The questions to be answered

The case study is worth a total of 20 marks. 18 marks can be earned for the content (ie, correctness) of the answers to the questions asked [as shown in brackets after each question]. The remaining two marks will be awarded depending upon how well the answers which are presented follow the above instructions and how accurately the cover sheet is completed.

You should be aware from the judgment you have read that the following sequence occurred in the courts:

· The ACCC brought proceedings against TPG

· At the first hearing (before a single judge, called the “’primary” judge ACCC was largely successful.

· TPC appealed to (what is called) the Full Court (three judges) and was largely successful in reversing the outcome before the primary judge

· The ACCC appealed against that decision to the High Court of Australia. It is the decision of that court which you have read (although contained within it is a summary of what the earlier courts decided).

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 sectionsof 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]

· bundling(who did the judge believe would be the “target audience” and what was it about the advertising which could mislead that audience?) [1 mark]

· the set-up fee (in what way was the advertising capable of misleading consumers about this?) [1 mark]

· single price (in what way was this aspect in breach of the statute?) [1 mark]

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 Puxuand 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]

John Lanser