Australian Competition and Consumer Commission v TPG Internet Pty Ltd

The High Court of Australia heard an appeal from the Full Court of the Federal Court concerning alleged breaches of the Trade Practices Act 1974 (Cth) and the Australian Consumer Law by TPG Internet Pty Ltd. The Australian Competition and Consumer Commission (ACCC) alleged that TPG's advertisements, particularly those promoting unlimited ADSL2+ internet for $29.99 per month, were misleading or deceptive. The core of the dispute revolved around whether these advertisements conveyed the impression that the advertised price was the sole cost and that no additional services, such as a telephone service, were required.

The legal issues before the High Court included whether the Full Court had correctly applied the "dominant message" approach to assessing misleading or deceptive conduct. Specifically, the Court had to determine whether an ordinary and reasonable consumer would have a starting assumption that the advertised internet service was bundled with a telephony service, and whether consumers were required to consider the entirety of an advertisement, including less prominent details, to correct an otherwise misleading headline representation. The High Court also considered whether the Full Court had adequately addressed specific and general deterrence in its assessment of pecuniary penalties.

The High Court allowed the appeal, finding that the primary judge's approach to assessing the advertisements was flawed. The Court held that the ordinary or reasonable consumer would not necessarily assume that the advertised internet service was bundled with telephony. Crucially, the High Court determined that consumers are expected to consider the whole of an advertisement, including details presented in smaller print or spoken quickly, to form a complete understanding of the offer. The Court found that the balance of the advertisements, which contained information about the bundling requirement, was not given insufficient prominence to counter the headline claim. Consequently, the High Court set aside the orders of the Full Court and reinstated certain orders of the primary judge, with modifications.