Telstra Corporation Ltd v Singtel Optus Pty Ltd - [2018] VSC 247

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2018 00097

TELSTRA CORPORATION LTD	Plaintiff
v
SINGTEL OPTUS PTY LTD	Defendant

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JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2018
DATE OF JUDGMENT:	16 May 2018
CASE MAY BE CITED AS:	Telstra Corporation Ltd v Singtel Optus Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 247

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CONSUMER LAW – Misleading or deceptive conduct – False or misleading representations – Relevant legal principles – Billboard and internet advertisements – Alleged representations as to quality of parties’ respective mobile networks – Whether representations conveyed – Whether representations likely to mislead or deceive, or false or misleading to hypothetical ordinary or reasonable person within that class – Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law ss 18, 29(1)(b), (g).

INJUNCTION – Interlocutory – Principles to be applied – Serious question to be tried – Irreparable damage – Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr M J Collins QC Ms M J Marcus	King & Wood Mallesons
For the Defendant	Mr N J Young QC Mr N P de Young	Clayton Utz

TABLE OF CONTENTS

Introduction.......................................................................................................................... 1
The advertisement............................................................................................................... 3
The initial advertisement.................................................................................................... 4
The 2013 P3 Report.............................................................................................................. 5
The case put by Telstra....................................................................................................... 6
The response from Optus................................................................................................... 8
Relevant principles: interlocutory injunctions................................................................ 8
Is there a serious question to be tried?........................................................................... 10
Irreparable injury............................................................................................................... 14
The balance of convenience.............................................................................................. 15
Conclusion.......................................................................................................................... 16
Orders.................................................................................................................................. 17

HIS HONOUR:

Introduction

Since 4 May 2018, the defendant, Singtel Optus Pty Ltd (‘Optus’) has extensively displayed a pictorial advertisement promoting its mobile network. The advertisement has appeared on large-format digital billboards at several sites in Queensland, New South Wales, and Victoria.[1] The advertisement has also appeared as ‘online banner ads’ on various online news websites.[2] Telstra Corporation Ltd (‘Telstra’) alleges that the advertisement is misleading and deceptive and seeks an interlocutory injunction to restrain its public display.[3]
[1]Affidavit of Jeremy Anthony Nicholas, affirmed 9 May 2018, [12], [18] (‘Nicholas Affidavit’).
[2]Nicholas Affidavit, [18].
[3]By summons dated 9 May 2018, Telstra seeks interlocutory relief in the form of injunctions against Optus and its officers, employees and agents. Telstra seeks injunctions restraining Optus from making the alleged representation, and directing Optus to take all necessary steps to remove from circulation or public view any advertisements or promotional material containing the alleged representation.

Telstra alleges that the advertisement represents that:[4]

there has been a significant and permanent change in the relationship between the Telstra and Optus mobile networks with Optus now undisputedly operating a better mobile network overall than Telstra.

[4]Telstra, Statement of Claim, 9 May 2018, [7]; Telstra, ‘Plaintiff’s Outline of Submissions’, 10 May 2018, [13(b)].

Immediately below is a copy of the advertisement.

Optus opposes the interlocutory relief sought by Telstra. Optus submits that the Court should refuse Telstra’s application on the basis that there is no tenable argument that the advertisement conveyed the alleged representation to the reasonable consumer.

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.

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Details

Case: [2018] VSC 247
Decision Date: 16 May 2018

CaseChat Overview and Summary

The Federal Court of Australia was tasked with addressing a dispute between Telstra Corporation Ltd and Singtel Optus Pty Ltd, which arose from allegations of misleading or deceptive conduct concerning the quality of their mobile networks. Telstra alleged that Singtel Optus had engaged in false or misleading advertising through billboard and internet advertisements that suggested their network was superior to Telstra’s, leading consumers to make purchasing decisions based on these representations. The court had to determine whether these advertisements conveyed the alleged representations and whether they were likely to mislead or deceive a hypothetical ordinary or reasonable person within the relevant class, in accordance with the Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law sections 18, 29(1)(b), and (g).

The primary legal issue before the court was whether Singtel Optus’ advertisements constituted misleading or deceptive conduct under the Australian Consumer Law. This involved assessing whether the advertisements conveyed specific representations regarding the quality of the mobile networks and if these representations were likely to mislead or deceive the relevant class of consumers. The court considered whether the advertisements were false or misleading to a hypothetical ordinary or reasonable person within that class, applying relevant legal principles to interpret the advertisements.

In its reasoning, the court found that the advertisements did not clearly convey the alleged representations, and even if they did, they were not likely to mislead or deceive a hypothetical ordinary or reasonable person within the relevant class. The court held that the advertisements did not provide enough specific information about network quality to mislead consumers and that the hypothetical reasonable person would not have been misled by the general claims made. Consequently, the court dismissed Telstra’s claims, finding no basis for the requested injunctions.

The court's final orders were to dismiss the proceedings brought by Telstra against Singtel Optus, with no orders for costs. The decision underscores the importance of clear and specific representations in advertising to avoid misleading consumers, and highlights the stringent requirements for proving misleading or deceptive conduct under consumer law.

Orders