Global One Mobile Entertainment Pty Ltd v Australian Competition and Consumer Commission

Global One Mobile Entertainment Pty Ltd and 6G Mobile Services Pty Ltd (the appellants) appealed against a decision by the Federal Court that they had contravened certain consumer protection provisions in the Trade Practices Act 1974 (Cth) by causing advertisements to be published in relation to mobile telephone premium content services. The Australian Competition and Consumer Commission (ACCC) brought proceedings against the appellants, alleging that the advertisements were misleading and that the appellants had engaged in conduct that contravened sections 52, 53(aa), 53(c) and 53(e) of the Act, particularly sections 52 and 53(e). The appellants contested the ACCC's claims, and the primary judge found in favour of the ACCC, ordering the appellants to pay pecuniary penalties.

The court had to determine whether the appellants' conduct in causing the advertisements to be published involved a contravention of the consumer protection provisions of the Trade Practices Act. The court also had to consider the principles to be applied in determining the amount of a pecuniary penalty. The court had to consider the approach to be adopted in evaluating whether each advertisement engaged a contravention of the relevant sections and the tests to be applied in making that evaluation derived from the authorities. The court had to determine the amount of a pecuniary penalty, considering the appellants' financial position and whether they had derived any profit from the subscriptions from consumers.

The court found that the appellants had contravened sections 52 and 53(e) of the Trade Practices Act by causing the advertisements to be published. The court found that the appellants had engaged in conduct that was likely to mislead consumers into believing that they had expressly requested to receive premium content services when they had not. The court found that the appellants had not derived any profit from the subscriptions from consumers. The court found that the appellants' financial position was relevant to the assessment of the penalty, but it was not an answer to the imposition of a penalty. The court found that the appellants had cooperated with the ACCC and that there was no evidence that they had engaged in similar conduct in the past. The court found that the appellants had generated revenue in response to the advertisements but that no consumer had suffered any loss or damage by reason of the appellants' conduct. The court found that the amount of any loss or damage caused by the contravening conduct could not be quantified.

The court dismissed the appeal and ordered the appellants to pay the costs of the ACCC of and incidental to the appeal. The court ordered that the costs be paid within 28 days of the date of the judgment. The orders were made under Rule 39.32 of the Federal Court Rules 2011.