Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106

Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106

Optus made false and misleading representations to non-consenting customers by charging them for DCB content they had not agreed to acquire, in contravention of section 12DB(1)(b) of the ASIC Act. Given the seriousness, scope, and deliberate nature of the conduct, and mitigated by cooperation, refunds, and termination of the service, a pecuniary penalty of $10 million and orders for refunds and costs are appropriate.

Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Civil Penalty Proceeding / Final Judgment and Orders
Outcome
Declaration of contravention; pecuniary penalty imposed; costs awarded; consumer refund program ordered.
Legal Topics
['false and Misleading Representation' 'financial Services' 'direct Carrier Billing' 'civil Penalty' 'refund Program' 'corporate Compliance' 'deterrence']
['consumer Law' 'corporations Law'] ['false and Misleading Representation' 'financial Services' 'direct Carrier Billing' 'civil Penalty' 'refund Program' 'corporate Compliance' 'deterrence']

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Procedural Posture

Civil Penalty Proceeding / Final Judgment and Orders

Legal Issues

  1. 1 ['Whether Optus made false and misleading representations to customers in contravention of section 12DB(1)(b) of the ASIC Act' 'Appropriate quantum of pecuniary penalty for contraventions' 'Suitability of agreed declaration and orders—including consumer refund program']

Ratio Decidendi

Optus made false and misleading representations to non-consenting customers by charging them for DCB content they had not agreed to acquire, in contravention of section 12DB(1)(b) of the ASIC Act. Given the seriousness, scope, and deliberate nature of the conduct, and mitigated by cooperation, refunds, and termination of the service, a pecuniary penalty of $10 million and orders for refunds and costs are appropriate.

Court Disposition

Declaration of contravention; pecuniary penalty imposed; costs awarded; consumer refund program ordered.

Orders

  • ['Optus to pay $10,000,000 pecuniary penalty to Commonwealth of Australia within 14 days.' "Optus to pay applicants' costs of and incidental to the proceeding, to be taxed if not agreed." 'Applicants granted liberty to restore proceedings until 7 August 2020 if any issue arises in consumer refund program...