The Full Court, in coming to its conclusions, applied as a precedent the ratio in a case called Parkdale Custom Built Furniture v Puxu ("Puxu"). The High Court said that the Full Court wrongly applied the precedent in Puxu. Explain in what ways the High Court thought the advertising in Puxu was different from the TPG advertising and so should not have been used by the Full Court as a precedent.
What did the High Court say about the assumed level of knowledge in TPG's target audience? To avoid confusion about the roles played by the various courts which heard this dispute I provide these additional notes
The sequence of court hearings
- The Australian Competition and Consumer Commission (ACCC) brought proceedings against internet provider TPG because of an advertising campaign for internet services TPG had been conducting.
- Initially, the proceedings were heard by a single judge, who is referred to in the judgment as "the primary judge". ACCC was largely successful against TPG in those proceedings.
- TPG, having lost the case before the primary judge, appealed to three judges, referred to in the judgment as the "Full Court". That court largely disagreed with the conclusions of the primary judge and set aside his decision. In effect, TPG won its appeal to the Full Court.
- This left ACCC as the loser. It appealed to the High Court, which disagreed with the conclusions of the Full Court in favour of TPG and essentially reinstated the decision made by the primary charge in favour of ACCC.
The judgment you are reading, and to which the assignment questions relate, is the judgment of the High Court only. However, to enable the "ratio" of its decision to be understood, the High Court includes in its judgment summaries of the reasons which the primary judge and the Full Court each gave in coming to their respective (and contradictory) decisions.
You must express your answer in your own words and to enable the tutors marking the assignments to be sure that you have done this you should state, in brackets at the end of your answers to each question, the paragraph numbers from the judgment you have referred to in preparing your answer.
I encourage you to express answers in either numbered or bullet point form rather than long paragraphs
Word limit is about 1200 words
1 Briefly describe the nature of TPG's advertising which ACCC considered to be defective
2 What statutory provisions did ACCC allege that TPG's advertising contravened
3 What were the findings (conclusions) of the primary judge about the following aspects of the advertising - bundling
- the set up fee
- single price
4 What were the differences between the approach of the Full Court and the approach of the primary judge in evaluating whether the TPG advertising was misleading?
5 The High Court concluded that the approach taken by the Full Court was not correct. For what reason or reasons did the High Court come to this conclusion?
6 The Full Court, in coming to its conclusions, applied as a precedent the ratio in a case called Parkdale Custom Built Furniture v Puxu ("Puxu"). The High Court said that the Full Court wrongly applied the precedent in Puxu. Explain in what ways the High Court thought the advertising in Puxu was different from the TPG advertising and so should not have been used by the Full Court as a precedent.
7 What did the High Court say about the assumed level of knowledge in TPG's target audience?
8 Is an intention to mislead essential for advertising to be misleading?
9 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 of the advertising, based on your understanding of the High Court's ruling in ACCC v TPG?