Trade Practices Commission v Optus Communications Pty Ltd & anor [1995] FCA 733

Trade Practices Commission v Optus Communications Pty Ltd & anor [1995] FCA 733

The Commission made out a sufficient interlocutory case for relief beyond the undertakings because the advertisement’s limited superscript disclosure did not adequately alert potential customers that the free local weekend calls offer excluded calls to mobile phones, and test calls showed that Optus representatives were making statements about the product without mentioning that exclusion. The Court therefore accepted the undertakings but ordered simpler, direct notices and disclosure requirements for dealings with actual or potential customers.

Jurisdiction
Australia
Judgment Date
30 June 1995
Procedural Posture
Application Alleging Breach of the Trade Practices Act Arising From Advertising of Optus Free Style Mobile Phones / Interlocutory Motion for Orders in Addition to Undertakings; Application and Statement of Claim Stood Over
Outcome
Undertakings accepted; additional orders made; application and statement of claim stood over to 17 July 1995 at 9.30; costs of the motion reserved.
Legal Topics
['misleading and Deceptive Advertising' 'mobile Phone Plan Exclusions' 'free Local Weekend Calls Offer' 'interlocutory Relief' 'undertakings to the Court']
['trade Practices' 'consumer Protection' 'advertising' 'injunctions'] ['misleading and Deceptive Advertising' 'mobile Phone Plan Exclusions' 'free Local Weekend Calls Offer' 'interlocutory Relief' 'undertakings to the Court']

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Procedural Posture

Application Alleging Breach of the Trade Practices Act Arising From Advertising of Optus Free Style Mobile Phones / Interlocutory Motion for Orders in Addition to Undertakings; Application and Statement of Claim Stood Over

Legal Issues

  1. 1 ['Whether advertising for the Optus Free Style phone offering free local weekend calls sufficiently disclosed that calls to mobile phones were excluded.' 'Whether the undertakings offered by the respondents were sufficient or whether additional orders were warranted.' 'What form of notice and directions should be given to employees, dealers and retail outlets.']

Ratio Decidendi

The Commission made out a sufficient interlocutory case for relief beyond the undertakings because the advertisement’s limited superscript disclosure did not adequately alert potential customers that the free local weekend calls offer excluded calls to mobile phones, and test calls showed that Optus representatives were making statements about the product without mentioning that exclusion. The Court therefore accepted the undertakings but ordered simpler, direct notices and disclosure requirements for dealings with actual or potential customers.

Court Disposition

Undertakings accepted; additional orders made; application and statement of claim stood over to 17 July 1995 at 9.30; costs of the motion reserved.

Orders

  • ['Effective from the end of business on Tuesday 4 July 1995, the respondents by themselves or their servants, when dealing with or receiving inquiries from actual or potential customers for the Optus freestyle mobile phone, must inform such persons that the features of the Optus freestyle plan, such as offers of...