobile telephone premium content services (Content Services) (by offering the song “One Time” by Justin Bieber as a mobile phone ringtone) to be published on television (the First Advertisement) which represented that any consumer responding to the First Advertisement by sending an SMS message would purchase a one-off service at a one-off cost when in fact the consumer was subscribing to a service with an initial sign-up fee and an ongoing subscription fee.
2. Declares that the Second Respondent (6G), while engaged in trade or commerce, contravened ss 52 and 53(e) of the Act by causing:
a. an advertisement promoting content services (by offering entry into a mobile phone quiz game) to be published on television from 7…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australian Competition and Consumer Commission v Global One...

Details

AGLC: Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670
Case: [2011] FCA 670
Decision Date: 15 June 2011

CaseChat Overview and Summary

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Global One Mobile Entertainment Limited, alleging contraventions of sections 52 and 53(e) of the Trade Practices Act 1974 (Cth) concerning misleading or deceptive conduct and false or misleading representations. The case was heard and determined by the Federal Court of Australia, which was tasked with deciding whether the wording of the proposed declarations should be in general terms or limited to the specific subject matter of the proceedings.

The legal issues before the court included the appropriate scope and terms of the declarations that would address the misleading conduct alleged by the ACCC. The court was required to consider whether the declarations should be narrowly tailored to the specific instances of misleading conduct or should be more broadly worded to prevent any future similar conduct. The court also needed to weigh the need for effective enforcement against the potential impact on the respondent's ability to conduct legitimate business activities.

In determining the appropriate terms of the declarations, the court considered the need for effective deterrence and prevention of misleading conduct. The court found that declarations in general terms were necessary to adequately address the misleading conduct and to provide clear guidance to the respondent regarding future conduct. The court held that narrowly tailored declarations would not sufficiently protect consumers or deter the respondent from engaging in similar conduct in the future. Consequently, the court decided to grant declarations in general terms, which would provide a broader scope of protection and deterrence. The court's decision ensured that the respondent would be clearly aware of the conduct that was prohibited and would help to prevent future misleading conduct.

The orders included a stay on certain declarations pending the outcome of any appeal filed by the respondents. Specifically, orders 5, 6, and 13 were stayed until the determination of any appeal filed by the respondents within 21 days of the date of these orders. This provided a temporary reprieve for the respondents, allowing them to seek further judicial review of the court's decision while ensuring that the broader public interest was protected by the interim effect of the declarations.

Orders

Orders of the court

Stay

14. Provided that the Respondents file a Notice of Appeal within 21 days of the date of these orders, Orders 5, 6 and 13 be stayed until the determination of that appeal.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670

Most Recent Citation

Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976

Cases Citing This Decision

Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) [2012] FCA 976
Citation 1 (Para 2)

…for product safety standard contraventions; 4. Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670 – $375,000 penalty for misleading advertising of telephone premium content services; 5. Australian Competition and Consumer Commission v Smash Enterprises…

See all citing cases →

Cases Cited

Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited [2011] FCA 393
Citation 1 (Para 1)

…On 21 April 2011 I delivered judgment in these proceedings: Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited [2011] FCA 393 ( Reasons ). I found that the respondents ( Global One and 6G ) had contravened both ss 52 and 53(e) of the Trade Practices Act 1974 (Cth) ( the Act )…
Australian Competition and Consumer Commission v Boost Tel Pty Ltd [2010] FCA 701
Citation 2 (Para 16)

…G unfairly to further proceedings to determine whether they have breached them (cf Australian Competition and Consumer Commission v Boost Tel Pty Ltd [2010] FCA 701 at [111] per Siopis J). The declarations that I propose to make, which reflect the reasons given for the making of the declarations and orders, toget…
Australian Competition and Consumer Commission v Francis [2004] FCA 487
Citation 3 (Para 9)

…However, in Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, Gray J observed that it was clear that the vagueness of the declaration in Tobacco Institute was in part attributable to the result of the different views taken by the members of the Full Court as to the precise misleading or dec…
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75
Citation 4 (Para 10)

…In Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53, the High Court expressed disapproval of the making of declarations in the barest terms. In Rural Press , the trial judge had made declarations that the appellants had contravened or been directly or indirectly knowingly concerned…
Australian Competition and Consumer Commission v BMW Australia Limited [2003] FCA 727
Citation 5 (Para 3)

…In BMW Australia Ltd v Australian Competition and Consumer Commission (2003) 207 ALR 452, the appellant was alleged to have failed to comply with a prescribed product safety standard for vehicle jacks and specified safety instructions accompanying vehicle jacks. The trial judge had made a general declaration that the appellant’s conduct had contravened s 65C(1)(a) of the…
Warramunda Village Inc v Pryde [2002] FCA 250
Citation 6 (Para 6)

…hat their proposed declaration is sufficient, Global One and 6G rely on the statement of Gray, Branson and North JJ in Warramunda Village Inc v Pryde (2001) 105 FCR 437 at [8] that: The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the pa…
Warramunda Village Inc v Pryde [2001] FCA 61
Citation 7 (Para 6)

…n support of their submission that their proposed declaration is sufficient, Global One and 6G rely on the statement of Gray, Branson and North JJ in Warramunda Village Inc v Pryde (2001) 105 FCR 437 at [8] that: The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the righ…
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) [1993] FCA 105
Citation 8 (Para 8)

…d 6G point out that their approach is consistent with Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, where the Full Court made a declaration in terms that the published advertisement in that case was ‘ misleading and deceptive contrary to the provis…
Australian Federation of Consumer Organisations Inc v Tobacco Institute of Australia Ltd [1991] FCA 150
Citation 9 (Para 8)

…Global One and 6G point out that their approach is consistent with Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89, where the Full Court made a declaration in terms that the published advertisement in that case was ‘ misleading and dec…

Legislation Cited

Competition and Consumer Act 2010 (Cth) 232
2 mentions (from Para 11)

Citation:		Australian Competition and Consumer Commission v Global One Mobile Entertainment Limited (No 2) [2011] FCA 670
Parties:		AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v GLOBAL ONE MOBILE ENTERTAINMENT LIMITED ACN 090 119 430 and 6G PTY LIMITED ACN 097 080 718
File number:		NSD 1388 of 2010
Judge:		BENNETT J
Date of judgment:		15 June 2011
Catchwords:		TRADE PRACTICES – contravention of ss 52 and 53(e) of Trade Practices Act 1974 (Cth) – wording of declarations – whether to grant injunctions in general terms or limited to the subject matter of the proceedings
Legislation:		Competition and Consumer Act2010 (Cth) s 232 Trade Practices Act 1974 (Cth) ss 52, 53(e)
Cases cited:		Australian Competition and Consumer Commission v Boost Tel Pty Ltd [2010] FCA 701 cited Australian Competition and Consumer Commission v Francis (2004) applied BMW Australia Ltd v Australian Competition and Consumer Commission (2003) 207 ALR 452 applied Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 applied Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 distinguished Warramunda Village Inc v Pryde (2001) 105 FCR 437 cited
Date of hearing:	Determined on the papers
Date of last submissions:	27 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Applicant:	Mr S White SC with Mr D Tynan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr T Parker SC with Mr A Vincent
Solicitor for the Respondents:	Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1388 of 2010

JUDGE:	BENNETT J
DATE OF ORDER:	15 JUNE 2011
WHERE MADE:	SYDNEY