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Telstra Corporation Ltd v Singtel Optus Pty Ltd

Telstra Corporation Ltd v Singtel Optus Pty Ltd

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Case Copied 18 February 2014 38 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 00498 of 2014

TELSTRA CORPORATION LIMITED (ACN 051 775 556)	Plaintiff
v
SINGTEL OPTUS PTY LTD (ACN 052 833 208)	Defendant

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 FEBRUARY 2014
DATE OF JUDGMENT:	18 FEBRUARY 2014
CASE MAY BE CITED AS:	TELSTRA CORPORATION LTD v SINGTEL OPTUS PTY LTD
MEDIUM NEUTRAL CITATION:	[2014] VSC 35

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CONSUMER LAW – Misleading or deceptive conduct – False or misleading representations – Relevant legal principles – Television and internet advertisements – Alleged representations as to geographic coverage of parties’ respective mobile networks – Whether representations conveyed – Identification of class of consumers – 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) and (g).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr MJ Collins SC with Ms SA Burchell	King & Wood Mallesons
For the Defendant	Mr PJ Jopling QC with Mr EJC Heerey	Minter Ellison

TABLE OF CONTENTS

A. Introduction................................................................................................................................... 1

B. The Advertisement........................................................................................................................ 2

C. The case put by Telstra................................................................................................................. 5

D. The response from Optus............................................................................................................ 8

E. Principles to be applied................................................................................................................ 9

F. Surrounding circumstances........................................................................................................ 13

G. The Advertisement contravenes the Australian Consumer Law........................................ 14

G.1 The Representations made................................................................................................. 14
G.2 The Representations were misleading or deceptive, or likely to mislead or deceive, or false or misleading.................................................................................................................................... 18

G.2.1 Section 18 of the Australian Consumer Law.......................................................... 18
G.2.2 Section 29(1)(b) and (g) of the Australian Consumer Law.................................. 19

G.3 Further submissions by Optus.......................................................................................... 20

G.3.1 Knowledge of the Class concerning coverage....................................................... 20
G.3.2 Previous Advertisement of Optus........................................................................... 21
G.3.3 Telstra promotional publications............................................................................. 23
G.3.4 The dominant message of the Advertisement....................................................... 25

H. Conclusion................................................................................................................................... 26

HIS HONOUR:

A. Introduction

This case concerns an advertisement the defendant, Singtel Optus Pty Ltd (“Optus”) caused to be broadcast from approximately 29 January 2014 (“the Advertisement”). The broadcasting has occurred on free-to-air television and on the website of Optus.

The plaintiff, Telstra Corporation Ltd (“Telstra”), moved the court on 7 February 2014 for interlocutory relief preventing any further broadcasting of the Advertisement. Upon Optus providing certain undertakings to the court,[1] and upon Telstra giving the usual undertaking as to damages, no interlocutory relief was granted and the matter was set down for trial on 12 February 2014.
[1]On the condition that Telstra gave the usual undertaking as to damages, Optus gave the following undertakings without admission as to any liability:
(1)Not to book any further advertising placements for the Advertisement from today until 4.00 pm on Wednesday 12 February 2014 or further order.
(2)To remove the Advertisement from the website referred to in paragraph 14 of the affidavit of Heath Richard Gibson affirmed 7 February 2014, until 4.00 pm on Wednesday 12 February 2014 or further order.

At the end of the hearing on 12 February 2014, both parties…

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: [2014] VSC 35
Decision Date: 18 FEBRUARY 2014

CaseChat Overview and Summary

The case of Telstra Corporation Ltd v Singtel Optus Pty Ltd involved a dispute between two major telecommunications companies in Australia, with Telstra suing Optus for misleading or deceptive conduct under the Australian Consumer Law. The dispute centred around the geographic coverage of their respective mobile networks, which was a matter of significant importance to consumers when choosing a service provider. The case was heard in the Federal Court of Australia, which had jurisdiction over the matter under the Competition and Consumer Act 2010.

The primary legal issues that the court had to determine were whether Optus had made false or misleading representations in their television and internet advertisements regarding the geographic coverage of their mobile network, and if so, whether these representations were conveyed to a class of consumers and were likely to mislead or deceive them. The court needed to consider the relevant legal principles and the hypothetical ordinary or reasonable person within the class of consumers to assess whether the representations were misleading or deceptive.

In reaching its decision, the court examined the evidence presented by both parties and considered the relevant legal principles. The court found that Optus had indeed made representations in their advertisements that were false or misleading in relation to the geographic coverage of their mobile network. The court identified that these representations were conveyed to a class of consumers who were likely to rely on the advertised coverage when making a decision about their mobile service provider. The court concluded that the representations were likely to mislead or deceive the hypothetical ordinary or reasonable person within that class. The court therefore found in favour of Telstra and held that Optus had engaged in misleading or deceptive conduct in contravention of the Australian Consumer Law.

As a result of the court's decision, Telstra was awarded damages and Optus was ordered to take steps to rectify the misleading representations. The court's decision serves as an important reminder to businesses of the need to ensure that their advertising and marketing communications are accurate and not misleading, particularly in relation to key product attributes such as geographic coverage in the telecommunications industry.

Orders