Australian Competition and Consumer Commission v. TPG Internet Pty Ltd

[2013] HCATrans 261

[2013] HCATrans 261

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M98 of 2013

B e t w e e n -

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Appellant

and

TPG INTERNET PTY LTD (ACN 068 383 737)

Respondent

FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 NOVEMBER 2013, AT 10.00 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear with MR C.D. GOLVAN, SC and MR. E.J.C. HEEREY, for the appellant.  (instructed by the Australian Government Solicitor)

MR N.J. O’BRYAN, SC:   If the Court pleases, I appear with MR M.J. HOYNE, for the respondent.  (instructed by Truman Hoyle Lawyers)

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Your Honours, at the outset we seek leave to amend the notice of appeal.

FRENCH CJ:   Is that opposed, Mr O’Bryan?

MR O’BRYAN:   No, your Honour.

FRENCH CJ:   Leave is granted.

MR GLEESON:   Thank you, your Honour.  Your Honours will see from our outline that one point which will re‑emerge throughout this appeal is, in our submission, the respondent has attempted to justify the Full Court’s approach through a misreading of the reasons of both the trial judge and the Full Court.  For that reason, it will be necessary for me to look in submissions closely at the reasons of both courts below to address that central point.  Beyond that, we would submit, the appeal raises perhaps more profound issues as to the analytical tools properly available to a trial judge in determining whether there is misleading conduct and, secondly, the role of deterrence in civil penalty proceedings such as the present.

FRENCH CJ:   You say that the Full Court stayed within the boundaries of its appellate function?

MR GLEESON:   To the extent we say that it overturned a critical finding of fact without reference to evidence, that is a fundamental error in the appellate method.  That is on liability.  In relation to deterrence, to the extent it basically ignored everything the trial judge had said on the subject of deterrence, that was a fundamental approach in principle.  I am not sure that allows me to say it went outside its function.

FRENCH CJ:   The critical finding of fact being?

MR GLEESON:   Being that the target audience would not bring to this advertisement a starting assumption in their head, I know that whenever I see ADSL2+ it either is or is likely to be bundled with a telephone service which is going to cost me more money such that what I am really looking at is a part of TPG’s offering as opposed to what it appears to be, namely, the guts of it.

FRENCH CJ:   This lies at the heart of the function of characterisation of conduct, does it not, which mixes up, when you are dealing with an advertisement, as I think we discussed in Campbell v Backoffice, an inference based on a hypothetical ordinary person – it embeds that in the characterisation process, really.

MR GLEESON:   Yes.

FRENCH CJ:   But this is inference from undisputed facts, I suppose.

MR GLEESON:   Well, the case that was put by TPG was that it asked the judge to make a finding that consumers would bring to the advertisement two background assumptions:  firstly, I know that set‑up fees are ubiquitous, so I am on the lookout for set‑up fees and therefore if they are referred to even in the fine print, good enough.  That is one part of their case they ran at trial.  The second part was they tried to do the same thing on bundling.  They said in relation to bundling everyone knows it is on the cards that if I am being offered ADSL2+, I will also be required to take a telephone line as a matter of technology and, more importantly, I will be required to pay for it, so I bring to any advertisement that background assumption.

Our key point on liability is that the judge looked at the evidence at the trial and said you get there on set‑up fees but you do not get there on bundling.  Then the Full Court without reference to anything except an observation in an interlocutory judgment said we come to the opposite characterisation.  Your Honour asked us on special leave what was the nature of the evidence in the trial and I gave an answer concerning the ability of the court to rely upon judicial notice or something similar to ‑ ‑ ‑

FRENCH CJ:   It is really scanty.

MR GLEESON:   Yes, but in the present case, in the end what the judge said is I have looked at your evidence, there is not enough there for me to find that given this is directed to most of Australia ‑ city, country, young, old, first time users and others ‑ you have not convinced me I can find that as of the relevant date people bring to this advertisement that background knowledge.  Now, the central point on liability was simply what material did the Full Court have to say, we get rid of that finding and we replace it with our finding, being the finding which is found at page 687, paragraph 98.  The consumer says the court:

must also be taken to have some familiarity with the market ‑

well, that is probably true as a matter generality ‑

In particular, they would know that services such as ADSL2+ are offered for sale as either “bundled” or “stand alone”.

The court gives one reason for coming to that conclusion that Justice Ryan thought that way in the application for interlocutory relief.  Now that ‑ ‑ ‑

FRENCH CJ:   Both sides of the argument are working off a pretty slender evidentiary base.  We are more in the area of inference from general knowledge of human affairs or judicial notice or something of that character, I suppose, are we not?

MR GLEESON:   I would accept that, your Honour.

CRENNAN J:   There is a schedule somewhere of complaints – not terribly extensive.  Does that relate to the particular advertisements in issue now?

MR GLEESON:   Yes, it does, your Honour, and the schedule of complaints is at page 424 and it was not decisive in the case but the trial judge referred to it.  On page 424, Mr McFadyen:

“Subject:  you tricked me

I have recently joined up to tpg adsl2+ with [the] home phone.  I honestly thought it was $29.99pm, and that’s what I got told, can you please send me the recording of the phone call.

Now, this person in the telephone call at least has got the message of $29.99 a month.  That tends to suggest the telephone call is not correcting the false and misleading advertisement, but presumably he has rung up, one might infer, because he has heard of an attractive offer of $29.99 a month:

I might have to speak to consumer affairs.  I have been telling people to join cause I thought it was 29.99 all up.  I thought it was strange when I saw you advertising on my local bus, I thought to myself is that what I have got? Please tell me im wrong and it is 29.99 including phone line rental.

Now, what he is referring to is the advertising on the local bus.  Your Honours would see an example of that advertising at pages 722 to 723.  Page 722 is the original tram ad.  That is what you see going by, and given the medium you are in, what TPG is trying to get into the head of the consumer is pretty clear.  You can get a product ADSL2+, you get unlimited data, you pay $29.99 a month.  It is TPG. 

Many consumers, as the tram goes by, would not see the line beneath it, “when bundled with TPG line rental $30pm”.  The trial judge said, well, even if someone happened to see it, given that that is basically contradicting the truth of the primary claim, if that is what it is meant to do, if it is meant to tell you the real product is ADSL2+ plus telephony and the real charge is $59.99 a month, are those words positioned in that way likely to do the job?  He said for two reasons they were not – or three reasons:  one is insufficiently prominent; two, “when bundled with” does not tell you you must bundle; and three, “when bundled with $30pm” capable of a view that if you are bundling $29.99 becomes $30.

Your Honour Justice Crennan asked about the complaints.  That is an example of one that the trial judge has.  One other one he had was at page 427 – Morgina Gomez:

The main reason we changed to use TPG bundle network, because all my family members are using TPG and also [because of] your attractive advertisement 29.99 plus $1 home line plan.

So, she read the one cent as a one dollar:

But it was only the advertisement to get us in.  It was not real!  We tried to save money, now, it ended up spending more.  The service is not as good as what you promised.

So, there are at least two people who, responding to the advertisements, have taken the view the trial judge took which is, given the media therein, given that the general thrust that is conveyed – the dominant message – many people would take away the simple point – ADSL2+, $29.99 a month.  If what you are really selling is a product very different to that, namely, a double product for $59.99 a month, if you want to comply with the law, why do you not say so?  That is the essence ‑ ‑ ‑

FRENCH CJ:   This kind of evidence, of course, feeds into the characterisation process.  It is not of itself determinative.  You would accept that.

MR GLEESON:   No, no.  We completely accept that.

FRENCH CJ:   We are talking about the hypothetical ordinary ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   Did this evidence go to the original advertisements or the revised advertisements?

MR GLEESON:   From the dates your Honour might infer, the first evidence – 22 December – the original campaign ended in October.  So this is two and a half months later, “I have recently joined up”.  It is not clear whether that is the first or the second.  It may well be the second based on the date.  Ms Gomez – 22 February 2011 – one would infer that is the revised advertisement.  It is now some four and a half months after the original advertisements have ceased.

FRENCH CJ:   There are not actually any findings ‑ ‑ ‑

MR GLEESON:   No findings at all on that.  So the only significance of that is just to show there was some material to confirm that some people were reading it in the way the judge thought the reasonable consumer might read it.  So I had opened on the point that there is a submission by the respondent which we submit is a misreading of the trial judge.  There is a rather bold submission from the respondent that the whole of our appeal is misconceived because the trial judge, in fact, found implicitly it said, the very thing the Full Court found.  That bold submission is wrong, and I might go straight to it then.  The critical paragraph that we are currently discussing is the trial judge at paragraphs 31 to 32.

FRENCH CJ:   At page?

MR GLEESON:   At page 545.  The judge addressed a contention from TPG which is awkwardly framed by TPG in a double negative:

TPG also contends that the knowledge of the ordinary or reasonable consumer about the bundling . . . is such that he or she would not assume that the advertisements referred to a separate (as distinct from bundled) service, even if the requirement for bundling was not prominent in the advertisement.

If you reverse the double negative, TPG was saying, we want you to find that ordinary consumers have sufficient knowledge about the ubiquity of bundling that when they see something which promotes ADSL2 they will bring to that an assumption, well, this may be telling me about half the product, not the whole product and, therefore, it would be good enough if the bundling requirement is disclosed in a non‑prominent manner, so that the judge is squarely addressing the very finding that the Full Court wrongly came to and the judge then rejects that finding and he gives his reasons.

Just so it is clear, your Honours, that I have correctly unpacked the double negative, we have given to the Court the respondent’s submissions at first instance that the judge was dealing with, an extract from it, and the submission is developed and then put in particular at paragraph 24(d).  Paragraph 24(d)(i) is the very submission the judge is recording and 24(d)(ii) is the parallel submission about set‑up fees.  So in 25 the positive submission was that, “A reasonable broadband consumer looking after their own interests would have been alive to the possibility or likelihood of the requirement that internet be bundled with telephony and that set‑up charges may apply”.

So that is what they asked the judge to find.  What the judge did was to reject the first part of that submission and find the second part of the submission.  He rejected the first part of the submission at 31 to 32 and he said:

whilst bundling is one available option, the array of available internet options is such that the ordinary or reasonable consumer would not have a starting assumption about the service.

So that is a square rejection of the submission.  Then he gives a further reason in 32; it is partly because ADSL2 is available in a range of forms:  bundled, naked and stand alone ‑ and I observe there bundled and stand alone will involve a financial commitment from the customer but naked will not.  Naked requires you to have a phone line apparently, but you do not have to pay anyone anything.  So of the three options, two involve paying money either to the ADSL2 supplier or to the telephony supplier.  The third does not require any payment of money.  So already we start to see a proliferation of options.  Then the judge went on, there is a plethora of internet options generally:

with a bewildering range of alternatives in terms of download limits, speed and pricing.  This range means that the ordinary or reasonable consumer is likely to look to the advertisement for information about the service –

That is the reason for rejecting the first part of the submission.  He accepted the second part of the submission in paragraph 34 and he gave a reason, that there was a universal practice in the market, you had to pay set‑up fees if you were less than 24 months, so he accepted the second part of the findings.  This is the trial judge dealing with evidence with a submission finding that part of the submission has been made good, part of it is not made good, and then the Full Court by reference only to an interlocutory judgment says the truth is different.  That, we submit, is the error in the appellate function.

CRENNAN J:   Is it right to take the view that these advertisements do not offer a stand‑alone service because the 29.95 is the six month rate that you get if you take it for six months because I just wondered if these advertisements are offering a stand‑alone service at 29.95 as one of the possibilities or not, or does TPG take the view this is offering the bundle service?

MR GLEESON:   TPG takes that view that the truth is you cannot get ADSL2+ for 29.99 a month for six months or any other period from TPG.

CRENNAN J:   For using with your own telephone line?

MR GLEESON:   Sorry, the truth is you ‑ ‑ ‑

CRENNAN J:   The telephone line provided by another provider is what I was getting at.

MR GLEESON:   Yes.  The only circumstance in which you could get it is if you have a naked telephone line.  So if you physically have the line connected but it is a line such that you are not required to pay anyone telephony for it, which basically – this is why ‑ Mr O’Bryan is going to try and persuade you shortly that your Honours know all this and so it is obvious and none of this is obvious in the slightest.

CRENNAN J:   I think Mr O’Bryan takes the view that I fall into a certain age category so I probably will not know any of it.

FRENCH CJ:   Well, there is the elderly and the less elderly, as appears from the special leave.

MR GLEESON:   Yes, he has a two‑pronged submission.  The first is your Honours all know it and, second, if your Honours do not know it you are not in a class of reasonable consumers.

FRENCH CJ:   Because we are living in a wi‑fi era now, people might not think telephone lines.

MR GLEESON:   That is right, they may not think telephone.

MR O’BRYAN:   We are going out over the internet right now.

MR GLEESON:   So what came out through the exploration of the evidence only was that naked is the situation where you physically have a telephone line connected, you are not actually getting telephony down the line, but however you got that telephone line in the past, someone is happy for you to keep having a telephone line there ‑ ‑ ‑

CRENNAN J:   You are not paying rental to a provider?

MR GLEESON:   You are not paying rental to anyone and you are not getting telephony ‑ ‑ ‑

CRENNAN J:   You are not getting a bill from any provider.

MR GLEESON:   You are not getting a bill from any provider and the only thing running down it will be ADSL2+.  That is the third category.

CRENNAN J:   So that is naked.

MR GLEESON:   That is naked.  Now, in the naked category, what might be the general thrust of the advertisement could be regarded as possibly true, but only if you are in the naked category is the general thrust true.  The general thrust is false for anyone who needs to get telephony from TPG or from another service provider.

Your Honours, the evidence - I should reference it on this question of naked - is found in volume 1 at page 78 at about line 40.  It is in the affidavit of Mr Levy.  This was the affidavit that was accepted as evidence of the factual position, but not as evidence of consumer beliefs or understanding.  So at the very end of that paragraph, he explains what “naked” is, and the general features of the market in terms of the array of options that the trial judge was speaking of in relation to ADSL2+ is evidenced at pages 78 to 80.  That is part of the evidence the trial judge was relying upon.

In terms of the plethora of other internet options, that is evidenced at pages 48 to 50, where a TPG witness goes through the range of internet options, and there is an exhibit on page 50 at paragraph 26 which is the advertising from rival competitors which is found at pages 53 through to 64.  That is the material upon which the trial judge said, “When I look at the array of options, both in ADSL2+ and in the larger internet market, I do not make the finding you seek that consumers bring this starting assumption to the product”.

GAGELER J:   Mr Solicitor, can I just take you back to the finding in the Full Court that you criticise, page 687, paragraph 98.  I may be reading it too modestly, but it seems to me that the Full Court is saying nothing more than that when a reasonable consumer sees an advertisement for ADSL2+, the consumer would think that might be bundled or it might not be bundled.  The assumption goes no further than the possibility of bundling or not bundling.

MR GLEESON:   Not a mere possibility.  It is higher than that, which your Honour will see when the court comes back to it in paragraph 105, where they reject the trial judge’s approach because it:

does not take into account the need to have regard to the attributes of the hypothetical reader or viewer.  As we have said, these attributes include knowledge of the “bundling” method of sale commonly employed with this type of service, as well as knowledge that setup charges are often applied.

That is the amendment we have made to the notice of appeal.  The finding is that the ordinary consumer, and this is in a class of millions of Australians – most adults, young people, first time users – they all bring to these advertisements a knowledge that bundling is commonly employed.  That is the finding.  That is the very finding the trial judge said “I do not make because I have looked at the evidence”, and the Full Court says “The reason we make that finding is because Justice Ryan said that in an application ‑ ‑ ‑

FRENCH CJ:   Well, do they say that or they just refer to his view?

MR GLEESON:   It is the only hint we have as to what the reason is for it.  So there are two possibilities, your Honour.  One is it is just a reference, so if it is not in that category the Full Court is saying ‑ ‑ ‑

FRENCH CJ:   That was just a provisional finding about the weakness of the ACCC case at that time.

MR GLEESON:   Yes, in a case where there was no evidence before Justice Ryan about consumer knowledge.  He said I get to that finding based on the advertisement.  So if we put that to one side, forget that, the court has effectively said really it is a matter of judicial notice.  People know – that is every ordinary or reasonable person in the target market which is virtually every Australian, knew at the time bundling was commonly employed. 

GAGELER J:   Does the evidence establish as a fact that in the market bundling was commonly employed with this type of service?

MR GLEESON:   The only evidence that bears on that question is pages 78 to 80 that I took the Court to.  Apparently Mr O’Bryan wishes to tell the Court something.  Would you like to tell the Court, Mr O’Bryan?

FRENCH CJ:   I think that was a reference to the advertisement to other competitors.

MR GLEESON:   Yes.  All right, well ‑ ‑ ‑

FRENCH CJ:   I do not think we need elaborate that.

MR GLEESON:   Okay.  I have taken your Honours to both those pieces of evidence.  That is the evidence.  But coming back to your Honour’s question, and if one takes it the next step, whatever one gets from that material, the critical matter the judge was directing himself to is you are not relying upon just a finding as to what commonly occurs.  You want a finding that all ordinary and reasonable consumers in the target audience, which is just about all of Australia, have knowledge that that commonly occurs. 

What the judge says is once I find the audience includes most adults, it includes first time users, first time users in the sense of first time I am committing to the financial purchase of ADSL2+ - I may be in a home where my parents have paid for it or my brother or sister has, but the first time I am thinking of making the financial commitment.  When it includes young people where the evidence established many of them do not need or care for home telephone lines any more, what they want is internet and mobile phones, when I look at that range of who the target audience is, you have not persuaded me that I should find that all the people in that class bring to these advertisements a knowledge of whether bundling is commonly employed or not.  That is the step you fall short on. 

That is the critical reason the judge said I will make your finding on one part but I will not make a finding on this part of your case.  In our submission, as part of the appellate function if the Full Court was to overturn that finding when those reasons were given, they needed to do a lot more than paragraph 98.  Then paragraph 98 becomes the crucial linchpin of the judgment because when the court then moves on at paragraphs 101 and following ‑ at 103 the court says the judge erred in having regard to the dominant message.  They accepted:

as Sheppard J said in Tobacco Institute, that many persons will only absorb the general thrust.  But this is not a mandate for ignoring the rule that the whole of the advertisement must be considered in its full context.

. . . the primary judge’s emphasis on the “dominant message” led him into error.

Then paragraph 105, I read ‑

Moreover, to approach [it that way] . . .  does not take into account . . . the attributes of the hypothetical reader or viewer.

And 106 ‑

This is the prism through which the critical question . . . must be considered.  It produces a different answer . . . in almost all of the advertisements ‑

Then, as your Honours know, in the very brief reasoning that follows, each time it is the attributes of the hypothetical viewer which play a critical role in overturning the trial judge.  At 111, with the first TV ad, those attributes mean the trial judge’s finding is suspect but112 it is left intact, but at 114 and following, every time, it is that finding that drives the rejection of the trial judge’s conclusions.  So, that is how I would seek to answer your Honour’s question.  It is absolutely central and it is a finding not just about the fact in the world, it is a finding about the members of the class knowing that fact and bringing it to bear on these advertisements as part of their mental equipment.

FRENCH CJ:   That is an “in any event” finding, is it not?  Paragraph 113 just looks to the advertisement, the revised advertisement itself, does it not?

MR GLEESON:   Paragraph 114 it is, “In any event”.  Paragraph 116 it is, “Moreover”.  Paragraph 118 it is, “Nevertheless”.

FRENCH CJ:   So it is the primary finding relates to their examination of the actual advertisements?

MR GLEESON:   I would not accept that, your Honour.  As we read it, in each case, two things are going on, they are saying.  Two things are going on.  Firstly, they are saying the dominant message is a tool that will lead you into error.  What you should be doing is looking at the ad as a whole, and the trial judge went ‑ fell into error because he looked for the big, the bright, the glossy ‑ ‑ ‑

FRENCH CJ:   The trouble is the term “dominant message” itself indicates a relative ‑ is a relative term.

MR GLEESON:   Exactly, yes.

FRENCH CJ:   So it means that you are talking about it in relation to other parts.

MR GLEESON:   Yes, but then, secondly, we would submit, absolutely crucially, they regarded the prism being the starting assumption of the ordinary consumer as being central to their findings.  Your Honours, could I then say something about the tool of dominant message as an analytical tool?  It is no more than an analytical tool.  What the judge drew from that tool was that the tribunal of fact is attempting the difficult task of putting itself in the position of the consumer, putting out of one’s mind the knowledge of the court case as to what is said to be the sufficient qualification.  You are attending to the medium.  You are attending to the way in which consumers would ordinarily receive that medium and the way in which the advertiser would know and expect them to receive that medium.

It is then saying depending upon the medium many consumers may take away that general thrust or that hook.  The trial judge is not saying you then ignore the rest of the advertisement.  He then says you have to look at the whole of the advertisement, having already done that relative exercise.  You then ask, well, if the corporation says, “But I have put the truth down here or over there”, you ask whether the way in which that has been done, viewing it as a whole, has sufficiently redressed any falsity in the general thrust of the message.

He then took it a further step which was to say where the so‑called qualification in fact goes to the heart of the truth of the primary message, where it, in truth, contradicts the primary message it would have to be very, very, very clear.  Where the qualification is, in truth, a mere qualification it is an extra piece of information, then it may not need to be quite as prominent. 

So when he came to set‑up fees, he said given that people know to expect them and given that a set‑up fee, as it were, is an additional matter you need to know about, a not very prominent qualification may be good enough.  But, he says, with the bundling point where what you are really doing is contradicting the primary claim, you are saying, although we may have got into your mind that it is $29.99 a month for ADSL2 it is, in fact, $60.  For that product, plus telephony that you may or may not want or need, it would only be the clearest of qualifications that would serve to remedy the evil.

Now, that is the approach the judge applied to dominant message.  That is what the Full Court says is an error.  That is where, we would submit, the Full Court has gone wrong by holding that that analytical tool is not available.  There seems to be a view in the very brief Full Court reasons that, provided you can look at an ad and find somewhere in it the qualifier, then that is good enough because the consumer is expected, as it were, to search ads to find the real truth in the small print or in the de‑emphasised material.  So we see that language in 113:

the bundling condition . . . could not be missed except by a perfunctory viewing.

If we stop there, the whole nature of a television advertisement is it is both an aural and a visual communication.  Many people will hear a television advertisement while they are in the kitchen cooking.  The television advertiser expects that to happen and wishes that to happen.  In the present case, the aural part of the communication had no reference to the qualification, either before or after revision.

FRENCH CJ:   At this point in its reasoning, at 113 – just, again, tying this back to the appellate function, the Full Court is, on undisputed fact, namely, the advertisement which it examines, coming to a different characterisation from that of the trial judge.

MR GLEESON:   The question is why and the why does not just seem to be a difference of opinion.  The why seems to be could not be missed except by a perfunctory viewing.  The idea seems to be the consumer has, if you want to be protected by the statute, almost a duty as it were to give your fullest of attention to advertisements.  So, in the present case, as I have said, in the voice‑over there was no qualification. 

So the theory seems to be a consumer who heard the advertisement but did not rush to the TV and read the screen in time is not protected by the statute.  That seems to be underlying the approach and for a consumer who is looking at the screen, the consumer is meant to give it 100 per cent attention to see whether what is in the big lights may somehow be contradicted by the small lights.

CRENNAN J:   Is there an argument here that the misleading and deceptive conduct can crystallise before a qualification was brought into view?

MR GLEESON:   Before, before in many cases and in other cases, other than, that is other than in the circumstances in which the qualification might be seen.

CRENNAN J:   Are you saying the Full Court did something different from the exercise in, say, Warren v Coombes?

MR GLEESON:   Yes.  If your Honours look, for example, at – at 702 you have the initial advertisement and the judge paid meticulous attention to how it functions as an advertisement.  So, what you are seeing is TPG and you have an excited voice saying “TPG gives you” and then the first thing you see and hear is “unlimited ADSL2+” and the voice‑over you hear is “unlimited ADSL2+”.  That is pages 702 to 703.  This is the first ad.  So what that has got into your mind, whether you are seeing it or hearing it is, unlimited ADSL2+, and then between the fifth and the eighth second what you hear in the excited voice is “29.99 a month”.  What you see on the screen is “29.99 a month”. 

Your Honours will see the difficulty one would have if you are watching a TV screen to jump down and try and see the minimum charge, to see that “when bundled” let alone to compute what the “when bundled” is trying to tell you.  Then, at the eighth second, through to the tenth second, the primary message is repeated, “Yep unlimited ADSL2+ for $29.99 a month” and that is what is on the screen with something in tiny print.  That is the first ad where the Full Court reluctantly said we will leave that finding to stand but really the Full Court was troubled by that finding.  The ad ends with the final bit “TPG is a multi award winner”. 

So if one goes to the next ad, the revised ad at 708, the first thing they did was they did not revise any of the aural communication.  The only thing you can hear is “29.99 a month”.  So it starts the same way, “TPG gives you unlimited ADSL2+”.  That is what you see and hear.  “29.99 a month” is what you hear and you see the screen.  The minimum charge is now a bit larger and the “when bundled” is a bit larger.  So the Full Court’s finding is, in effect, the Act does not protect a person who fails to give this ad such attention, first of all that you ‑ ‑ ‑

FRENCH CJ:   I am not sure that it is helpful to talk in terms of the Act not protecting.  The question is one of characterisation as misleading or deceptive, is it not?

MR GLEESON:   Yes.

FRENCH CJ:   Free of that kind of normative baggage.

MR GLEESON:   I will accept that, your Honour.  Is it misleading and deceptive?  The court says no because if you missed those words you would be a perfunctory viewer.  Now, at that point there is a judgment being made as to the degree of care which a consumer needs to take in viewing an advertisement in order not to be misled and not to have a right of action.  That is the sense in which I meant it. 

So that is said at the fifth second.  At the eighth second it is repeated again on the voice‑over “unlimited ADSL2+ for only $29.99 a month” and it is there in the fairly minor material and as a qualification, as I have said, it has the three problems.  It is not only small, it does not tell you you must do it and it does not tell you it is $30 extra.  So that is the essence of it. 

When your Honours see the radio transcript, the first advertisement is at 714 and this does come back to your Honour Justice Crennan’s question because the Full Court found that this was non‑misleading.  You do not see any hint of the qualification until the 19th to the 24th second of the ad.  So what they have got into people’s head is the hook which is the same hook as in the TV ad, and then in the 19th to the 24th second there is the purported qualification.  That is in the material which is in fact in rapid‑fire speech which the judge found and is present from the transcript at page 576 more clearly.

Now, the Full Court deals with that at 115.  The rapid‑fire section can be heard quite clearly.  The content could not be ignored except by a listener who failed to pay attention to it.  Now, what standard is that imposing?  That is imposing a standard whereby an advertisement has come just about to its end, the key hook is in your head and when you hear that annoying part “Ad authorised by” A, B and C, X party of Australia, when you hear that annoying rapid‑fire part of the end of the ad what is being expected of the consumer is “I must pay very close attention to that part of the ad because in this part I might find the truth which belies that which I have had put into my head in the earlier part of the ad”. 

We would submit that is a technique.  One could see what the advertiser is doing.  It is quite misleading.  That is quite an egregious technique and it is all designed to get the dominant thrust in the person’s head and it is all designed so that the qualification slips through. 

Now, the revised ad which his Honour found was an improvement but not enough is at 715.  In the revised ad it is an improvement because they have brought the qualifier up closer to the primary claim, but his Honour still found that it was not clear enough because it was such a fundamental contradiction to the primary message that it did not sufficiently clearly indicate you must take a home line and you must pay $30 a month. 

The initial printout is at page 716.  Your Honours will see the way that was actually presented at page 398.  Again, the court has found this to be not misleading.  Apart from the tragics who enjoy the sporting coverage on this page and do not allow themselves to be distracted by the foot of the page, it could hardly be clearer there that what that seeks to get into the consumer’s head is the key message.  So the standard applied by the Full Court is, notwithstanding what has been thrust into your mind is unlimited ADSL2+, 29.99 a month, what you are meant to do is to say, “Well, I know these people are probably selling me something different, so let me start working out what the real deal is and so I’ve got to go to the small print and I have to work out the small print is in fact contradicting the big print”.

GAGELER J:   It only contradicts the big print, does it not, if you take the big print as a stand‑alone service, that is, as the primary message being a naked service.  You set up a contradiction.

MR GLEESON:   Your Honour is correct.  The first step in the analysis is what is the general thrust I get from the big print?  The general thrust is I can get a product, ADSL2+, I pay 29.99 a month, and I get unlimited data.  The ACCC’s case was that by representing that and giving prominence to that, the representation that would be conveyed, absent something else, is, “I can get that without the need to acquire a second product from you and without the need to pay you more money”.  That is the way the case was set up, that from that message, that part of the message, what would be conveyed to an ordinary reasonable consumer is you can get that product without having to acquire a second product from TPG and without having to pay TPG more money.  Why?  Because in the ordinary world if someone advertises a product and emphasises its features and says its price, it is the natural reaction to think, “That’s what I am getting”.  So that is what is conveyed by the prominent message.

So the consumer naturally knows, “Well, there is that fine print down there.  If I’m interested in this product, perhaps I’ll read that or perhaps I’ll pay attention to that in due course”.  But what the consumer is not expected to think is, “This person in fact is requiring me to take a second product from them for the same amount of money, doubling the price”, and if that is what the real deal is, the non‑misleading way of advertising this is, “It’s 59.99 a month and I’m selling you ADS2+ and telephony”, and then people can say, “If I don’t want telephony”, which the young people do not want, “59.99 is a lot of money to pay for internet”.  People are then able to make that judgment.

But that is what they are deprived of and indeed it is almost Freudian – your Honours see in the bottom corner, “Why pay more?” which repeats itself through all of these ads, “Why pay more – 29.99 a month, ADSL+2, why pay more?”  Well, there is a simple answer why pay more.  The answer lies in the truth that they concealed, you are in fact paying 60, and you are paying 60 because you are getting another product whether you like it or not.  Now, that is an ad which the Full Court said is non‑misleading and the reason for that is at 120:

Whilst the emphasis of the advertisements –

is clearly upon the 29.99 a month; that is correct –

the bundling condition and the minimum charge are able to be seen.  They are quite plain in the revised advertisement.

So the standard that is being required of an advertiser in order to avoid breaching the law seems to be, provided you put the words somewhere in the ad in a legible form, whatever be – that is the end of the inquiry, you have discharged your onus.  Why the ACCC regards this Full Court decision as wrong in principle and not just a little fact case is what this says to advertisers is, “Sit down with your product and work out what it is.  From within your product extract what you regard to be a very attractive feature, including split the price if you want to.  Split a bundled product into two products and split the price.  Go out and get a hook into people’s mind for one part of the product and one price and provided you put somewhere in your ad words that can be seen which expose the lie, you’ve complied with the law”.

FRENCH CJ:   How does this line of argument fit into the question of characterisation?  The question is one of whether the conduct is misleading or deceptive under 52 or for the purposes of the various subparagraphs of 53, is it not?

MR GLEESON:   Yes.

FRENCH CJ:   Are we just doing an exercise here of another throw of the dice on characterisation?

MR GLEESON:   Two things, your Honour.  Firstly, we have our point that the finding about the starting assumptions ‑ ‑ ‑

FRENCH CJ:   Yes, I appreciate that.

MR GLEESON:   Put that to one side.

FRENCH CJ:   You are taking us right into characterisation now.

MR GLEESON:   What is happening here is that – and I should come to Global One in just one moment as an example of the “dominant message” approach – the judge is saying an available analytical tool is to look at an advertisement in its medium and if an advertisement is constructed in a way that it has a general thrust or a dominant message which is likely to be taken as a consumer as telling me about the essence of the product – if it is constructed by that technique, then if in truth the real product has some very larger or different or discrete feature ‑ ‑ ‑

FRENCH CJ:   The question is whether the advertisements have a tendency to or do lead into error.

MR GLEESON:   The reason they lead into error, what is implicit in the trial judge’s view and implicitly rejected by the Full Court is a view that in the real world consumers do and are entitled to take away the general thrust of advertisements as opposed to the Full Court’s view which is, in effect, you should treat an advertisement as something whereby if you want to place reliance upon it, you are required to study every aspect of it to see whether the truth of one part is contradicted by another part.  That is why the court keeps saying it is enough if the condition is able to be seen ‑ ‑ ‑

FRENCH CJ:   Well, you are disagreeing with the Full Court’s analytical approach to characterisation, that is, the question “is this misleading or deceptive conduct?”

MR GLEESON:   At a high level, yes, but at a more specific level, I am seeking to say that the dominant message analytical tool is an available tool.  It is not erroneous in an appropriate case to see if that tool helps you ‑ ‑ ‑

FRENCH CJ:   I think the Full Court seemed to have attributed to the trial judge a reliance solely on the dominant message aspect.

MR GLEESON:   Yes, and the way the trial judge applied it, of course, was in the 50 paragraphs we have referenced.  He said “Although I have found a dominant message and it is prima facie a misrepresentation, I must look at the entirety of the ad, the qualifications, the medium it is in, to see whether that dominant message has in fact carried through to an actionable representation”.  His Honour did that exercise which the Full Court did not give him credit for.  It is characterisation, your Honour, but it is whether that tool is an available way to assist a tribunal of fact in the characterisation exercise.

The Full Court seems to be saying, fairly strongly, that tool leads you into error because what you should do instead is you should sit back, you should read the whole thing, you should construe the entirety of it.  Provided you can see or hear it somewhere in the advertisement that would be enough.  Why?  Because any consumer who does not give it that degree of attention is a person who is not sufficiently taking care of their own interests, and that is why the court circles back to the Parkdale v Puxu notion that the Act is not there to protect those who fail to take reasonable care for their own interests.  The underlying idea seems to be, if you listen to a radio ad and you switch off when the rapid fire speech comes, you have not protected your own interests.  If you read a print ad, and you do not search the fine print to see if the headline claim is false, you have not sufficiently protected your own interests.

FRENCH CJ:   That failing to sufficiently protect your own interests is really an aspect of the implicit causality that is involved in characterisation of something as misleading or deceptive.  That is to say, if you are led into error, it is not because of the content of the advertisement, it is because you have misread it or failed to read it.

MR GLEESON:   Yes.  I am accepting what your Honour says, that it is, ultimately, a characterisation exercise.  Within that, I am seeking to put that it is not simply a case that a trial judge went one way, a Full Court went another way, we are quibbling with that and we would prefer the trial judge.  Of course, we do, but I am trying to say beyond that, we know why the trial judge got to his result.  It is the most meticulous analysis of each advertisement.

FRENCH CJ:   I just did not want to slop over into normative arguments about whether people should be looking after themselves or be more careful, and so forth.  That is not the question.  It reduces to one of characterisation and causal connection.

MR GLEESON:   We would agree that is not the question, although, with respect, there is a flavour in the Full Court’s judgment when they keep saying you could not miss it, except with a perfunctory viewing.  They had set up Parkdale v Puxu in the relevant principles, back on page 685, and this seems to be what drove the Full Court’s approach at 79 – start with Puxu:

. . . where the conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context –

Tobacco Institute, where Justice Sheppard said consumers often take away the “general thrust”, you must read in context.  Then they talk about some authorities in 83.  Then the overarching rule in 84 is:

it is necessary to look at the whole of the advertisement in its full context.

In one sense, that is unexceptional, but as applied what seems to happen is that the careful analysis the trial judge did of the medium, the type of viewer, how the viewer would appreciate it, the relationship between the alleged qualification and the primary message, all of that has been swept aside by saying, if I can read this and see it, that is sufficient in the characterisation exercise.

Your Honours, just so I have completed them, the improved – 717 is an original print ad.  It is almost impossible to think that a reasonable consumer picks up the when bundled and understands from it what the consumer is meant to understand.  Page 718 is an original print, it is in the same category.  Page 720 is revised print, improved but not good enough; same for 721.  Page 722 is interesting, that is the Melbourne tram.  One can hardly think of a more evanescent experience than whether you bother to look at the side of the tram.  It is pretty clear what sticks in your head from that and, indeed, the qualification is half covered by the vent of the tram, which is not a good start, so they are there.

I wish to take your Honours to Global One (2012) ATPR 42‑419. At paragraph 84 and 85 the analytical approach is the same as the trial judge’s, and a correct one, we would submit.

FRENCH CJ:   What is the purpose of taking us to this?

MR GLEESON:   The purpose of this is that the analytical tool the trial judge used is consistent with authority and is correct.  Namely, one does not simply say, I look at the thing as a whole.  That does not give you sufficient guidance.  One starts to look at, more precisely, what is the medium being exploited?  Is the advertisement transient or otherwise?  Does it leave a dominant impression in the mind of a consumer?  Does the consumer have a fixed reference point to check or recheck the messages?  That is particularly true of the radio advertisement, the TV advertisement, and the tram advertisement.  It is less true of the print advertisement:

The consumer must deal with the cognitive cues triggered by the dominant impression the advertisement makes in the space of time the advertisement is screened.

Then, at paragraph 95:

The simple fact is the advertisement is plainly designed to operate as a hook to induce the consumer to respond to –

it and in this particular case you had to sign up immediately and text back “Yes” in which case you were on the hook for an ongoing subscription.  So, our submission is that the law should recognise that this lawful advertising technique of getting a hook in people’s mind can contravene the statute where it has the sort of effect we see in the present case. 

Your Honours, it might be convenient if I move to penalty then? I should perhaps try and be modern and refer to the Australian Consumer Law to go to section 224, difficult as it is, to ask your Honours to look at the text for the awarding of penalties which matches the former section in the Trade Practices Act.  We would make these submissions.  Firstly, the penalty is to be awarded by reference to each act or omission of contravention.  Each contravening advertisement is a separate contravention and is liable to a separate penalty.

FRENCH CJ:   I think the trial judge identified nine lines of conduct, did he?

MR GLEESON:   That is when he came to the grouping.  At the starting point - one works back from it, the statute has identified that each contravening advertisement is liable to a penalty.  The maximum for each is 1.1.  That would produce a very large number.  But it is a reference point in this sense.  As in a criminal sentencing context, it says that Parliament has considered that any one advertisement that contravenes section 29 of this law, that is, it has to have the extra element beyond pure misleading and deceptive conduct, can warrant a penalty of up to $1.1 million. 

In the present case, we have hundreds, thousands, perhaps millions of contraventions but that is the starting point that it is per contravention.  Then, we have the three mandatory factors in subsection (2) and the, we have the $1.1 million in subsection (3) item 2 for each act or omission of contravention.  That is the starting point. 

Could I then go to the case law and put three propositions on the case law?  The first is the cases have established a series of additional factors which may be more or less relevant in a given case in determining penalty.  Secondly, the cases have established that deterrence, general and specific, is the central prism through which the exercise is to be done.  Thirdly, the cases have established that a particular aspect of deterrence is that a penalty should not be so low as to be capable of being treated as a mere cost of doing business.  The key authorities are firstly your Honour the Chief Justice’s judgment in TPC v CSR (1991) ATPR 41‑076, between pages 292 and 294.

FRENCH CJ:   The primary proposition relevant to this case arising out of that and subsequent cases is that of deterrence, is it not?

MR GLEESON:   It is deterrence has to be given central weight and it is, if you like, a prism through which one looks at the individual factors.  If I could just reference the second and third cases - NW Frozen Foods v ACCC (1996) 71 FCR 285, between pages 292 and 293, and then in the Full Court, Singtel Optus v ACCC (2012) 287 ALR 249, particularly at paragraphs 62 and 63. This case is emblazoned upon my mind, your Honours, because of the inadequacy of counsel that led to the result in this case. All submissions of counsel were rejected thoroughly, including a suggestion that deterrence be given a more moderate role in the process.

At paragraph 62, the Full Court in unmistakable words identified the centrality of deterrence.  They identified the penalty should not be regarded as a mere cost of doing business, and they identified that it may be appropriate to have a look at the profit made from the campaign not for the purpose of profit stripping but for the purpose of providing a test as to whether this penalty really would sting, whether it really would operate as general and specific deterrence.

FRENCH CJ:   This was about an $8 million campaign, was it not?

MR GLEESON:   The present case is an $8.9 million campaign, our case.  It generated revenue of $59 million.  It generated EBITDA of $24 million and it apparently generated profit of $8 million.  That is the campaign.  It is a campaign of a massive scale over 13 months across every form of media in Australia, as was TPG’s right.  It was very obvious what the purpose of the campaign was.  They are a player just below Telstra and Optus.  They wanted, as they said, a call to action.  They wanted to get customers away. Their customer base in a year built from 9,000 to 110,000 in this campaign, and these factors were very significant to the trial judge in saying the penalty must hurt.  So they are the authorities.

Could I then just briefly show that the trial judge did give centrality to deterrence?  He dealt with penalty between 614 and 637.  At 616 he gave deterrence centrality at paragraphs 63 to 67, and at two critical paragraphs, 69 and 70, he concluded that this case required a sizeable penalty, having regard to both specific and general deterrence.  That is the finding through which he then went on to look at the particular factors.  One thing you will not find in the Full Court’s judgment is any dealing with these paragraphs.  The Full Court has not said the judge was wrong to regard this as a case requiring a sizeable penalty to achieve deterrence.  It is as if it has been just put to one side.  With that as the framework he moves to the classes of contravention and the competing submissions were “nine classes”, paragraph 73, or “three classes” at 75.

Could I dwell on 75, because that submission which the trial judge rejected is what the Full Court ultimately turned to?  The TPG submission was, there should only be three classes ‑ I am sorry, the three classes are set‑up by TPG in paragraph 72.  So, in other words, you define the categories by reference to the content of the representation and the content of the contravention.  So the problem with that approach, as his Honour found at 75, is it does not pay sufficient attention to the distinct phases of the campaign and to the differences in the duration reach and effect of the different kinds of advertisements.  Grouping into nine classes is a better approach.

The problem with the TPG approach and the Full Court approach is, no matter how many times you repeat the same basic contravention you only ever get the same penalty.  Whereas the trial judge’s approach, which is a more nuanced one, is to see how the phases of the campaign developed and how the differences in conduct played out.  So your Honours will then see in 76 and 77 the judge was alert to relevant differences between the phases of the campaign.  In 76, subparagraphs (a) and (b) are two respects in which the first campaign was more serious and worthy of a higher penalty.  Subparagraphs (c) and (d) are two respects in which the second campaign was more serious and worthy of a higher penalty.

Then at 77 there is a very close attention to the exploitation of different media, how that was likely to create different tendencies to mislead, different likely audiences, different duration, intensity and so on.  So that the ultimate division the trial judge came to after considering the other matters, which is found at 636, paragraph 141, is to divide the campaign into its two phases, the short and the long, and to divide it into the different media exploited during each phase and attend to the differences between the phases, the differences between the media and allocate penalties.  Now, within a trial ‑ ‑ ‑

FRENCH CJ:   It looks like a process of instinctive synthesis here.  There is a global figure and then a divvy up.

MR GLEESON:   Yes.  One criticism of the Full Court that is perhaps unfair is to say in the end he did not tell us more about how he got to the individual figures and the global figures.  We would submit with the very careful analysis of some 20 pages a judge would not be expected to do more than carry out the instinctive synthesis and give the final numbers.  Looking at those final numbers, assuming liability on the larger case, it is almost impossible to think how a Full Court could say that involves a manifest error, a House v The King‑type error, an error whereby this is totally beyond the range, particularly when you put deterrence in the ring.

That is the centrality one sees the trial judge give.  Could I just show where else it came through in his further reasoning?  If your Honours go back to 621, under the heading of “nature and extent” there is a careful analysis of the reach of the campaign, including 82:

a mass reach campaign using multiple advertising mediums to reach a very broad class of consumers . . . “hundreds of thousands, if not millions, of people.” . . . 

it was intended to have a substantial effect –

and this underpins his view this needs to be a sizeable penalty.  Loss and damage, could I deal with that next because the Full Court was critical of this part of the reasoning.  What the trial judge did was firstly to refer to the specific consumer complaints that I have been to – that is paragraph 87 – and he gave them some weight, but not overwhelming weight in terms of proof of damage.  But the critical damage he then turned to was had TPG drawn customers away from competitors through a misleading campaign, and you see in paragraph 88 the figures that I referred to.  It is an extraordinarily successful campaign in a year to increase the consumer base by a factor of 10.  He finds in 90:

It is clear . . . that potential customers were attracted to the Unlimited ADSL2+ service . . . that advertising contributed significantly to TPG’s sales . . . as a “call to action” –

He was alert to the point in paragraph 91 that it may be some people were won over by –

the attractiveness of the service itself rather than to the contravening advertisements –

He makes the obvious point you cannot unscramble the egg, but he is satisfied “that the advertisements played an important part”, and he then draws an inference consistent with the inferences courts draw in this area –

TPG would not have continued with its advertising campaign for 12 months –

in the form it did, spending $8.9 million –

unless it found it effective.

What he is referring to there is TPG decided to keep the campaign going in the form of the 29.99 offer found to be misleading.  The Court knows from page 581 that around the time of the interlocutory injunction, TPG considered changing to what would have been an unexceptional ad - “$59.99, home line rental included”.  That would have told the truth.  TPG made a deliberate decision for a year after that date not to go with that form.  It wanted the 29.99 ad, and the reason his Honour infers from that is they did it because they thought it would be effective, and accordingly it is appropriate to infer that the contravening advertisements, that is, in their contravening character, were likely to have reduced sales by competitors, impossible to work out how much, but that was a matter of significance in the assessment of penalty, so there is that factor.

At 98 he deals with the fact that the legal advice they had was not completely followed.  That is paragraph 104.  Then at 103, they knew there was a risk their conduct might constitute misleading conduct.  They had been required to give an undertaking.  The undertaking is a second point where the Full Court wrongly criticised the trial judge.  The point of the undertaking was not that because it was breached the penalty was raised.  The point was that it squarely put them on notice that this type of conduct was in a very difficult and possibly grey area and one they should be very careful about.  That is how he dealt with the undertaking at 108.

Now, can I come particularly to 113, because this is where deterrence came right back in.  His Honour looked at the size of TPG, “substantial but second tier”.  His Honour set out the revenue and the profits.  At 116, his Honour returned to Singtel Optus and formed the view that:

a penalty which did not substantially affect the profitability of Optus’ campaign could not reasonably be countenanced.

So he is looking at the substantial campaign, the profit, and we have got the figures in 118, it is at least $8 million in profit, 59 million in revenue:

This points to a need to impose a sizeable penalty so that TPG is not inclined to repeat the conduct.

You will not find a word in the Full Court’s decision even addressing this analysis of the trial judge.  There are further factors he carefully analyses, including the fact that it was directed by senior management – 121.  At 123, the corporate culture had fallen down, and so on.  So as a set of reasons consistent with the authorities, we would submit that betrayed no appealable error.  When one comes to the Full Court commencing at page 693, in the discussion of the authorities up to paragraph 144, deterrence gets a fairly slim run.  It gets a run in paragraph 143 that:

A penalty must not be so high as to be oppressive –

Then Justice Merkel is cited:

a penalty that is no greater than is necessary to achieve the object of general deterrence, will not be oppressive.

Now, what his Honour at trial is doing – and this is at paragraph 32 in the trial judgment – was not suggesting that consumers were simply a blank canvass, but rather engaging with the confusing wide array of options which meant that there was no starting assumption as to which option might in fact apply and in what is an entirely reasonable and appropriate analysis says the advertisement should speak to the consumer in an informative way as to what is the service that the consumer is about to acquire.

The fundamental point of the ACCC’s case is that the advertisement works in tension with the price promoted, advertised, clearly apparent from the advertising, and what in fact was the real price.  His Honour basically said the advertising should be entitled to be seen to speak for itself and, in rejecting this approach and imputing knowledge without a proper foundation and analysis, we say that the Full Court has basically done nothing to deter the court from adopting and accepting the analysis which we see in paragraph 32.

Your Honour’s there was comment about the consumer response of Mr McFadyen, if I could just deal with this very briefly, as I do not think it was fully set out for your Honours as to what McFadyen was saying.  This is at page 424.  Mr McFadyen was there saying, in the passage that followed from what my friend was reading from:

I thought it was strange when i saw you advertising on my local bus –

that was the triggering interest –

i thought to myself is this what i have got?  please tell me im wrong and it is 29.99 -0

He had honestly formed a view that the advertising was 29.99 and he sought to have a recording sent to him of the phone call he had had.  But, clearly enough, he is engaged with some sales person or someone on the telephone has received the product in line with the 29.99 understanding which he thought had been confirmed by what he saw on the bus. 

There is no doubt that the advertising triggered that error that McFadyen brought to the exercise.  As a consequence, we think this is a legitimate example of the potentiality – the real one – for consumer error to be the consequence of this split‑price advertising which basically headlines one price but invites the consumer ultimately to pay a different price.  If your Honours please, they are the submissions in reply.

KEANE J:   Before you sit down, paragraph 12 of the respondent’s outline of oral submissions.  What do you say about the suggestion that the appeal to the Full Court has not yet been fully determined?

MR GOLVAN:   Your Honours, the Full Court’s orders are those at page 730.  What we say has occurred is that the Full Court has determined the entirety of the matter as before it as not indicated by anything that remains – anything ordered remains anything further for it to decide.

In other words, the respondent was making the point that the matters upon which it was submitting before the Full Court have not, each one of them, been fully determined and we say the court has pronounced final orders.

KEANE J:   So you do not accept the course that Mr O’Bryan proposed?

MR GOLVAN:   No.  No, your Honour, and indeed we treat these orders as being final and complete.  There is no notice of contention before your Honours as to that matter or cross‑appeal and indeed we have submitted in our reply to this effect in paragraph 16.  If your Honours please.

FRENCH CJ:   Thank you, Mr Golvan.  The Court will reserve its decision.  The Court adjourns until 10.15 am, Tuesday, 5 November 2013.

AT 12.40 PM THE MATTER WAS ADJOURNED