You should be aware from the judgment you have read that the following sequence occurred in the courts:
Question 1
There were three problems with TPG’s advertising which the ACCC considered to be misleading; state briefly what those three were [3 marks]
Question 2
The ACCC alleged that TPG’s advertising contravened two STATUTORY provisions; what were those statutory provisions (ie, which sections of which Act) and what did the ACCC say about the advertisements which contravened each of those provisions [4 marks – 1 each for identifying each of the two statutory provisions and 1 each for stating how the advertisements contravened that provision]
Question 3
What were the findings (conclusions) of the primary judge about each of the following aspects of the advertising? In your answer, consider the matters suggested in italics [3 marks total 1 for each of the following]
Question 4
The Full Court came to two important different conclusions from those of the primary judge when deciding whether the TPG advertising was misleading? What were those two different conclusions [2 marks]
Question 5
The High Court decided that the conclusions of the Full Court were not correct. For what two reasons did the High Court differ from the Full Court’s reasoning? [2 marks]
Question 6
The Full Court, in coming to its conclusions, applied as a precedent the ratio from an earlier case called Parkdale Custom Built Furniture v Puxu (“Puxu”). The High Court said that the Full Court should not have applied (ie, the Full Court should have “distinguished”) the principle in Puxu and it gave three reasons for this. Briefly explain any two of the reasons the High Court said made the Puxu case different from the TPG advertising. [2 marks]
Question 7
If you were employed in the marketing section of an internet service provider or a fitness centre which was about to launch an advertising campaign promoting an attractive “plan” for membership in which there were several “parts” (costs and benefits) to be taken into account by potential customers, what advice would you give about the form the advertising should take, based on your understanding of the High Court’s ruling in ACCC v TPG? [2 marks]
Question 1
The three issues with the TPG’s advertising included:
Question 2
The Australian Competition and Consumer Commission (ACCC) alleged that the TPG Internet violated s 53C(1)(c) of TPA because of failing to prominently identify all about broadband internet and services and stating a single price for the package (Humphery, Smart & Crawford, 2010). The provisions of section 53C(1) (c) of the Act 1974 states that a corporation involved in a the promotion by means of supplying goods and services to an individual need to state in a noticeable manner and as a single figure of the value of what is offered (Round & Shanahan, 2012). Because of the breach of this section, the justice also held that the singled price that was to be $509.89 was not revealed in a prominent manner in the newspaper, internet, and television advertisements. Moreover, in another ruling the primary justice gave orders for the restrictions, corrective advertising, pecuniary punishments, costs and the execution of a submission program by TPG. Under the pecuniary penalties, the primary judge ordered TPG to pay $2 million
ACCC also alleged that TPG violated section 52 of the TPA by making varying prices of the same item in various advertising Medias; hence misleading consumers. Section 52 of the TPA prohibits companies from engaging deceptive or misleading conduct in trade (North & Flitcroft, 2016). TPG also failed to show the total amount of the package, and instead only showed a portion of the entire price required for the entire package. The Full Court was wrong by not appreciating that the continual advertisements of the TPG in misleading customers was not defused by the Full Court’s acknowledgement of awareness to customers that the broadband internet services might get offered as a bundle.
Question 3
Question 4
The two important conclusions from the Full Court were that:
Question 5
The two reasons why the High Court found that the final judgment of the Full Court was that:
Question 6
The two reasons why the Full Court should not have applied Parkdale Custom Built Furniture v Puxu as a precedent in its conclusion was that:
Question 7
If I happened to be a part of the promotion team of an internet service provider or a fitness center planning to inaugurate an advertising campaign for a good-looking membership plan with several costs and benefits to be considered by esteemed customers, I would advocate for the best form of advertising. For instance, I would advise the team to have an advert that emphasizes on all the costs that would be involved in case the service or product has several parts with different costs and benefits (Healey, 2015). The advert is obliged to target the customers based on the assumption that people are likely to ignore some parts of the advertisements. As a result of this, it is important to put the products together and produce one single amount or even precisely indicate the price of each part to the target audience. This is particularly important because it will help the customers know what they will be purchasing, as well as, their actual prices.
Daly, A, & Scardamaglia, A 2017, 'Profiling the Australian Google Consumer: Implications of Search Engine Practices for Consumer Law and Policy', Journal of Consumer Policy, vol. 40, no. 3, pp. 299-320.
Healey, J 2015, Advertising Standards and Ethics, The Spinney Press, Thirroul, NSW, vol. 394, no.1, P.7-17.
Humphery, K, Smart, J, & Crawford, R 2010, Consumer Australia : Historical Perspectives, Cambridge Scholars Publishing, Newcastle, vol. 13, no.6, p. 97-119.
Kwok, JT 2016, 'Audit Office confirms Govt adverts were false & misleading', Advocate: Newsletter of the National Tertiary Education Union, vol. 23, no. 3, p. 9.
Morrison, A, Abraham, R, & Sheargold, M 2010, 'Antipodean Alignment: Impact of the Proposed Australian Consumer Law', Defense Counsel Journal, vol. 77, no. 3, pp. 353-365.
North, J, & Flitcroft, R 2016, 'Businesses beware -- when does the Australian Consumer Law apply?', Governance Directions, vol. 68, no. 5, pp. 306-309.
Paterson, J, & Brody, G 2015, ''Safety Net' Consumer Protection: Using Prohibitions on Unfair and Unconscionable Conduct to Respond to Predatory Business Models', Journal of Consumer Policy, vol. 38, no. 3, pp. 331-355.
Round, K, & Shanahan, MP 2012, 'From Protection to Competition: The Politics of Trade Practices Reform in Australia and the Trade Practices Act 1965', Australian Journal of Politics & History, vol. 58, no. 4, pp. 497-511.
Shanahan, MP, & Round, K 2014, 'Transforming Australian business attitudes to competition: Responses to the Trade Practices Act 1965', Business History, vol. 56, no. 3, pp. 434-455.
Svantesson, D, & Clarke, R 2013, 'The Trade Practices Act: A Hard Act To Follow? Online Consumers And The New Australian Consumer Law Landscape', James Cook University Law Review, vol. 20, pp. 85-116.
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