As we reported in January 2013, the ACCC was left a few cards short following TPG’s successful appeal of Justice Murphy’s first instance findings, with the Full Federal Court holding that only TPG’s first television advertisement was apt to mislead consumers.
Although the appeal judgment intimated that a penalty in the vicinity of $500 000 would be more proportionate to the breach, than the $2 million initially imposed, it gave TPG and the ACCC the opportunity to call it a draw and reach an agreement as to penalty.
Now, the ACCC’s decision to call the Full Federal Court’s bluff has left it worse for wear, with the Court slashing the penalty payable by TPG for its contravention to a mere $50 000 and ordering the ACCC to pay 75% of TPG’s trial and appeal costs.
This marks a decisive blow for the ACCC, which regarded the first instance decision of Justice Murphy as the fruition of its “hard line” approach to telecommunications industry compliance.
It will be interesting to see whether the ACCC stands by its ‘all in’ decision, having already lodged an application for special leave to appeal to the High Court, or whether the watchdog decides to call it a day.
