FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369

REASONS FOR JUDGMENT

Introduction

1    The respondent, AGL South Australia Pty Ltd (AGL) is a retailer of electricity to residential consumers in South Australia. It is the largest such retailer, supplying approximately 50% of the residential market.

2    The Australian Competition Consumer Commission (ACCC) alleges that, on separate occasions in 2012 and 2013, AGL engaged in misleading or deceptive conduct, or made false or misleading statements, in respect of discounts from its charges for the electricity supplied to residential customers. The misleading statements are said to have been made when AGL notified certain customers of rate increases. The misleading or deceptive conduct is said, in part, to have occurred by AGL’s omission to inform those consumers of particular information relating to the rate increases.

3    Essentially, the ACCC case is that, having induced residential consumers in 2012 to contract with it for the supply for their electricity on the basis that they would receive discounts, AGL increased the rates applicable to those particular consumers with the consequence that the effect of the discounts was reduced or eliminated. It contends that AGL misrepresented the true position to consumers when informing them in mid-2012 of the rate increases which had these effects by telling them that they would continue to receive the agreed discounts and in mid-2013 by not informing them that there had been any change.

4    The ACCC seeks declarations that AGL contravened ss 18(1) and 29(1)(g) and (i) of the Australian Consumer Law (ACL) contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CC Act). In addition, the ACCC seeks the imposition of penalties, the grant of injunctions and other relief. This judgment concerns the claim for declarations as I directed that those claims be heard and determined in advance of the remaining claims.

5    The evidence in the trial was entirely documentary. The ACCC tendered some 28 documents, many of which it had obtained from AGL pursuant to s 155 of the CC Act, and relied on several facts which it had agreed with AGL. AGL relied on affidavits from seven witnesses as well as other documentary material. None of the witnesses was required for cross-examination.

6    For the reasons which follow, I uphold the ACCC’s claim in relation to the statements made by AGL in mid-2012. However, I am not satisfied that the mid-2013 statements were misleading or deceptive. I also reject the ACCC’s allegations that AGL engaged in misleading or deceptive conduct by omitting to disclose certain information to its customers at the time of the mid-2012 and mid-2013 rate increases.

7    In order to provide the context to ACCC’s claims, I record some matters which were uncontentious.

Market and Standing Contracts

8    Until 1 February 2013, the supply of electricity to residential consumers in South Australia was regulated by the Essential Services Commission of South Australia (ESCOSA) under the Essential Services Commission Act 2002 (SA) (the ESC Act). Consumers were able to choose their retailer but ESCOSA regulated both the price at which electricity could be sold and the terms of the contracts between the retailers and consumers.

9    Retailers supplied electricity under two forms of contract: standing contracts and market contracts. Under standing contracts the price was that fixed from time to time by ESCOSA and the contract terms and conditions were those set out in the Energy Retail Code (ERC) published by ESCOSA under s 28 of the ESC Act.

10    Market contracts, on the other hand, were required to have the minimum terms and conditions set out in the ERC but could also include other terms and conditions agreed between the retailer and the consumer. ESCOSA did not fix the price of electricity under market contracts.

11    The South Australian Government deregulated the supply of electricity to residential consumers with effect from 1 February 2013. There had been an earlier form of deregulation in 2003 with the introduction of Full Retail Contestability. Since 1 February 2013, retailers in South Australia have been able to supply electricity to residential consumers by standard retail contracts and market retail contracts. Standard retail contracts have the standard terms and conditions as set out in the National Energy Retail Rules made pursuant to Pt 10 of the National Energy Retail Law (which is Schedule 10 to the National Energy Retail Law (South Australia) Act 2011 (SA). The rates under these are set by the retailers (subject to some qualifications which are not presently material). By s 22 of the National Energy Retail Law, all retailers are obliged to offer a standard retail contract and, by s 23, to publish their standing offer prices on their websites. A retailer may be nominated as a “designated retailer” for the supply of electricity in defined areas. A designated retailer is obliged, amongst other things, to offer to supply electricity to small customers at the retailer’s standing price and on the terms of the retailer’s standard retail contract.

12    Market retail contracts must have the minimum terms and conditions set out in the National Energy Retail Rules but other terms and conditions may vary from contract to contract.

13    During 2012, and before the deregulation which came into effect on 1 February 2013, AGL supplied electricity to residential consumers in South Australia pursuant to both standing contracts and market contracts. Its standing contracts were in the terms of the contract forming part of the ERC and the single set of rates which it charged for electricity under those contracts was that fixed from time to time by ESCOSA.

14    Since the deregulation which came into effect on 1 February 2013, AGL has continued to supply electricity to residential consumers under both standing and market contracts. Its standard retail contracts have contained the minimum terms required by the National Energy Retail Rules but AGL itself has determined the price of electricity supplied under those contracts. Except when it is necessary to make the distinction, I will use the abbreviation “SRC” to refer to both AGL’s standing contracts and its standard retail contracts.

15    AGL is a “designated retailer” for the whole of South Australia.

16    In 2013 AGL commenced two categories of rates in its SRCs: the rates applicable to those SRCs which commenced on or before 31 January 2013 (the Lower SRC Rates), and higher rates which were applicable to those SRCs which commenced on or after 1 February 2013 (the Higher SRC Rates) (collectively, the 2013 SRC Rates). The Lower SCR Rates and the Higher SCR Rates were approximately 9.1% and 4.5% respectively less than AGL’s then current standing contract rates and, by agreement with the South Australian Government, AGL agreed (subject to some qualifications) to maintain those rates for a period of two years. AGL and the South Australian Government agreed on these reductions as part of the decision of the latter to deregulate electricity prices with effect from 1 February 2013. Both the deregulation and AGL’s reduction in SCR rates were the subject of publicity in December 2012 and January 2013.

17    Before 1 February 2013, AGL’s market contracts contained the minimum terms and conditions required by ESCOSA and as set out in the ERC, but had other terms and conditions which could vary from contract to contract. The rates under its market contracts were not fixed by ESCOSA. Since deregulation on 1 February 2013, AGL’s market contracts have contained the prescribed minimum terms and other conditions which may vary from contract to contract.

18    The number of consumers on SRCs has been declining. Presently, about 20% of all residential customers continue on SRCs with AGL. About 30% of all residential consumers have market contracts with AGL.

19    The calculation of the amount which AGL charges consumers on market contracts for electricity usage varies according to three principal factors:

(a)    The rates (being the price per unit of electricity (c/kWh)) charged by AGL for the consumer’s electricity usage. Those rates generally increase on a graduated scale (tariff steps) as the consumer’s usage increases. This case does not concern the manner of determination of those rates.

(b)    The customer’s usage of electricity at the various steps.

(c)    The percentage discount, if any, to which the consumer is entitled from the product of (a) and (b).

In the case of SRCs, the amount charged to the consumer is the product of (a) and (b) as AGL does not offer discounts in those contracts.

20    AGL has developed several different categories of rates which govern the amount charged in a given consumer’s case. As at December 2012, it had some 17 rate categories although six of these applied only to residential premises of an atypical kind. The rates in several of the remaining categories were identical. AGL determined the rates in each of these categories.

21    A consumer will, in addition, pay a supply charge which is payable irrespective of the consumer’s actual usage. Other than in minor respects, the supply charge was not material to the matters in issue in these proceedings.

Category 3 and Category 5 Consumers

22    The ACCC allegations concern those consumers who commenced on market contracts with AGL in the period commencing on 1 January 2012 and concluding on 6 December 2012 (the Relevant Period) by accepting AGL’s offer of an “energy plan”. The principal features of the plans were that the consumers committed to obtain their electricity from AGL for a fixed period, usually two years, in exchange for an identified discount in their electricity usage charges. In the Relevant Period, AGL offered energy plans with 12 different percentage discounts. The particular energy plan which a consumer agreed with AGL depended on what AGL offered to the consumer and, to an extent, on the consumer’s willingness and ability to negotiate.

23    Consumers commenced energy plans with AGL by a number of different means, including: in telephone calls made by the consumer to AGL when the consumer spoke to a Customer Service Representative (CSR); in telephone calls to consumers by third parties; during visits to their homes by third parties; by using AGL’s website; and by “automatically recontracting” upon expiry of their previous energy plan. The ACCC case is limited to AGL’s statements to consumers who entered into energy plans with AGL following a telephone call made by those consumers to AGL in the Relevant Period.

24    Consumers who agreed on an energy plan with AGL entered into a market contract. Subject to exceptions to be mentioned shortly, AGL assigned its Rate Category 3 to consumers commencing on energy plans in the period 1 January 2012 to 18 July 2012. There were some 75,633 customers in this Category. Of these, 31,451 (42.9%) agreed to commence an energy plan in a telephone conversation with a CSR. This was the principal means by which consumers became Category 3 Consumers. The remainder commenced on energy plans by some other sales channel. As indicated, the ACCC’s claim presently concerns only the 31,451. Except when otherwise indicated, I will refer to these as the “Category 3 Consumers” even though they are only a portion of the total number to whom the Category 3 Rates applied.

25    Again subject to some exceptions, AGL assigned its Rate Category 5 to those consumers commencing on market contracts under energy plans between 19 July 2012 and 6 December 2012. It created Rate Category 5 for this purpose and “retired” Rate Category 3 so that new consumers could not be assigned to it. There were some 72,213 customers assigned to Category 5. Of these, 30,472 (42.8%) agreed to commence an energy plan with AGL during a telephone conversation with a CSR. Again, the ACCC’s present claim concerns only these persons. Except when otherwise indicated, I will refer to these too as the “Category 5 Consumers” even though they are a portion only of the total number to whom the Category 5 Rates applied.

26    The principal exceptions in each case were consumers who were employees of AGL or one of its related entities, and multi-site customers. In the period from 1 January 2012 to 18 July 2012, those customers were allocated to Rate Category 7 and, in the period from 19 July 2012 to 6 December 2012, to Rate Category 12. AGL described Rate Categories 7 and 12 as “Mirror Rates”, perhaps because at their commencement they “mirrored” the SRC rates and Rate Categories 3 and 5. In about January 2013, AGL consolidated Rate Category 12 into Rate Category 7. Those consumers who had previously been allocated to Rate Category 12 were then allocated to Rate Category 7 with the effect that, from January 2013, there were no consumers remaining in Rate Category 12.

27    The remaining exceptions do not need to be mentioned separately.

28    The evidence did not disclose whether, as with Category 5, AGL had created Category 3 so that consumers commencing on energy plans after 1 January 2012 could be allocated to it.

29    Subject to a qualification to be mentioned later, between 1 January 2012 and July 2012, the rates in Category 3 matched both the SRC rates and the Category 7 rates, and between 19 July 2012 and January 2013, the rates in Category 5 matched both the SRC rates and the rates in Categories 7 and 12.

30    AGL described Rate Categories 3, 5, 7 and 12 as its “active” rate categories in the Relevant Period and its other Rate Categories as “non-active”. The non-active categories continued to apply to the consumers to whom they had been assigned in the past, but could not be assigned to consumers commencing on energy plans in 2012. Rate Categories 3 and 7 became inactive on 19 July 2012 so that they could not be assigned to consumers commencing on energy plans after that date.

31    The discounts to which the 75,633 customers in Rate Category 3 were entitled depended upon the particular energy plan which they had agreed with AGL. Those plans provided for discounts which varied between 3% and 15%. The employees of AGL or one of its related entities and multi-site customers in Category 7 received a 25% discount. The discounts which the 72,213 customers in Category 5 received also varied from 3% to 15%. Again, employee customers and multi-site customers in Category 12 received a higher discount. As with Category 3 Consumers, the size of the discount which each consumer received varied according to the particular energy plan which the consumer had agreed with AGL.

The 2012 and 2013 Rate Increases

32    In July 2012, AGL increased the rates in Rate Category 3 (the Mid-2012 Rate Increase). It also increased the SRC Rates (with effect from 1 July 2012) and the Category 7 Rates but not as much as the Category 3 Rates. In addition, in July 2012 AGL introduced Categories 5 and 12 with rates which matched the new SRC and Category 7 Rates but which were less than the new Category 3 Rates. The effect was that AGL fixed higher rates in respect of those with whom it had already agreed an energy plan, but lower rates in respect of new customers with whom it wished to negotiate an energy plan or to have enter into a SRC.

33    As noted earlier, the 2013 SRC Rates introduced in January 2013 had the effect of reducing AGL’s then current SRC Rates with the greater reduction applying to those who commenced on an SRC in or before January 2013.

34    AGL increased both the Category 3 and Category 5 Rates in about July and August 2013 (the Mid-2013 Rate Increase). After 1 August 2013, the rates in Categories 3 and 5 were higher than both AGL’s 2013 SRC Rates and higher than its Category 7 Rates.

35    Table One contains a comparison of AGL’s Category 3 Rates with its SRC and Category 7/12 Rates, as applicable from time to time.

TABLE ONE

All the rates are expressed in cents per kiloWatt hour (c/kWh).

36    Table 2 shows a comparison of the rates in Category 5 with AGL’s SRC Rates and the Category 7 and 12 Rates.

TABLE TWO

Again, all the rates are expressed in terms of cents per kiloWatt hour (c/kWh).

37    In relation to Table One and the Category 3 Rates, the ACCC relied on the following:

(a)    In January 2012 when consumers commenced agreeing energy plans with CSRs to which the Category 3 Rates applied, the Category 3 Rates were the same as AGL’s SRC Rates and its Category 7 Rates.

(b)    The Category 3 Rates continued to match the SRC Rates until 1 July 2012 and to match the Category 7 Rates until the Mid-2012 Rate increase.

(c)    Following the Mid-2012 Rate Increase, the rates in Categories 5, 7 and 12 and the SRC Rates were identical but the Category 3 Rates were 2.6% higher than those rates. This reduced the advantage which the discounts under the agreed energy plans provided relative to other consumers.

(d)    AGL reduced the SRC Rates and the Category 7/12 Rates in January 2013 but did not reduce the Category 3 Rates. This meant that the rates applicable to Category 3 Consumers were 12.9% and 7.4% higher than those applicable to consumers on SRCs who did not have any entitlement to discounts. The advantage which Category 3 Consumers had relative to SRC consumers was therefore eliminated in some cases, and considerably reduced in other cases.

(e)    Following the Mid-2013 Rate Increase in the Category 3 Rates and the 1 August 2013 increase in the 2013 SRC Rates, the Category 3 Rates were 14.4% more than the Lower SRC Rates and 8.5% more than the Higher SRC Rates. The remaining advantages which Category 3 Consumers had relative to SRC Consumers were accordingly reduced still further, if not eliminated.

(f)    Unlike the Category 3 Rates, the Category 7 Rates after 1 August 2013 were the same as the Lower SRC Rates.

38    The ACCC accepted that some qualifications to these general propositions were appropriate. The Category 3 Consumers who entered into an energy plan between 1 July 2012 and 15 July 2012 were allocated to the original Category 3 Rate. Because the SRC Rates increased from 1 July 2012, this meant that these Category 3 Consumers commenced on rates which were actually lower than the then prevailing SRC Rates. Shortly after commencing, these Consumers received the Mid-2012 Rate Increase Letter and thereafter their rates, like other Category 3 Consumers, were higher than the SRC Rates. In addition, Category 3 Consumers who agreed on an energy plan between 16 July 2012 and 18 July 2012 were immediately allocated to the Category 3 Rates which were applicable after the Mid-2012 Rate Increase. Accordingly, those Consumers started on rates which were higher than the prevailing SRC Rates. The Consumers in this category did not receive the Mid-2012 Rate Increase Letter and their rates were not increased until Mid-2013.

39    In relation to Table Two and the Category 5 Rates, the ACCC relied on the following:

(a)    On 19 July 2012 when consumers commenced entering into energy plans to which the Category 5 rates applied, the rates in Category 5 were the same as AGL’s SRC Rates and its Category 7 and 12 Rates.

(b)    The Category 5 Rates continued to match the SRC Rates and the Category 7 and 12 Rates until January 2013.

(c)    AGL reduced its SRC Rates and Category 7/12 Rates in January 2013 with the introduction of the 2013 SRC Rates, but did not reduce the Category 5 Rates. This meant that the rates applicable to Category 5 Consumers were 10% and 4.7% respectively higher than those applicable to consumers on SRCs who had no entitlement to discounts. The advantage which Category 5 Consumers had relative to SRC Consumers was therefore eliminated in some cases, and considerably reduced in other cases.

(d)    Following the Mid-2013 Rate Increase in the Category 5 Rates and the 1 August 2013 Increase in the 2013 SRC Rates, the Category 5 Rates were 11.5% and 5.7% higher than the Lower SRC Rates and the Higher SRC Rates respectively. The advantages which Category 5 Consumers had relative to SRC Consumers were accordingly reduced still further, if not eliminated.

(e)    Unlike the Category 5 Rates, the Category 7 Rates and the Lower SCR Rates after 1 August 2013 were identical.

The False or Misleading Statements Alleged

40    The ACCC case was based on what AGL told the Category 3 and Category 5 Consumers about the Mid-2012 and Mid-2013 Rate Increases. Its misleading or deceptive conduct case was also based, in part, on what it omitted to tell them.

41    AGL informed the Category 3 Consumers of the Mid-2012 Rate Increase by letters sent between 9 July 2012 and 16 August 2012 (the 2012 Rate Increase Letters). The Letters were in the form of one or other of two pro forma letters. The first stated (relevantly):

Important adjustment to your AGL account

As part of our review of our energy prices in South Australia, we’re writing to advise you that the rates you pay for your electricity are about to increase. Your new rates and their effective date for your site, is shown on the back of this letter. This increase is in line with the terms of your contract. Sites that have Energy Plans with discounts or rebates will continue to receive these.

The increase for an average AGL residential electricity customer in South Australia equates to around $6.80 (incl. GST) per week, however the actual impact on your bills will depend on the usage at the site shown.

(Emphasis added)

The reverse side of the letter contained a table setting out both the current and the new rates.

42    The second form of the 2012 Rate Increase Letter to consumers stated (relevantly):

Important information about your AGL electricity Energy Plan

Dear [Consumer]

As part of our review of our energy prices in South Australia, we’re writing to advise you that the rates you pay for your electricity will increase from [ ]. Your new rates are shown on the back of this letter. Any discounts or rebates you currently receive on your energy usage charges will continue to apply.

….

The increase for an average AGL residential electricity customer in your area equates to around $7.10 (incl. GST) per week, however the actual impact on your bills will depend on your individual usage and specific circumstances.

(Emphasis added)

Again, a table on the reverse side of the letter set out the current and new electricity rates. The evidence did not explain the different figures given for the effect of the increase on “the average AGL residential electricity consumer”.

43    As can be seen, both forms of these letters told consumers that they would “continue” to receive their discounts.

44    The ACCC alleges that both forms of the Mid-2012 Rate Increase Letters contained a representation by AGL to its Category 3 Consumers:

… to the effect that they would continue to receive their percentage discount off:

(a)    AGL SA’s energy usage charges that would apply to them if they were supplied electricity by AGL SA not under an energy plan; or

(b)    The energy usage charges for the supply of electricity by AGL SA to residential consumers in South Australia,

for the duration of their energy plan.

The ACCC referred to this as “the Mid-2012 Discount Representation” and it is convenient to do likewise in these reasons.

45    The Mid-2012 Discount Representation was said to arise from the combination of AGL’s statements to the Category 3 Consumers at the time they entered into their market contracts (both in oral statements of the CSRs and in written statements in “Welcome Packs”) and the terms of the Mid-2012 Rate Increase Letters themselves.

46    The ACCC alleges that the Mid-2012 Discount Representation was false or misleading for Category 3 Consumers because, contrary to the true position following the Mid-2012 Rate Increase, they would not continue to receive a discount from the charges which would apply in their case if they were not party to an energy plan or from the charges applicable to residential consumers generally. I will refer later to the way in which the ACCC particularised this allegation.

47    AGL used one form of pro forma letter to inform both Category 3 and Category 5 Consumers of the Mid-2013 Rate Increase. That pro forma letter said (relevantly):

Important information about your energy rates.

Dear [Consumer]

Thank you for being an AGL customer. We’re writing to notify you that your AGL electricity rates will increase from 25 July 2013. Some fees will also change on 1 August 2013 while other fees will be changing on 31 August 2013. The amount that you pay on your electricity bills is made up of your rates and your energy usage and at AGL we offer ways to help you take control of your energy usage to save money. …

Your new energy rates

Comparison tables are shown further down in this letter with your current and new rates and fees for your electricity. In summary, the impact of the new electricity rates for an average household in your area will equate to around $1.50 more per week. How the price changes will impact your bills will depend on your specific circumstances.

A footnote indicated that the figure of $1.50 per week was based on “the current average consumption of an AGL household customer in your area”. Tables attached to the letter set out the current and the new rates and the current and new fees.

48    As can be seen, the Mid-2013 Rate Increase Letters did not include counterparts to the statements in the two Mid-2012 Rate Increase Letters concerning the continuance of the discounts to which the consumers were entitled. Nevertheless, the ACCC alleges that the Mid-2013 Rate Increase Letters contained a representation (the Mid-2013 Discount Representation) that there had been no change to the discounts which the consumers were receiving and that this representation was made to both Category 3 and Category 5 Consumers. It alleges that in each case the representation was false or misleading in a similar, but not identical, way to the Mid-2012 Rate Discount Representation.

49    AGL did have another form of both the Mid-2012 Rate Increase Letter and the Mid-2013 Rate Increase Letter which it sent to customers to whom it supplied both electricity and gas but, at least insofar as the letters notified of the increases in electricity rates, they were not materially different from the quoted letters.

50    The ACCC case is that the Category 3 and Category 5 Consumers were told, in effect, that the position as originally represented to them would continue after the price increases. The parties disagreed as to the effect of AGL’s original representation to these Consumers. This had the consequence that a substantial part of the submissions at the trial was directed to the appropriate characterisation of what had been represented to the Category 3 and Category 5 Consumers at the time they entered into their energy plans. For the same reason, a considerable part of this judgment is directed to this issue.

51    The ACCC contended in the Amended Fast Track Statement (AFTS) at [22] and [24] that, in relation to both Category 3 and Category 5 Consumers, AGL had promoted, offered and entered into energy plans with them on the basis of a representation (the Initial Representation) that, for the duration of their energy plans, they would receive a percentage discount off:

(a)    AGL SA’s energy usage charges would apply to them if they were supplied electricity by AGL SA not under an energy plan; or

(b)    The energy usage charges for the supply of electricity by AGL SA to residential consumers in South Australia.

As can be seen, the Initial Representation had two formulations but it is convenient generally to refer to it as a single representation.

52    Despite some indications in the AFTS (at [54]-[55] and [57]) to the contrary, the ACCC did not allege that the Initial Representation was false or misleading or deceptive. Instead, it said that it was “a building block” in its case relating to the Mid-2012 and Mid-2013 Discount Representations and accepted that its allegations of false or misleading representations must fail if the Court did not accept that the statements made by AGL amounted to the Initial Representation alleged. It is established that consumer understandings or beliefs resulting from a respondent’s earlier conduct may form part of the context to be considered when determining whether a later representation is false or misleading.

53    In addition to its allegation that the Mid-2012 Discount Representation was false or misleading, the ACCC also alleges that the representation was misleading or deceptive in contravention of s 18 of the ACL because of AGL’s omission to disclose certain information (the Mid-2012 Rate Increase Information). I will identify that information later in these reasons.

54    The ACCC makes a similar but not identical allegation of misleading or deceptive conduct by silence in respect of information which AGL did not disclose to Category 3 and Category 5 Consumers at the time of the Mid-2013 Rate Increase. I will identify the information said not to have been disclosed later in these reasons.

55    In summary, the ACCC case is that each of the Mid-2012 and Mid-2013 Rate Increase Letters represented to consumers that, after the increase in rates which they announced, consumers would continue to receive the same discounts which had been represented to them when they had entered into their energy plans with AGL, when that was not the case.

Issues for determination

56    The ACCC allegations give rise to the following issues in relation to the Mid-2012 Discount Representation:

(a)    Did AGL make the Initial Representation to Category 3 Consumers in the period 1 January 2012 – 18 July 2012?

(b)    What did AGL represent to the Category 3 Consumers in relation to the Mid-2012 Rate Increase?

(c)    Was that representation false or misleading?

(d)    Was that representation misleading or deceptive for the same reasons or for the further reason that AGL did not disclose the Mid-2012 Rate Increase Information?

57    In relation to the Mid-2013 Discount Representation, the issues are similar but have to be considered in relation to the representations to both the Category 3 and Category 5 Consumers.

The legislation

58    Section 18(1) of the ACL provides:

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Section 4(2) of the CC Act elaborates the concept of engaging in conduct as follows:

(a)    A reference to engaging in conduct shall be read as a reference to doing or refusing to do any act …

…

(c)    A reference to refusing to do an act includes a reference to:

    (i)    refraining (otherwise than inadvertently) from doing that act; or

    (ii)    making it known that that act will not be done.

Section 29(1) of the ACL provides (relevantly):

A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(g)    make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or

…

(i)    make a false or misleading representation with respect to the price of goods or services …

The ACCC case with respect to s 29(1)(g) focused on the concept of “benefits”. It was not in dispute that the discount on AGL’s energy usage charges was a “benefit” within the meaning of s 29(1)(g). The term “price” in s 29(1)(i) is defined in general terms and includes “a charge of any description”. Again it was not in dispute that the conduct of AGL which the ACCC impugns in this case concerned the “price” at which AGL supplied electricity to consumers.

59    The ACCC seeks the imposition of civil penalties in relation to the contraventions of s 29(1) of the ACL which it alleges. That being so, AGL emphasised the terms of s 140 of the Evidence Act 1995 (Cth).

Relevant principles

60    Sections 18 and 29 of the ACL are counterparts of the former ss 52 and 53 of the Trade Practices Act 1974 (Cth). It was common ground that the case law developed in relation to ss 52 and 53 could be applied in relation to ss 18 and 29 of the ACL. It was also common ground that, despite the slight differences in language between ss 18 and 29(1) of the ACL, there was no significant difference in meaning between “misleading or deceptive” and “mislead or deceive” in s 18 and “false or misleading” in s 29(1): Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [14] cited with approval in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 at [40].

61    The principles relating to a contravention of s 18 of the ACL by conduct involving the making of representations are similar to those relating to a finding that a representation is false or misleading in contravention of s 29(1)(g). However, the ACCC relied on AGL’s alleged non-disclosures only in relation to its plea of contraventions of s 18. This means that the principles relating to misrepresentation by silence do not apply in relation to the pleaded contraventions of s 29.

62    Many of the principles relating to the application of ss 18 and 29 were summarised by Allsop CJ in Coles Supermarkets at [35]-[47]. Drawing on that summary in particular, as well as other authorities, the following principles of present relevance can be stated:

(a)    Provisions such as s 18 of the ACL are remedial in character and so should be construed so as to give the fullest relief which the fair meaning of their language will allow: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503; New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski [2011] FCAFC 106, (2011) 195 FCR 234 at [105].

(b)    Conduct is misleading or deceptive if it has the tendency to lead into error. There must be a sufficient causal link between the conduct and the error on the part of the person exposed to the conduct: Coles Supermarkets at [39].

(c)    The question of whether conduct, including conduct by way of representations, contravenes ss 18 or 29 of the ACL is one of fact to be determined by an objective consideration in the light of the relevant surrounding facts and circumstances: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198-9; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [109].

(d)    The application of s 18 of the ACL requires identification of the conduct said to be misleading or deceptive or likely to mislead or deceive. Once that conduct has been identified, the Court will consider separately whether the conduct was misleading or deceptive or likely to be so: Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 249 CLR 435 at [89].

(e)    Consideration of the conduct as a whole and in its proper context may include consideration of the type of market, the manner in which goods or services are sold, the habits and characteristics of purchasers in that market as well as any relevant disclaimers or explanations: Coles Supermarkets at [41]. It also includes any relevant disclaimers, qualifications or explanations: Butcher v Lachlan Elder Realty Pty Ltd at [49].

(f)    In assessing advertising material, the “dominant message” of the material will be of crucial importance: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [45].

(g)    When the impugned contact involves representations to the public at large or to a section of the public, such as prospective retail purchasers of a product or service, regard must be had to the effect of the representations on “ordinary” or “reasonable” members of the class of prospective purchasers. The range of persons in such a class may be quite broad and may include the intelligent as well as the less intelligent and those who are well educated as well as those who are less literate. Generally speaking, the class will not include those who fail to take reasonable care for their own interests: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12, (2000) 202 CLR 45 at [101]-[103]; Coles Supermarkets at [43].

(h)    Evidence that someone was actually misled or deceived by the conduct in question is relevant and admissible but in those cases in which the conduct and representations are to the public generally and concern simple direct advertising, the absence of individuals saying that they were misled will usually be of little significance. The Court can carry out an objective assessment of the advertising and promotional material itself without evidence from individual witnesses and generally, the calling of such evidence is not cost effective: Coles Supermarkets at [45].

63    I will refer to the principles relating to misleading or deceptive conduct by silence in the reasons addressing that part of the ACCC case.

The Initial Representation

64    As previously noted, the ACCC case concerns those consumers who entered into market contracts with AGL in the Relevant Period by agreeing on an energy plan in a telephone conversation with a CSR which they themselves had initiated. It was common ground that the CSRs had made the oral statements and that AGL had made the written statements in “Welcome Packs” it sent to the consumers who agreed on an energy plan upon which the ACCC relied for its plea of the Initial Representation. AGL disputed, however, that these statements gave rise to either of the formulations of the Initial Representation alleged by ACCC. A large part of the submissions of the parties was directed to this issue.

The CSR Statements

65    AGL supplied its CSRs with materials containing mandatory or suggested wording for use in their discussions with consumers, sometimes described as “call scripts”. These were to assist CSRs in dealing with the 13 most common types of inbound calls by a consumer.

66    The call scripts included, in different places, the following six wordings for use by CSRs (collectively the CSR Statements):

(1)    I can set you up on a X year plan where you’ll get a XX% discount on your energy usage charges.

(2)    Are you interested in saving XX% on your energy usage charges?

(3)    We can offer a XX% discount on your energy usage charges …

(4)    What we could do for you today is upgrade you to a more competitive plan which is a XX% discount (maximum available plan as per campaign matrix) on your energy usage charges …

(5)    Are you interested in getting a XX% discount on your energy usage charges?

(6)    Today I can offer you a X plan discount on your energy usage charges.

The wording in (1), (2), (3) and (5) was mandatory in the call types in which they were included, while the wording in (4) and (6) was suggested only.

67    It was an agreed fact that the CSRs made at least one of the first, second, third and fifth of these statements to each person making an inbound telephone call to a CSR and who, in the Relevant Period, agreed with the CSR to enter into an energy plan. It was also an agreed fact that, in some calls, the CSRs made one or both of CSR Statements (4) and (6).

68    In addition, the ACCC tendered the recordings of six telephone conversations which it said had been agreed between the parties to be “a fair sample” of the telephone conversations in the Relevant Period between CSRs and consumers who became Category 3 and Category 5 Consumers. I will refer to these as Consumers One to Six respectively.

69    The conversation with Consumer One included the following:

CSR:    Are you interested in saving 5% off your energy usage charges?

Consumer One:    Yep.

CSR:    Yep. I can set you up on a two year plan where you’ll get a 5% discount on your energy usage charges and an AGL Assist Voucher. …

The conversation with Consumer Two included the following:

CSR:    Are you interested in saving 7% on your energy usage charges?

Consumer Two:    Yes. How do I do that?

    …

CSR:    So, I’ll set you, I can set you up on a two year plan where you get a 7% discount on your energy usage charges. ….

The conversation with Consumer Three included the following:

CSR:            …

    Yep, so I can set you up on a two year plan, right? You get 5% off each energy usage charge, ok?

Consumer Three:    Yep.

The conversation between the CSR and Consumer Four included the following:

CSR:    … So yeah I can see at the moment you’re receiving a 5% discount. So you say it was a 11% that the other company offered? … Let’s have a look. So what I can offer you for, um, if you decide to remain with AGL I can offer you um a 12% um discount off your um sorry off your electricity usage charges as well as an AGL Assist Voucher. So, how would that sound?

Consumer Four:    And what, sorry, what was the percentage?

CSR:    Ah so it’s 12% discount off your electricity usage charges. … So how it will work is that um you will receive a 12% discount for a period of two years if you stay with AGL on this plan at this property or if you renew it at any other property.

The conversation with Consumer Five included the following:

CSR:    [Indecipherable] So it’ll essentially be a 12% discount off your energy usage charges and an AGL Assist Voucher.

Consumer Five:        So that’s 12% all up is it?

CSR:    Ah, its 12% only off the electricity that you consume, not the daily supply charge.

Consumer Five:    Right. Yep.

The conversation with Consumer Six with the CSR included the following:

CSR:    OK … I can offer you a 15% discount off all your electricity usage on a two year plan. How does that sound?

Consumer Six:    That sounds very nice thank you.

CSR:    … Now I just need to advise you that if you leave AGL in this three year period that there is a maximum exit fee of $75 but as long as you stay with AGL at this property or renew it at any other property, you’ll continue to enjoy the 15% discount and this fee will not apply. Is that ok?

Consumer Six:    Yes, I won’t be changing because I’ve been with them all my life, like all my adult life.

70    The ACCC emphasised the references in the CSR Statements and in these excerpts of conversations with consumers to discounts off the customers’ energy usage charges. I note in addition that the CSRs made statements to the effect that they could set consumers up on “a more competitive plan” and that consumers could obtain “a saving”. The tenor of the statements made by the CSRs in their conversations with the consumers was that consumers would obtain an advantage by entering into the offered energy plan with the associated commitment to take their electricity from AGL for an extended period. All the statements were made in a context of attracting consumers to contract with AGL or to remain a customer of AGL.

71    AGL did not contend that different CSR Statements gave rise to any relevant difference in meaning. It is accordingly unnecessary to consider the effect of the Statements individually.

72    The ACCC submitted that the CSR statements were also made in the Relevant Period to persons who became the Category 7 and Category 12 Consumers. However, the evidence is not sufficient to justify a finding to that effect.

The Welcome Pack Statements

73    The “Welcome Pack” sent to each Category 3 and Category 5 Consumer included a “Welcome Letter”, an Offer Summary, an AGL Assist Voucher, AGL’s Customer Charter, AGL’s Privacy Policy, AGL’s Dispute Resolution Policy, AGL’s Customer Service Standards, a Product Disclosure Document, a Fee Schedule, a Statement of General Terms and Conditions and a pro forma Cancellation Notice by which the consumer could exercise cooling off rights (together the Welcome Pack). Some of these documents were in the form of brochures and leaflets.

74    AGL had three versions of the Welcome Pack in the Relevant Period. Welcome Pack Version 2 comprised some 70 separate pages. Welcome Pack Versions 1 and 3 comprised some 50 pages. The principal reason for these differences appears to be that Versions 1 and 3 did not include an information leaflet about AGL itself and some materials which are relevant in New South Wales only.

75    The ACCC referred particularly to the following statements in the Welcome Packs (the WP Statements):

Welcome Pack Version 1

1    Welcome Letter:

(a)    “[ ]% off usage charges*”

(b)    “*The discount applies to your energy usage charges and will appear as separate credit (GST exclusive) on your bills”

2    Offer Summary:

(a)    “[ ]% guaranteed discount”

(b)    “A discount equal to [ ]% of the amount payable for your applicable energy usage charges applies as part of this energy plan and will appear as a separate credit (GST exclusive) on your bills. The discount does not apply to fixed daily energy supply charges, demand charges or AGL green choice Charges”

Welcome Pack Version 2

3    Welcome Letter;

(a)    “Your AGL discount [ ]% off usage charges*”

(b)    “Great value – [ ]% discount off your electricity usage charges*”

(c)    “The discount applies to peak, off-peak and shoulder energy usage charges, and will appear as a separate credit (GST exclusive) on your bills. The discount does not apply, for example, to fixed daily energy service charges, demand charges or AGL green choice Charges”

4    Offer Summary:

(a)    “A discount equal to [ ]% of the amount payable for your applicable energy usage applies as part of this energy plan and will appear as a separate credit (GST exclusive) on your bills. The discount does not apply, for example, to fixed daily energy charges, demand charges or AGL green choice Charges”

Welcome Pack Version 3

5    Welcome Letter:

(a)    “[ ]% off usage charges guaranteed for [ ] years”

(b)    “The discount applies to your energy usage charges and will appear as a separate credit (GST excl) on your bills”

6    Offer Summary:

(a)    “[ ]% guaranteed discount”

(b)    “A discount equal to [ ]% of the amount payable for your applicable energy usage charges applies as part of this energy plan and will appear as a separate credit (GST exclusive) on your bills. The discount does not apply to fixed daily energy supply charges, demand charges or AGL green choice Charges”

76    Again, AGL did not suggest that there was any relevant difference in the wording of the Welcome Packs, so that their effect does not have to be considered individually.

77    The context in which these statements were made in Welcome Pack Version 2, which was used by AGL in the period from 1 January 2012 to 15 June 2012, can be seen in part in the pro forma Welcome Letter sent to one consumer on 5 March 2012. In the top right hand corner, after stating the consumer’s account name and number, the letter identified the particular consumer’s energy plan as “AGL Advantage 10 – Electricity” and stated “Your AGL discount 10% off usage charges*”. The asterisk referred to a footnote stating:

The discount applies to peak, off-peak and shoulder energy usage charges and will appear as a separate credit (GST exclusive) on your bills. The discount does not apply, for example, to fixed daily energy service charges, demand charges or AGL Green Choice Charges.

The first section of the letter stated:

You’re on a good thing with AGL at home.

You’ve made a great decision to choose an AGL Advantage 10 Energy Plan for your electricity. You can feel good knowing that you’ve joined over three million account holders who have also chosen AGL for hassle free, competitively priced energy for their home. You’ll now enjoy:

•    Great value – 10% off your electricity usage charges*, plus we will source electricity equal to 10% of your consumption from Government accredited GreenPower generators.

•    Excellent service – we can help arrange every aspect of your home energy needs, from easy ways to save energy and money on your energy bills to reliable electricians, discounts on appliances and more.

•    Fair deals – our Movers Guarantee, Fair Pricing and Fair Contracting Promises help ensure you’ll always get a fair deal from AGL;

•    AGL Energy Online – you can manage your energy account online with ease, just like internet banking.

The asterisk referred to the same footnote as that quoted above.

78    The Welcome Letter in Welcome Pack Versions 1 and 3 had a similar content, although the layout of the letters was different.

79    Counsel for AGL emphasised other aspects of the Welcome Packs. These included the schedule of the electricity rates applicable in the consumer’s case, the statement of the consumer’s entitlement to exercise cooling off rights, the notice to the consumers that AGL could vary the consumer’s rates, charges, tariff structure, billing frequency and the terms of the energy plan at any time by prior notice to the consumer, the notice to consumers that the respective rights and obligations of AGL and consumers were governed by AGL’s general terms as well as specific regulations and codes, and AGL’s “Fair Pricing Promise”. I will return to that Promise later in these reasons.

The classes of consumer to whom the statements were made

80    It is convenient to note again the ACCC’s formulation in the AFTS of the Initial Representation said to have been made by the CSR Statements and the WP Statements. It is said to be a representation that, under the nominated energy plan, the consumers would, for the duration of that energy plan, receive a discount off:

(a)    AGL SA’s energy usage charges that would apply to them if they were supplied electricity by AGL not under an energy plan; or

(b)    The energy usage charges for the supply of electricity by AGL SA to residential consumers in South Australia.

81    The AFTS at [22] pleads that the Initial Representation was partly express and partly to be implied and, in relation to the CSR Statements, gave the following particulars:

To the extent that the representation was express, it was made orally by the words comprising the CSR Statements. To the extent that the representation was implied, it was to be implied from the content of the CSR Call Script used by the Customer Service Representatives in telephone conversations with Consumers and, in particular, the CSR Statements.

82    The particulars of the Initial Representation said to arise from the Welcome Pack statements were in similar terms. The AFTS alleges in [24]:

To the extent that the representation was express, it was made by the words comprising the Welcome Pack Statements. To the extent that the representation was implied, it was to be implied from the entirety of the Welcome Pack and, in particular, the Welcome Pack Statements.

83    The claim that the Initial Representation was made expressly cannot be accepted. Neither the CSRs nor the Welcome Packs used either of the pleaded formulations of the Initial Representation. The ACCC claim must accordingly, be one of an implied representation, that is, that the words used by the CSRs and in the Welcome Packs implied in the context in which they were made one or other of the pleaded formulations of the Initial Representation.

84    The ACCC contended that whether consumers understood the Initial Representation in terms of formulation (a) or formulation (b) depended on their knowledge of the means by which AGL could supply electricity to them. Its submissions on this topic were not entirely clear but, as I understood the position, the ACCC contended that the way in which the ordinary and reasonable consumer understood the Initial Representation depended on that consumer’s awareness of whether AGL could supply electricity to him or her without them entering into an energy plan. On this basis, the ACCC identified three sub-classes of Category 3 and Category 5 Consumers:

(i)    Consumers who were aware that AGL could supply electricity to them whether or not they agreed on an energy plan;

(ii)    Consumers, being a subset of (i), who were aware in addition that the entry into a standing contract (whether or not they knew it by name) was the means by which AGL could supply electricity to them if they did not agree on an energy plan;

(iii)    Consumers who were not aware that AGL could still supply electricity to them in the event that they did not enter into an energy plan. These consumers thought that they had to enter into an energy plan if they wished AGL to supply electricity to them.

85    The ACCC submitted that ordinary and reasonable consumers generally would have understood the Initial Representation in the second of its formulations, namely, as a representation that they would receive the discount from the energy usage charges for the supply of electricity by AGL to residential consumers in South Australia. It referred to this more shortly as a deduction from AGL’s “usual price” or from “the usual price charged [by AGL] to consumers like them”.

86    It then submitted that the ordinary and reasonable consumer in sub-classes (i) and (ii) would have understood the Initial Representation in the more particular way alleged in formulation (a), namely, as a representation that they would receive the discount from the “usual” energy usage charges which would apply in their case if they were supplied other than under an energy plan. Those in sub-class (ii) would, it submitted, have understood that those “usual” charges would be calculated by reference to AGL’s applicable standing contract rate. The remainder of sub-class (i) would have understood only that they would be the rates which would apply if they declined to enter into an energy plan which, as it happened, were the SRC rates.

87    Both counsel submitted that it was reasonable to suppose that the consumers in Category 3 and Category 5 included sub-classes with varying degrees of awareness. Counsel for AGL referred to Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2008] FCA 607 and to Australian Competition and Consumer Commission v Jewellery Group Pty Ltd [2012] FCA 848; (2012) 293 ALR 335. In Apotex, Bennett J at [57]-[58] held that pharmacists and patients may have been misled by representations on a printed stamp to be applied to medication prescriptions, but not doctors. In Jewellery Group, Lander J accepted at [31]-[32] that the class of persons reading advertisements for jewellery would comprise those who were aware of the possibility of obtaining a discount below the ticketed price and those who were not. This approach was upheld on appeal: Jewellery Group Pty Ltd v Australian Competition and Consumer Commission [2013] FCAFC 144.

Characteristics of the Category 3 and Category 5 Consumers

88    The very number of Category 3 and Category 5 Consumers to whom the CSR Statements and WP Statements were made suggests that the range of persons within those groups must have been diverse. They are likely to have included the experienced and the inexperienced, the astute and the not so astute, the educated and the less well educated, and the careful and the not so careful.

89    However, it is also reasonable to suppose that Category 3 and Category 5 Consumers had much in common: all wished to obtain or to continue a supply of electricity to residential premises; all may be taken to have known that electricity is an essential utility in every home; all may be taken to have known that the physical means by which retailers such as AGL supply electricity to homes is common, or substantially common, in all cases; all may be taken to have known that AGL was a large retailer of electricity, supplying electricity to hundreds of thousands of homes in South Australia and that, because of the volume of its customers, its supply arrangements would be of a generally similar kind; all had made a telephone call to AGL resulting in their conversations with the CSR; all must have been willing at the time of their telephone call to contract with AGL (with the possible exception of those who telephoned AGL with the intention of cancelling their supply arrangements or merely to raise a query about their existing supply or an account); and all were attracted by the notion of obtaining a saving in the amount they paid for electricity in consideration of their commitment to take their supply from AGL for a fixed period. They were not persons who entered into energy plans with AGL by other means, for example, by use of AGL’s website or by arrangements made with someone attending their premises. I also consider that all of the Category 3 and Category 5 Consumers can be taken to have been aware that they would be charged for their electricity according to their individual usage.

90    I accept the ACCC submission that not all of the persons who became Category 3 and Category 5 Consumers had made their telephone call to AGL for the express purpose of negotiating an energy plan. If it were otherwise, the inference would be available that all were aware of the availability of energy plans with discounts. However, as previously noted, the call scripts were a guide to CSRs in the 13 most common call types. In addition to persons ringing expressly to enquire about AGL’s rates and discounts, the call types included customers of other retailers who were seeking out a better deal; those wishing to arrange a new supply of electricity; those seeking the transfer of electricity from one home to another; those wishing to have their supply cancelled; those wishing to make a complaint; and those raising a query about their supply or their account. It is probable that many making the first type of call were ringing to negotiate an energy plan but the same cannot be said of the remaining call types. Consumers making some of the latter types of calls may simply have been ringing to arrange a supply of electricity but with no pre-existing knowledge of energy plans. Those making a complaint or raising a query were plainly not ringing for the express purpose of negotiating an energy plan. It is not possible to make a finding about the numbers of each of these kinds of callers who became Category 3 and Category 5 Consumers but it is reasonable to suppose, and I so find, that there were at least some of each.

91    I consider it likely that some, and probably many, of the Category 3 and Category 5 Consumers had knowledge of the electricity market at the time of their telephone call: that is, knowledge that there was more than one retailer; that retailers were competing with one another for customers; that retailers were prepared to offer discounts to attract or retain customers; that benefits could be obtained by comparing retailers’ rates and shopping around; and that by committing to take their supply from a retailer for a given period they could obtain discounts.

92    In this context, I refer to the evidence provided by AGL regarding the switching of customers from one retailer to another. On the basis of the evidence of the economist Mr Price, I accept that approximately 80% of residential customers in South Australia in 2012 were aware of their ability to select their own retailer; that about 20% of customers switched retailers each year; and that the extent to which consumers switch between retailers is an indication of the degree of consumer awareness of choice and of competition by retailers for their businesses. It is reasonable to suppose that these figures would also have applied to AGL customers.

93    The evidence of Mr Price indicates that consumers had a variety of means of identifying the rates used to calculate their electricity charges. These included schedules of rates provided to them by their retailer on the commencement of their contracts, and the rates shown on electricity accounts and on fact sheets on the various retailers’ websites which were available to consumers on request. Use of AGL’s website was one means by which consumers could have found that AGL had two or more sets of rates for the supply of electricity to residential premises. I also accept that consumers had available to them a number of means of comparing retailers’ prices in their own circumstances. These included the Residential Estimator Service published by ESCOSA on its website, as well as price comparison websites operated by energy regulators and others which were available free of charge.

94    I think it likely (and so find) that some consumers in the Relevant Period were aware of these means of comparing prices and of other steps taken by energy regulators (for example, the Energy Price Disclosure Code made by ESCOSA) for the purpose of facilitating comparison by consumers between retailers’ prices.

95    However, I also consider it likely, and so find, that large numbers of the Category 3 and Category 5 Consumers would not have been aware of these matters and would have had a relatively unsophisticated knowledge of the electricity market. Some of the audio tapes of telephone conversations between consumers and CSRs to which I referred earlier support that conclusion.

The origins of the Category 3 and Category 5 Consumers

96    AGL provided evidence as to the origins of all the Consumers to whom AGL assigned its Category 3 and Category 5 Rates from which some inferences about their knowledge of the means by which electricity could be supplied to residential consumers may be drawn. The report from Mr Jaski warrants the following findings concerning the origins of all the 75,633 Category 3 Consumers:

(i)    12,422 had previously been supplied electricity by AGL under a SRC;

(ii)    28,432 had previously been supplied electricity by AGL under another energy plan and, of those, 11,430 had been “automatically recontracted” by AGL upon the expiry of their previous energy plan. This means that 17,002 of the AGL consumers who had previously been on an energy plan became Category 3 Consumers by one of AGL’s sales channels;

(iii)    4,923 had previously been supplied electricity by AGL under a “No Discount Product” (a market contract with no provision for discount);

(iv)    158 had previously been supplied electricity by AGL under a “Default Contract” (the arrangement applicable under s 36AB of the Electricity Act 1996 (SA) for those consumers taking a supply of electricity without having entered into a contract with a retailer for that supply and for which AGL was responsible as the designated retailer);

(v)    27,322 had not previously been supplied electricity by AGL.

Mr Jaski’s report did not indicate the origins of the remainder.

97    The evidence did not disclose how many in each of these categories of origin agreed on an energy plan with a CSR in the course of an inbound telephone conversation, but it is reasonable to suppose that a significant proportion of each did so.

98    Mr Jaski’s report also indicated that, of the Category 3 Consumers, some 2,867 had exercised their cooling off rights within 13 days after agreeing on their energy plan, and that some 66,024 and 44,466 had remained as Category 3 Consumers at 9 July 2012 and 15 July 2013 respectively. Again, the evidence does not permit a finding as to how many of these were consumers who had agreed on an energy plan with a CSR. However, if the proportion of these consumers of all Category 3 Consumers remained constant, there would have been approximately 27,000 and 18,000 consumers at 9 July 2012 and 15 July 2013 respectively who had agreed on their energy plan with a CSR during the course of an inbound telephone conversation between 1 January 2012 and 18 July 2012. These are the consumers who would have received the Mid-2012 and Mid-2013 Rate Increase Letters.

99    In relation to the 72,213 Category 5 Consumers, Mr Jaski’s report warrants the following conclusions:

(i)    13,002 had previously been supplied electricity by AGL under a SRC;

(ii)    32,763 had previously been supplied electricity by AGL under another energy plan and, of these, 3,374 had been “automatically recontracted” by AGL upon expiry of their previous energy plan. This means that 29,389 consumers had become a Category 3 Consumer by one of AGL’s sales channels;

(iii)    5,754 had previously been supplied electricity by AGL under a “No Discount Product” (other than a SRC);

(iv)    138 had previously been supplied electricity by AGL under a “Default Contract”

(v)    19,594 had not previously been supplied electricity by AGL.

Again, Mr Jaski’s report did not indicate the origins of the remainder.

100    As with the Category 3 Consumers, the evidence did not disclose how many in each of these categories of origin agreed on an energy plan with a CSR in the course of an inbound telephone conversation, but it is reasonable to suppose that a significant proportion of each (other than those “automatically recontracted”) did so.

101    Mr Jaski’s report indicated that, of the Category 5 Consumers, some 2,508 had exercised cooling off rights within 13 days of agreeing on the energy plan and so did not continue as Category 5 Consumers. The report also indicated that 57,247 remained as Category 5 Consumers at 15 July 2013. Using the same proportion of the whole of those who had commenced on an energy plan by agreement with a CSR in an inbound telephone conversation, it seems reasonable to suppose that at 15 July 2013 about 24,000 of the Category 5 Consumers would have commenced on an energy plan as a result of an agreement with a CSR. These are the consumers who received the Mid-2013 Rate Increase Letters.

102    AGL submitted that each of the five categories of origin identified by Mr Jaski should be regarded as a sub-class of both Category 3 and Category 5 Consumers. It based this submission on the knowledge of AGL’s rates or its SRC which it submitted could be imputed, or not imputed, as the case may be, to each of the sub-classes by reason of their category of origin. In addition, AGL submitted that adoption of these sub-classes would permit an objective determination of the numbers in each sub-class and, if necessary, an identification of each person in the sub-class.

103    However, the achievement of precision of this kind is not essential, just as it was not essential in Jewellery Group. Further, division of the Category 3 and Category 5 Consumers into the sub-classes proposed by AGL would not allow for the probability that the knowledge of those in each sub-class was not uniform and for the probability that the awareness of each consumer of the available arrangements with AGL did not closely correlate with the consumer’s category of origin. For example, contrary to the AGL submission, some of those Category 3 and Category 5 Consumers who had not previously been on a SRC with AGL are likely to have known from other sources of the availability of its standing contract.

104    I consider it reasonable to conclude in relation to both Category 3 and Category 5 Consumers that many (and probably most, if not all) of those who had previously been supplied electricity under a SRC were aware that electricity could be supplied other than pursuant to an energy plan. That is, they were consumers who were aware that they did not have to enter into an energy plan to secure a supply of electricity from AGL and that they had the choice of continuing their existing arrangement (whether or not they knew that that arrangement was described as a SRC). Consumers of this kind are likely to have considered that, by accepting the offered energy plan with the stipulated discount, they were obtaining an advantage for themselves relative to the position which would pertain if they remained on an SRC and that it was that advantage which made it worthwhile for them to move from a SRC and to commit to AGL for the two year period.

105    The same conclusion is appropriate with respect to those who had previously been supplied electricity under a no discount product. There was little evidence about the relatively small numbers who had been supplied under a default contract and it is not possible to make useful findings about them.

106    As indicated earlier, there are also likely to have been some in the other categories of origin who were aware that AGL could supply electricity other than pursuant to an energy plan, and that this could be done pursuant to a standing contract. That knowledge may, for example, have been derived from an earlier experience with AGL.

107    This means that I accept that there were consumers in sub-class (ii) to which the ACCC referred.

108    The extent of the knowledge of those who had previously been supplied electricity by AGL under an energy plan or who had been supplied by another retailer is less certain. It can at least be concluded that these consumers were aware that electricity could be supplied to them under an energy plan. The AGL customers may be taken to have known this because of their previous experience on such plans with AGL. I note in this respect that the caller in one of the audio taped conversations was an existing AGL customer seeking a greater discount from AGL in light of the discount offer he had received from another retailer. But even if there were AGL customers or customers of another retailer who had not known previously of energy plans, they were, in their conversations with the CSRs, told of “plans” by which they could obtain discounts. They thereby learnt of energy plans.

109    However, as I have said, a conclusion that these consumers were aware that AGL could also supply electricity to them without them entering into an energy plan is less certain. It would be understandable that many consumers of these kinds, having been told of a plan with the offered discount, did not turn their minds to other arrangements which did not involve discounts. It is accordingly understandable that some of these consumers were not aware of, or at least gave no thought to, the possibility that AGL could supply electricity to them without their entering into an energy plan. It is also understandable that many of these consumers were aware that AGL could supply electricity to them without them entering into an energy plan but, given the attraction of the offered discount, did not consider that such an arrangement warranted consideration. In addition, there are likely to have been consumers with little or no experience of securing a supply of electricity, for example first home buyers or first-time renters, who may not have been aware that electricity could be obtained from a supplier without their entering into an energy plan.

110    Nevertheless, I think it likely that there were many who had at some stage made a conscious decision to enter into an energy plan for the supply of their electricity, and who may be taken to have known that they could still be supplied electricity if they had chosen not to.

111    Beyond this, I do not think it possible to be more precise as to the extent of awareness of the Category 3 and Category 5 Consumers at the time of the statements giving rise to the pleaded Initial Representation.

112    In summary, I accept that there were Category 3 and Category 5 Consumers in each of the sub-classes identified by the ACCC. There were some who were aware that AGL could supply electricity to them without them entering into an energy plan (ACCC’s sub-class (i)); there were some who knew this could be done by a SRC (even if they did not know that name) (ACCC’s sub-class (ii)); and there were some who thought that the only way to obtain a supply of electricity from AGL was to enter into an energy plan (ACCC’s sub-class (iii)).

113    It is not possible to determine the numbers of Category 3 and Category 5 Consumers in each of the sub-classes but I am satisfied that there were at least some.

114    Before considering the Initial Representation said to have been made to these sub-classes, it is appropriate to address particular criticisms by AGL of the pleaded Initial Representation.

Is the Initial Representation nonsensical?

115    First, AGL submitted that the pleading of the Initial Representation was nonsensical. This was said to arise from the inconsistent use in the AFTS of the term “energy plan” in the upper and lower case. AFTS [14] defined “Energy Plans” (in the upper case) as follows:

During the period 1 January 2012 to 6 December 2012 (the Relevant Period), [AGL) offered to supply and supplied electricity to Consumers under market contract energy plans which featured a discount in respect of energy usage charges (Energy Plans).

Thus, Energy Plans in the upper case were defined to be “market contract energy plans” featuring a discount in respect of energy usage charges.

116    In the pleading of the Initial Representation in AFTS [22(a)] and [24(a)] and in other paragraphs, the AFTS used the term “energy plan” in the lower case.

117    AGL submitted that the use of the term in [22] and [24] in the lower case must be taken to indicate that it had a meaning extending beyond the defined meaning and, in particular, as extending to market contracts with no discounts. It referred in this respect to the evidence indicating that it had supplied electricity to residential consumers under market contracts with no provision for discounts. AGL submitted that this had the effect of making the first formulation of the Initial Representation nonsensical.

118    I do not accept this submission. It assumed that the use of the term “energy plan” in the lower case was intended to convey a meaning which was different from the same term used in the upper case. A much more obvious explanation is an inadvertent use of the upper and lower case in the drafting of the AFTS. AGL did not suggest that giving the term “energy plan” in the lower case the same meaning as defined for the term in the upper case resulted in inconsistency or nonsensicality.

119    Further, while there is evidence that, in the past, AGL offered a market contract with no provision for discount, there is no evidence that it did so in the Relevant Period. On the contrary, AGL’s response to a notice issued by the ACCC under s 155 of the CC Act indicated that the “energy plans” which it offered during the Relevant Period all involved discounts (varying between 3% and 25%) and made no mention of a no discount product.

120    The only evidence about such a product was that contained in Mr Jaski’s report concerning the origins of the Category 3 and Category 5 Consumers. Mr Jaski’s evidence would support a conclusion that AGL had offered a market contract with no discounts at some time in the past with the effect that some consumers continued on those market contracts up to the time that they commenced as Category 3 or Category 5 consumers. It does not however support a conclusion that market contracts without discounts were offered, or even available, at the time AGL made the statements said to give rise to the Initial Representation.

121    AGL submitted that the affidavit of Mr Wijemanne, a Pricing Operations Analyst, indicated that a no discount product was available. In [7] of his affidavit, Mr Wijemanne deposed:

Other than “back office” employees who handle billing exceptions, the only rate category that can be allocated to customers (excluding AGL employees and multi-site customers) who enter into a market contract with AGL, using a current campaign matrix, is the then current rate category.

However, it is plain that this passage is not directed to no discount products and in my opinion, it cannot reasonably be construed as evidence that they were available during the Relevant Period.

122    It seems inherently improbable that AGL would have offered market contracts without discounts in the Relevant Period when, at the same time, it was offering and promoting plans with guaranteed discounts.

123    I also observe that the term “energy plan” had been defined by the ACCC in its first notice under s 155 of the CC Act in a way which excluded no discount products:

Energy Plan means an energy plan for the sale and supply of electricity by AGL to a customer, excluding an energy plan for the sale and supply of electricity under which there is no discount off energy usage charges and/or supply charges.

(Emphasis added)

AGL had adopted that definition in its responses to the ACCC notice. The same meaning appears to be incorporated into AFTS [14]. There is no indication that the term had been used with any other meaning, either in the communications between the parties, or in the pleadings.

Is the Initial Representation ambiguous?

124    AGL submitted in the alternative that, if the pleading of the first formulation of the Initial Representation was not nonsensical, it was at least ambiguous. This was said to be so because the term “not under an energy plan” in the lower case could be understood as a reference to a market contract with no discount or to a standing contract and the AFTS did not indicate which was intended.

125    This submission fails for the same reasons which I gave in respect of AGL’s submission as to nonsensicality. AGL did not establish the premise on which the submission was based because there is no evidence that it offered a market contract with no discount in the Relevant Period.

126    Next, AGL submitted that the reference to its “energy usage charges” in the second formulation of the Initial Representation involved ambiguity because it had a large number of different rate categories at the time of the Mid-2012 and Mid-2013 Rate Increases. This meant that there was uncertainty as to the charges to which the alleged Initial Representation related. AGL pointed out, by way of example, that immediately before the Mid-2013 Rate Increase it had nine different rate categories by which electricity usage charges to residential customers were calculated: Categories 1, 2 and 8; Category 3; Category 5; Category 10; Category 13; Category 14; Category 17; the Category 7 and Lower SRC Rates; and the Higher SRC Rates. It said that this uncertainty also affected the ACCC formulation of the Mid-2012 and Mid-2013 Discount Representations.

127    I consider this critique of the second formulation of the Initial Representation to be unsound. An obvious point is that the submission overstated the number of different AGL rates at the times the Initial Representation is said to have been made. The Lower and the Higher SRC Rates had not been introduced at the time AGL made the statements said to give rise to the Initial Representation to Category 5 Consumers and, in relation to the Category 3 Consumers, none of the 2013 Rates, the Category 5 Rates and the Category 12 Rates had been introduced at the time that the Initial Representation is said to have been made to them.

128    Further, as Senior Counsel for AGL acknowledged, Rate Categories 10, 13, 14 and 17 are anomalous as they appear to be applicable to premises of an atypical kind. This means that during the Relevant Period, AGL was supplying electricity under energy plans to which the inactive Rate Categories 1, 2 and 8 (which were identical) applied, under energy plans to which Rate Categories 3, 5, 7 and 12 applied, and under its SRC. With the exception of the Category 3 Rates after the Mid-July 2012 Rate Increase and the Category 12 Rates, the rates in Categories 3, 5, 7 and 12 and the SRC Rates were identical in the Relevant Period. Accordingly, much of the diversity to which AGL referred in this submission of ambiguity did not exist. However, there was a difference between the Category 1, 2 and 8 Rates, on the one hand, and the Category 3, 5, 7 and 12 Rates and the SRC Rates, on the other.

129    More fundamentally however, AFTS [22] and [24] contain a pleading of the representation of what the CSR and Welcome Pack Statements conveyed to the persons who became Category 3 and Category 5 Consumers. That representation, if made, was not subject to a pleading rule of the kind contained in r 16.02(2)(c) of the Federal Court Rules 2001. AGL was not precluded from making a representation which was ambiguous.

130    Further still, if there be ambiguity, it would seem to arise from AGL’s own conduct. It did not inform consumers of the Rate Category to which they had been allocated, only of the particular rates which would apply in their case. Consumers were not told that those rates were “Category 3 Rates” or “Category 5 Rates”, as the case may be. Despite this, AGL must have considered that its offers to consumers of a discount from “your energy usage charges” was sufficiently clear to consumers so as to be capable of being understood and assessed by them.

131    For these reasons, I reject AGL’s present submissions concerning the ambiguity of the pleaded Initial Representation.

A representation that the SRC rate would apply?

132    Next, AGL characterised the first formulation of the Initial Representation as an allegation that it had represented to the persons who became the Category 3 and Category 5 Consumers that “the rates for their energy usage charges (to which their discount would be applied) would be the same as rates used for energy usage charges for the regulated standing contract”. On this view of the matter, AGL submitted that the ACCC case necessarily depended upon importing into the CSR Statements and the Welcome Pack Statements two further statements to the following effect:

(i)    The discount offered to consumers would, in effect, be applied to the rates for energy usage charges under a standing contract (from time to time); and

(ii)    Such a discount would be so applied for the duration of the energy plan (howsoever rates for energy usage charges under an energy plan might vary relevant to standing contract rates).

It also characterised the ACCC claim of silence by misrepresentation as a claim that it had “failed to disclose that the rates under energy plans had come to exceed the rates under the standing contract”.

133    AGL then went on to make a number of criticisms of the ACCC case on this characterisation of its allegation:

(i)    The impugned statements made no explicit reference to standing contract rates, let alone stating that the rates for the energy usage charges would be tied to standing contract rates;

(ii)    The ACCC case necessarily assumed that SRC Rates would always be below the equivalent (undiscounted) energy plan rates;

(iii)    Comparison with SRC Rates does not arise by necessary implication for consumers who were not previously on a standing contract;

(iv)    Even in respect of consumers switching from a SRC to an energy plan, the CSR Statements and the WP Statements relating to the discount offered to consumers were forward looking rather than retrospective, and hence not capable of being understood as referring back to an energy rate agreed in the past;

(v)    AGL had made clear that it would vary the rates under the energy plans;

(vi)    Even without the express statements by AGL that it could vary the rates, there is no basis upon which the ordinary or reasonable consumer could have understood that a discount related to the SRC Rate would endure for the entire term of their energy plan “pegged” to an amount referrable to the SRC Rate;

(vii)    The representations necessarily relied upon by the ACCC as essential to its case went beyond construction or implication and into the realm of inference and assumption;

(viii)    The rates to which the agreed discount were to apply were set out in the Welcome Pack without any suggestion that these were related to the SRC Rates;

(ix)    The ACCC had not shown any basis upon which it could be concluded that Category 3 and Category 5 Consumers were aware of, and attached significance to, the coincidence of the Category 3 and Category 5 Rates respectively with the SRC Rates at the time of commencement of their plans.

134    As is apparent, this critique was made on the assumption that all Category 3 and Category 5 Consumers understood the Initial Representation in the sense of the first of its pleaded formulations. However, as noted, the ACCC case was that that formulation applied only to those who were aware that AGL could supply electricity to them whether or not they agreed on an energy plan. That position became clear only during the course of the trial.

135    Once the first formulation is understood as limited to those consumers, many of AGL’s criticisms lose their force. The circumstance that the CSR Statements made no express reference to the SRC rates is immaterial as, at least in the case of those who had been on SRCs, that formed part of the context in which the negotiation between the consumers and the CSRs occurred. Some of those who had not previously been on SRCs are also likely to have had a general understanding of standing contracts.

136    Much of AGL’s critique seemed to be based on the premise that consumers were aware that it would allocate them (or had allocated them) to a particular rate category. If that premise be accepted, then there may be at least some basis for AGL’s critique. However, the premise is unsound. In my opinion, the great majority of Category 3 and Category 5 Consumers would not have had a understanding, at the time of their agreements with the CSR or when receiving their Welcome Pack, that AGL had allocated them to a particular rate category. The CSRs made no reference to categories of rates at all, let alone to a particular category by name or designation. Nor did the Welcome Packs contain (at least expressly) any such reference. There was nothing to suggest to the existing AGL customers that, by agreeing on an energy plan, they would be “moved” from one rate category to another. Further, if these consumers had visited AGL’s website they would have seen that the rates notified to them in the Welcome Pack were the same as AGL’s SRC rates.

137    It is also pertinent that the CSRs’ sales pitch to consumers did not present the choice to them as one between a “market contract” and a SRC. The CSRs’ offers to consumers were in terms of an “energy plan”. They did not speak of offering a “market contract”, a term which is likely to have conveyed a different connotation to consumers. Other than in limited respects, the Welcome Packs also referred only to “energy plans”. In my opinion, the terminology used by the CSRs and in the Welcome Packs would have encouraged an understanding by those consumers who had been on a SRC that the essential aspects of their relationship with AGL were not changing save only that, by agreeing to commit to AGL for the two year term, they could obtain cheaper electricity.

138    In my opinion, the AGL submissions failed to have regard to these important matters of context.

139    Having addressed these particular critiques of the pleaded Initial Representation, it is appropriate to return to some more general matters.

The information as a whole and in context

140    The information provided to the Category 3 and Category 5 Consumers was not limited to that contained in the CSR Statements.

141    It was an agreed fact that, in accordance with the call scripts, the CSRs made two additional statements to each Category 3 and Category 5 Consumer, namely:

(a)    You have 10 business days cooling off which allows you to cancel this offer without fees and charges, by ringing AGL directly on 131 245 and this period starts from when you receive your Welcome Pack;

(b)    Your Welcome Pack will include all the terms, conditions, tariffs and rates including information about AGL’s ability to vary these with notice. Would you like me to read the rates and other fees to you now or I can send them to you?

142    All Category 3 and Category 5 Consumers in the Relevant Period declined the CSRs’ offers to read the rates and fees over the telephone. I note that in the taped telephone conversation with the CSR, Consumer Six said, when declining the offer, “it would be easier for me to read [them] than to have you read them all out”. It is reasonable to suppose that all the other consumers took a similar view.

143    The parties were agreed that in some of the telephone conversations between CSRs and Category 3 Consumers in the period between on or about 7 June 2012 and on or about 30 June 2012, CSRs made a further statement in accordance with AGL’s Best Practice Procedure. That further statement was:

I’m happy to quote you prices as they are today, but I need to inform you that all of our prices are currently under review and will increase on 1 July 2012. This follows a review of our prices including the cost of providing energy to our customers.

144    AGL submitted that, by the statements of the CSRs, the attention of consumers was drawn to the rates which would apply in their particular case, to the means of ascertaining those rates and to AGL’s ability to vary the rates upon notice.

145    AGL also emphasised a number of aspects of the Welcome Packs, including:

(i)    The statement in the Welcome Letter that the consumer would “now enjoy … Fair deals – our Movers Guarantee, Fair Pricing and Fair Contracting Promises help ensure you’ll always get a fair deal from AGL”;

(ii)    The inclusion of the rates schedule in the Offer Summary under the heading “Your electricity rates”. Counsel emphasised the word “Your”;

(iii)    The Offer Summary informed consumers that their bills would show the GST exclusive rates and that GST would be added to the totals;

(iv)    The Offer Summary included the statement “we may vary your rates, charges, tariff structure, billing frequency, and the terms of this Energy Plan at any time by writing to you”. Again, Counsel emphasised the word “your”;

(v)    The Customer Charter included the statement “our mutual rights and obligations are covered by your General Terms as well as specific regulations and codes”;

(vi)    Statements in AGL’s Product Disclosure document under the heading “Things to know”, being:

4.    The prices, charges, tariffs and service levels that will be applicable in respect of the customer sale contract.

See the Offer, General Terms and Fee Schedule.

5.    If the prices, charges, tariffs or service levels are able to be changed by the Retailer under the customer sale contract, the manner in which any such change may be effected.

We may vary the charges for gas and/or electricity under your Energy Plan at any time by giving you prior written notice.

    …

9.    The Early Termination Fees which may apply in the event that the customer terminates a fixed-term customer sale contract prior to its expiry date and the method of calculation of those charges.

…

    Early Termination Fees may be waived under AGL’s Movers Guarantee, Fair Pricing Promise and Fair Contracting Promise. See General Terms for details.

(vii)    Statements in the General Terms document which included, in Version 2:

6.2    Variation of Charges

We may, by giving you prior written notice … vary the Charges or impose new fees or charges to reflect one or more of the following …

6.3    CPI increases

We may, by giving you prior written notice … vary your Charges by the percentage change in the CPI since the later of the Acceptance Date and the date of the most recent CPI increase under this clause 6.3.

6.4    Variation of applicable tariff category

(a)    The continued application of the category of tariff that formed the basis of the Offer and Charges payable under this Energy Plan depends on …

6.5    Variation of charges generally

We may vary your Charges for any reason by giving you prior written notice (which may consist of a statement on your bill).

6.6    Fair Pricing Promise

If we vary your Charges so that they are more than the greater of:

(a)    The Published Tariff; or

(b)    The amount the Charges would be if we had varied them by the percentage change in the CPI since [the] date they became applicable,

then you may elect to terminate this Energy Plan in accordance with clause 12.

Versions 1 and 3 of the Welcome Pack contained terms to (relevantly) similar effect.

146    Counsel for AGL submitted that the references to “your” rates were an indication to the consumer that the rates to which AGL was referring were the rates applicable to that consumer rather than to rates applying generally or to the rates applicable under AGL’s SRC; that consumers had been alerted to the possibility that AGL could vary those rates; that [6.4(a)] of the General Terms which referred to “the category of tariff that formed the basis of the offer” was an indication that a particular rate category applied, or may apply, in the consumer’s case; and that the Fair Pricing Promise indicated that those rates could be varied in a way which departed from the SRC rates. He contended that regard had to be had to all of these matters in assessing the representation conveyed by the CSR Statements and the WP Statements. Counsel noted in this respect ACCC’s own plea that, to the extent that the Initial Representation was implied, it was to be implied “from the entirety of the Welcome Pack and, in particular, the Welcome Pack Statements.”

147    AGL submitted that, just as persons are bound by a contract in writing which they have signed, or of which they have had reasonable notice, because they are taken to have read and accepted its terms and conditions (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [45]), so those Category 3 and Category 5 Consumers who received the Welcome Pack and did not cool off must be taken to have represented to AGL that they were familiar with, and accepted, all of the other material matters in the Welcome Pack. This included a representation of their awareness that the rates applicable to their contract may vary in a way which departed from the SRC Rate. However, AGL acknowledged that this was a representation which was imputed, rather than actual, and one imputed for purposes of the law of contract.

The Dominant Message

148    AGL’s submission that regard should be had to all of the matters bearing on the effect of its communications with the Category 3 and Category 5 Consumers is correct. When the alleged misleading or deceptive conduct consists of words, it is inappropriate to select some words only and to ignore others which provide the context giving meaning to the particular words: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199.

149    However, this does not mean that all matters communicated by a representor are to be taken to have the same weight or effect, or that later qualifying words will neutralise the effect of an earlier misrepresentation. Some words and representations may have a more dominant effect than others. That effect may be so dominant or persuasive as not to be neutralised by other statements made on the same occasion, or as part of the overall representation, which are less prominent. The ACCC invoked the concept of the dominant message, contending that the offered discount in conjunction with the fixed term gave rise to such a message.

150    Aspects of this issue were considered by the High Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640. Advertisements of TPG displayed prominently an offer to supply a broadband internet service for $29.99 per month but other less prominent statements in the advertisements qualified that offer by requiring the consumer, at an additional cost, to “bundle” the service with other telephony services. The question in the case was whether the prominent and misleading statement in the advertisements was saved from that effect by less prominent qualifications stated elsewhere in the advertisements. The majority of the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ) upheld the decision of the trial Judge that the advertisements were misleading or deceptive. The majority said:

[51]    [T]his is not a case where the tendency of TPG's advertisements to lead consumers into error arose because the target audience might be disposed, independently of TPG's conduct, to attend closely to some words of the advertisement and ignore the balance. The tendency of TPG's advertisements to lead consumers into error arose because the advertisements themselves selected some words for emphasis and relegated the balance to relative obscurity. To acknowledge, as the Full Court did, that "many persons will only absorb the general thrust" is to recognise the effectiveness of the selective presentation of information by TPG. …

[52]    It was common ground that when a court is concerned to ascertain the mental impression created by a number of representations conveyed by one communication, it is wrong to attempt to analyse the separate effect of each representation. But in this case, the advertisements were presented to accentuate the attractive aspect of TPG's invitation relative to the conditions which were less attractive to potential customers. That consumers might absorb only the general thrust or dominant message was not a consequence of selective attention or an unexpected want of sceptical vigilance on their part; rather, it was an unremarkable consequence of TPG's advertising strategy. In these circumstances, the primary judge was correct to attribute significance to the "dominant message" presented by TPG's advertisements.

(Citations omitted)

151    AGL submitted that the concept of dominant message was inapplicable in this case and sought to distinguish TPG Internet on several bases. The ACCC does not allege that the Initial Representation was misleading or deceptive at all. Secondly, the advertisements made by TPG were made publicly and described at [47] as “an unbidden intrusion on the consciousness of the target audience” whereas, with the possible exception of those who had telephoned AGL with the intention of cancelling their supply arrangements or to complain or query some aspect of their present supply, the CSR Statements were made to persons who were, at the time of their call, seemingly willing to contract with AGL for the supply of electricity. Related to this consideration is that, unlike the representations in TPG Internet, the CSR Statements were not made to bring consumers into initial negotiations with AGL.

152    It was not necessary for the Court in TPG Internet to consider the effect of the other information available to the consumers before entering into a contract for the supply of internet services. This was because:

[50]    It has long been recognised that a contravention of s 52 of the TPA may occur, not only when a contract has been concluded under the influence of a misleading advertisement, but also at the point where members of the target audience have been enticed into "the marketing web" by an erroneous belief engendered by an advertiser, even if the consumer may come to appreciate the true position before a transaction is concluded. That those consumers who signed up for TPG's package of services could be expected to understand fully the nature of their obligations to TPG by the time they actually became its customers is no answer to the question whether the advertisements were misleading.

(Citations omitted)

153    In addition to making these points of distinction, AGL emphasised the last sentence in [50]. It submitted that the Category 3 and Category 5 Consumers could, by reading the Welcome Pack itself, and by making other comparisons readily available to them, have understood fully the true position with respect to their rates.

154    I agree that there are relevant distinctions between this case and TPG Internet. But that does not mean it is inappropriate to have regard to the dominant effect of the CSR and WP Statements when considering what was, in context, represented to the Category 3 and Category 5 Consumers. Despite AGL’s submission, I consider that the cases concerning advertisements which contain a prominent misleading representation qualified by a later less prominent representation do provide assistance by analogy. Those cases indicate that, in general, the qualifying information must be sufficiently clear and sufficiently prominent if it is to neutralise the misleading effect of the primary statement: Medical Benefits Fund of Australia Ltd v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1 at [37]; National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 at [51]. Account must be taken of the tendency of consumers to absorb the general thrust of what is communicated to them rather than the detail, even when that detail is contained in writing. As Murphy J observed at first instance in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2011] FCA 1254 at [59], the degree of prominence required to dispel a false dominant message increases with its potential to mislead. When the disparity between the primary message and the true position is great, attention must be drawn to the true position in the clearest possible way.

155    In the present case the offered discount in consideration for the consumer’s commitment to AGL for the fixed term was, in my opinion, the dominant part of the statements made by the CSRs. That is evident in the call scripts. It also evident in the six taped conversations of the CSRs with consumers. With one exception, in each case, the CSR commenced the relevant part of the conversation by telling the consumer of the percentage discount offered and the two year term, and only then continued with other features of the plan. These were that the discount would be from the consumer’s energy usage charges, that there was a maximum “exit fee” of $75.00, that the consumer would receive a Welcome Pack and that the consumer had 10 business days after receiving the Welcome Pack in which to cool off. The CSRs did not mention “rates” until after the callers had indicated their willingness to enter into the offered plans. The responses of the consumers indicate that it was the offered discount which they found attractive.

156    The exception which I mentioned is the conversation with Consumer Five who was already on an energy plan. The two year term was mentioned later in the conversation with that consumer but that may be attributed to the fact that the consumer was negotiating for a higher discount.

157    AGL submitted that the dominant message on which the ACCC relied was a matter of implication or inference and accordingly logically contradictory. I do not accept that submission. The dominant message was contained in the express words of the CSR Statements and the WP Statements.

158    A conclusion that the discount was at the heart of the message conveyed by the CSR Statements and the Welcome Pack Statements is not counter intuitive. The report of Mr Price at [42] refers to a market survey indicating that price was “overwhelmingly the main driver of [consumers’ decisions] to change supplier”. The survey also indicated that “all retailers viewed price as the single biggest factor in a pitch to a new customer”. The survey to which Mr Price referred for these statements was carried out in 2008, some 3-4 years before CSR and WP Statements were made. However, there is no reason to suppose that there has been a change of consumer attitude in the interim. I observe that in another context (the submissions concerning misrepresentation by silence) AGL itself submitted that the matter of “predominant relevance and interest to consumers was their energy usage charges, and not their rates”.

159    It is also pertinent to the assessment of the dominant effect of the CSR Statements that they were made in the course of one on one telephone conversations and in the context of the CSR seeking to have consumers agree then and there to enter into an energy plan with AGL. In that context, it is natural to conclude that consumers would have paid particular attention to the offer of a discount, and to the amount of that discount.

160    In [52] in TPG Internet, the majority appear to suggest that consumers’ absorption of only the general thrust of an advertising message by reason of “selective attention or an unexpected want of sceptical vigilance on their part” may indicate that an advertisement did not have a dominant message. Considerations of that kind cannot be said to be pertinent presently and I did not understand AGL to suggest that they were.

161    I do not consider that the other statements in the Welcome Pack to which AGL drew attention can reasonably be regarded as neutralising the impression engendered by the CSR Statements. On the contrary, the overall thrust of the Welcome Packs is likely to have confirmed the consumers’ understanding from the CSR Statements. As already noted, the Welcome Letters confirmed that the consumer would receive a discount from “usage charges”, something which consumers would reasonably have expected in any event. The Letters do not give any indication that the charges would or may vary from customer to customer by some factor other than the consumers’ individual levels of consumption and did not purport to qualify in any way the CSR Statements.

162    The Welcome Letters assured the consumer that he or she “can feel good knowing that you joined over 3 million account holders who have also chosen AGL” for, amongst other things, “competitively” priced energy. That statement would have tended to reassure consumers that the prices they would be charged would be competitive.

163    The Welcome Letters did refer to AGL’s Fair Pricing and Fair Contracting Promises, saying that these would help ensure that the consumer would always get a “fair deal” from AGL. Again, this is a statement of a reassuring kind. It is pertinent however that the reference to the Fair Pricing Promise (upon which AGL particularly relied in this submission) did not indicate anything about the content of that Promise, let alone forewarn consumers that an inference could be drawn from it that the rates which would apply in their case may not be AGL’s generally prevailing rates, or that AGL had more than one set of rates applicable to residential premises.

164    The Welcome Letters did not indicate to consumers where they could locate the Fair Pricing Promise and the Offer Summary did not contain any reference to it. The Promise was in fact located, in Version 2 of the Welcome Pack, in cll 6.5 and 6.6 on page 23 of the brochure containing AGL’s General Terms. These clauses are set out earlier in these reasons.

165    Reading the General Terms to cll 6.5 and 6.6 would have required more than usual persistence by consumers. Depending on the sequence in which consumers read the documents comprising the Welcome Pack, they may have had to read up to 50 pages before finding the Fair Pricing Promise in cl 6.6 of AGL’s General Terms. Had a reader got that far, he or she would not have seen an express indication that the rates in his or her case may be different from the rates which AGL applied to consumers generally, or different from the rates under AGL’s SRC. Such a consumer would have seen only that, if the rates when varied by AGL were greater than the higher of two rates, one of which was the “Published Tariff” and the other a rate which would not readily be calculable by a consumer, he or she could, on notice, terminate the contract. The consumer would then have had to go on a further 19 pages in the General Terms to find the definition of “Published Tariff” to learn that it meant, in one of its alternatives, the “Charges” (not the rates) payable under AGL’s “Standard Retail Contract” applicable to the “Supply Address”. The consumer would then have had to read still further to find the definitions of those terms. He or she would have had to note that the term “Charges” was defined to mean “charges, fees and other amounts payable by you as set out in these General Terms, the Offered Fee Schedule, or any applicable Ancillary Product terms and conditions” and did not include any specific reference to “rates”. If the reader was sufficiently astute, he or she may then have inferred that AGL’s ability to vary its charges included the ability to vary its rates in a differential way so that they no longer matched its SRC Rates. However, consumers who were not on the lookout for this possibility are in my opinion unlikely to have appreciated that AGL’s General Terms left open this possibility.

166    The inference which AGL submitted should be drawn may be obvious to a lawyer intent on investigating this very question but, in my opinion, would not have been obvious to the ordinary consumer. I find that it is improbable that the ordinary reasonable Category 3 and Category 5 Consumer would have gone through the process I have outlined and have come to that understanding of the position.

167    The task for the astute consumer receiving Versions 1 or 3 of the Welcome Pack would have been slightly easier. Clauses 6.5 and 6.6 in those Welcome Packs provided as follows:

[6.5]    Variation of Charges Generally

    Subject to clause 6.9, we may vary your Charges or introduce new Charges for any reason.

[6.6]    Fair Pricing Promise

    If we vary your Charges so that your total bill is higher than it would be under our Standard Retail Contract applicable to the Supply Address, then you may elect to terminate this Energy Plan in accordance with clause 13.

As can be seen, the terminology in cl 6.6 adverted to the possibility that the consumer’s charges may be higher than would be applicable if a SRC applied.

168    Again, however, the task for the consumer in reading through the documentation in the Welcome Pack to locate cl 6.6 was not insignificant. That is especially so given the absence of anything to alert the consumer to the fact that he or she might find in cl 6.6 an indication that AGL contemplated applying in his or her case a category of rates which differed from the rates under the SRC.

169    I should also mention cl 6.4 of the Welcome Pack to which Counsel for AGL drew attention. That clause indicated that the continued application of the “Category of Tariff” which formed the basis of AGL’s offer depended on the continuance of a number of circumstances. AGL submitted that this too should have indicated to consumers that it had more than one category of rate. That may be so. However, for similar reasons given in relation to the Fair Pricing Promise contained in cl 6.6, I do not consider that cl 6.4 can be regarded as detracting from the dominant message communicated by the SCRs and the Welcome Packs to consumers.

170    It is true that cll 6.4 to 6.6 in the General Terms were “there to be read”, using the words of Gleeson CJ, Hayne and Heydon JJ in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [49] upon which AGL relied. However, Butcher concerned a representation made to the purchasers of a property in a real estate sales brochure rather than to the large number of consumers to whom AGL’s General Terms were directed. Further, the circumstances just summarised distinguish the present case from cases such as Butcher in which the disclaimer, being contained in a short document with little printed content, is readily apparent.

171    It is particularly pertinent in my opinion, that the statements in the Welcome Pack upon which AGL relied were not made contemporaneously with the CSR Statements giving rise to the consumers’ initial impression. Nor were they made orally, which may have served to bring to the consumers’ attention the fact that AGL had different sets of rates which may not always be uniform. By the time consumers received the Welcome Packs they had already “committed” themselves to AGL on the basis of their initial impression created by the CSRs’ sales pitch. The WP Statements were plainly not adapted to “undoing” or correcting that impression. In some circumstances consumers may give more attention to a written document than to oral statements, but that is not this case.

172    For these reasons, I do not accept that the Welcome Packs should be regarded as having neutralised the impression created in particular by the CSR Statements.

“Your” rates and “Your” usage charges

173    AGL emphasised the repeated references in the CSR Statements and the Welcome Pack Statements to the discount being off “your” energy usage charges and the reference in the Welcome Packs to “your rates”. It submitted that the consumers were thereby being told only that the discount would be from the amount which they would be charged by AGL for their individual electricity usage and that there were rates applicable to their particular supply.

174    In my opinion, AGL’s repeated use of the personal pronoun does not have the effect for which it contended. In the first place, use of the personal pronoun is commonly used by marketers to give a personalised connotation to a promotional message. AGL’s consumers are likely to have understood its use of the personal pronoun in that way. That is especially so given their awareness that AGL supplied electricity to vast numbers of South Australian homes, making it impractical for AGL to have a bespoke arrangement about rates with each consumer. It would not have crossed the minds of the ordinary and reasonable consumer that, by its reference to “your rates”, AGL was conveying that the rates it notified to that consumer were distinctive. It is much more natural for such consumers to have understood that AGL was referring to the rates of general application which applied in their case.

175    The reference in the Welcome Packs to “your General Terms” is an example of this kind of usage. The General Terms were plainly not particular to the individual consumer as it is apparent on their face that they are applicable to AGL’s supply of electricity in New South Wales, Queensland and Victoria as well as in South Australia.

176    Secondly, the consumers would have well understood that the amount that they would be charged for the supply of electricity would vary according to their usage. That has long been the case and is the ordinary experience and expectation of consumers. They would therefore have understood that the discount would be from the amount charged to them calculated by reference to the quantity of electricity they consumed. However, in my opinion, it is another thing altogether to suppose that consumers would have understood that those charges would vary according to some other factor and, in particular, because the rates which AGL chose to apply in their individual case would not be rates which were generally applicable.

177    The evidence did not disclose the location of the CSRs speaking to the Category 3 and Category 5 Consumers. There is accordingly no need to consider whether, because of their location, they used the personal pronoun in a generic way, that is, as referring to the rates applicable in South Australia as “your” rates.

178    In relation to the Initial Representation, I conclude that the personal pronoun indicated to consumers only that the discount would be from their own individual consumption.

Consumer assumptions

179    Looked at objectively, it is obvious that the rates used to calculate the energy usage charges to which the offered discount would apply were critical to the amount which consumers would ultimately pay for their electricity. Yet it is a stark feature of the present case that none of the six consumers (who were said to be a “fair sample” of callers) made any enquiry about the rates which would be used by AGL to calculate its charges. Nor did they make any enquiry or comment indicating an awareness that AGL may have two or more sets of charges so that it was important to know which were to be applied in their case.

180    Consumers appear to have treated the size of the discount and their commitment to AGL for a fixed term as the critical features of the offered plans. The ACCC submitted that it was reasonable to infer that consumers had understood that AGL was offering a discount from charges determined by its generally applicable or usual rates. Counsel elaborated this submission by contending that consumers would have understood AGL had a “usual price” for electricity and would have expected that AGL had “one set of prices for energy used, one set of rates”. It was because of the understanding or expectation, whether conscious or unconscious, that AGL had a usual price that consumers had not made any further enquiries.

181    The ACCC submissions on this topic tended to use different terminology, referring sometimes to a “usual price”, sometimes to “one set of rates”, sometimes to “the full price product”, and sometimes to a “rack rate”. The ACCC acknowledged, however, that a supplier of electricity may have a different usual price for different categories of customer.

182    AGL submitted that there was no evidence to support the understanding or assumption for which the ACCC contended and that it amounted to no more than speculation. The circumstance that consumers had not enquired about the rates which would be used to calculate their charges was just as consistent, it submitted, with them being content to agree on the offered energy plan knowing that they could consider and compare the applicable rates when they received the information in writing, especially given that they had been informed of their right to cool off.

183    AGL also submitted that the alleged understanding or assumption was inconsistent with the developing consumer awareness of a competitive electricity market and with experience of those consumers who had, before 2012, been on a market contract with AGL or another retailer. It submitted that consumers with that experience are likely to have known that prices, using that word in a general sense, were varying not only from retailer to retailer but within an individual retailer, especially a large retailer such as AGL.

184    I consider that, for the purpose of determining whether the CSR Statements and WP Statements gave rise to the alleged Initial Representation, it is appropriate to conclude that many ordinary and reasonable consumers did assume, whether consciously or unconsciously, when they heard the offered discounts, that those discounts would be from their electricity usage charges calculated by reference to rates of AGL which were generally applicable to consumers like themselves. That is not the same thing as an assumption that AGL had a single set of rates: only an assumption that the discount would be from charges calculated by use of rates which AGL applied generally to residential consumers like themselves.

185    As noted, AGL submitted that the evidence to support the particular understanding or assumption for which the ACCC contended is lacking. However, the evidence (and the inferences from the evidence) which warrant the conclusion that large numbers of the Category 3 and Category 5 Consumers did make the assumption to which I have referred are these:

(i)    The very size and nature of AGL’s operations (about which consumers can be taken to be aware in a general way) made it probable that it would have rates of general application;

(ii)    No consumer enquired about the possible existence of different rates or, when told by the CSR about the rates, made any enquiry indicating an awareness that those rates may be distinctive in his or her case;

(iii)    It was the size of the discount and the period of the commitment to AGL which appear to have prompted consumers to accept the offered energy plans;

(iv)    Consumers are likely to have accepted, consciously or unconsciously, that AGL’s electricity rates were not a matter for individual case-by-case negotiation. Because the rates were “fixed”, AGL was offering discounts from the charges calculated by reference to those rates in order to attract and retain customers;

(v)    The survey of consumers in 2008 to which Mr Price referred in his report at [43] reported that retailers’ price offers in South Australia were predominately, although not exclusively, expressed with reference to the standing offer, for example, by offering a discount on the standing offer price. There was no evidence that this was still the case in 2012. Nevertheless I consider it reasonable to suppose that many of those who became Category 3 and Category 5 Consumers had some awareness of retailers’ past practices with discount offers and this would have fed their assumption as to the effect of AGL’s offer;

(vi)    Each of the Category 3 and Category 5 rates were, at the time they were offered to consumers, the same as the prevailing SRC rates. There was accordingly no need for anyone to remark on a difference, or even to note a difference;

(vii)    Any consumers who, upon receiving the Welcome Packs, compared the rates notified to them with the SRC rates on AGL’s website would have found that they were identical;

(viii)    The alternative explanation proffered by AGL for consumers’ omission to make any inquiry about the rate which would be applied in their case is not persuasive. As the conversations with the six consumers are said to be a fair sample of the Category 3 and Category 5 Consumers, AGL’s explanation is, in my view, implausible;

(ix)    As already seen, I do not accept AGL’s submissions about the significance to be attached to its repeated use of the personal pronoun.

186    At the time that the Initial Representation was made to the Category 3 and Category 5 Consumers, they did not have the 2012 and 2013 Rate Increase Letters. However, it is convenient to refer to an aspect of these Letters now as they too would have confirmed to consumers that AGL had rates of general application. That is so because:

(i)    It would have been very apparent to consumers receiving the 2012 and 2013 Rate Increase Letters that they were of a pro forma kind which, of itself, would have suggested that the rate increases AGL advised to them also applied to others;

(ii)    AGL stated in the first form of the 2012 Rate Increase Letter that “the increase for an average AGL residential electricity customer in South Australia equates to around $6.80 (including GST) per week” and to “$7.10 (including GST) per week” in the second form of the letter. That implied that AGL was applying the rate increases it announced to consumers generally;

(iii)    The letters went on to tell consumers that “the actual impact on your bills will depend on the usage at the site shown”. That also implied that the rate increases applied uniformly by indicating that the only matter which would bear on the effect in dollar terms of the increase for the particular consumer was his or her usage.

187    However, it is one thing for the ordinary and reasonable consumer to have understood that AGL had rates of general application. It is another thing to have understood that AGL had only one set of rates.

188    The ordinary and reasonable Category 3 and Category 5 Consumer may be taken to have been aware, at the time of the Initial Representation, that the provision of some services is subject to requirements known as universal or community service obligations by which services must be provided to all consumers, wherever located, at the same cost. The postal and some telephony services are examples. However, the supply of electricity has not been subject to a similar obligation for many years. The ordinary and reasonable consumer is, in my opinion, likely to have accepted that the price at which a retailer may supply electricity may vary according to a number of matters including a consumer’s location, the source of electricity supplied to the particular consumer, and the varying costs of different source of supply. I consider that the ordinary and reasonable consumer would also be aware that some retailers have particular tariffs applying to particular kinds of usages at particular times of day, for example, for hot water heating. In addition, the ordinary and reasonable consumer can be taken to have had some knowledge of the increasingly competitive nature of the market for the supply of electricity to residential consumers.

189    In my opinion, ordinary and reasonable consumers would have taken account of these considerations and would not have understood or assumed that AGL had a single set of rates. Instead, they would have understood only that the rates which AGL would charge them would be rates applying generally to residential consumers like themselves so that they would be treated in the same way as other AGL customers.

190    It will be necessary to return to aspects of the consumers’ assumptions when considering whether the Mid-2012 Rate Increase Letter was false or misleading. For present purposes, I am satisfied that part of the context in which the CSR Statements and WP Statements were made to the sub-classes identified by the ACCC included the identified assumptions made by the Category 3 and Category 5 Consumers.

AGL’s right to vary the rates

191    I do accept that the ordinary and reasonable consumer in each category would have appreciated that AGL had reserved to itself the right, on prior notice, to increase its rates from time to time. It can be taken that the ordinary experience of consumers is that rates for utilities such as electricity are varied from time to time, and more often than not, by increases. The ordinary and reasonable consumer would, in my opinion, have had the expectation at the time of their conversation with the CSRs and on receiving the Welcome Packs that price variations of these kinds would occur at appropriate intervals over the two year term of their plans. The CSRs confirmed that expectation, as did the Welcome Packs.

192    If anything, the statements by the CSRs and the Welcome Packs to the effect that AGL may vary the consumers’ rates tends to confirm the appropriateness of the two formulations of the Initial Representation. This is seen most obviously in relation to the Category 3 Consumers who agreed on an energy plan in July 2012 but before 16 July 2012. This was only just before AGL made the Category 3 Rates inactive and increased them above its new active rate, Category 5. It is not reasonable to suppose that AGL intended to convey to these Category 3 Consumers, or that they understood, that the benefits which they would obtain by committing to AGL for a two year term could be lost or diminished almost immediately by AGL’s exercise of its right to vary the rates. I note that AGL did not make a submission that its representations should be understood in this way.

193    In my opinion, consumers’ awareness that AGL was entitled to increase its rates during the two year term says very little about the nature of the representation conveyed by the Initial Representation.

Compliance with the regulatory regime

194    AGL submitted that it had complied with the disclosure requirements of the regulatory regime in place during 2012. The Energy Marketing and the Energy Price Disclosure Codes promulgated by ESCOSA required retailers to provide a number of documents and information concerning their offers of market contracts. The Energy Marketing Code required retailers to provide a “written disclosure statement” to small customers from the entry into a sale contract which, amongst other things, included:

(i)    The prices, charges, tariffs and service levels that were to be applicable;

(ii)    If the prices, charges, tariffs or service levels were able to be changed by the retailer, the manner in which such a change could be effected;

(iii)    The costs to a small customer in entering into the customer sale contract (apart from the prices, charges and tariffs which were payable);

(iv)    The early termination charges that could apply.

195    The Energy Price Disclosure Code required, amongst other things, that:

(i)    For each market contract offer to a small customer, the retailer publish a price fact sheet on its website and provide that price fact sheet to the customer on request. If a marketer had initiated the contract with a customer, then the marketer was bound to inform the customer of his or her right to request the price fact sheet and the retailer was obliged to comply with that request;

(ii)    The electricity price fact sheet for a market contract offered to a residential customer include the estimated annual price of the contract to a customer with annual consumption levels of 2MWh, 5MWh and 8.5MWh (in each case excluding off peak hot water), and 1.5 MWh of off peak hot water;

(iii)    The electricity price fact sheet include the price and price structure of the contract, including the variable usage charge for each tariff step expressed in c/kWh, the supply charge expressed on daily basis, any other fixed dollar amount to be charged, and how the prices charged under the market contract could change during the term of that market contract;

(iv)    The electricity price fact sheet include the amount of any loyalty rebate, entry rebate, account establishment fees, exit fees and direct debit rebate.

196    AGL submitted that the contents of its Welcome Pack complied with these requirements for disclosure. The ACCC did not contend otherwise. AGL contended that it should be difficult for the Court to conclude that its conduct was misleading or deceptive if it met the level of disclosure regarded by the regulatory authorities as reasonable.

197    I agree that the regulatory requirements provide part of the context in which AGL’s conduct is to be considered. However, at least in respect of the claimed Initial Representation, AGL’s compliance does not take the position very much further. AGL may have complied with the regulatory requirements and yet made statements which were false or misleading. Whether or not AGL complied with the requirements of the regulatory codes, the question remains whether, considered as a whole and in context, the effect of its representation to the Category 3 and Category 5 Consumers was misleading or deceptive.

AGL’s construction of the Initial Representation

198    AGL submitted that, in their plain and natural meaning, the CSR Statements and WP Statements conveyed to consumers only that, if they agreed to enter into a particular energy plan for the agreed term, they would in return receive the nominated discount off the energy usage charges (however determined) which they would otherwise be charged.

199    The key words in this formulation are “the energy usage charges they would otherwise be charged”. AGL’s submissions contemplated that the “otherwise” charges would be determined by the rates in the price category to which the consumers were allocated, being the Category 3 or Category 5 rates respectively. However, as already noted, there is no suggestion that the CSRs used the terms “Category 3 Rates” or “Category 5 Rates” to consumers or gave any indication that AGL intended applying a particular category of rates in their case. The CSRs did not commence by telling consumers of the rates which would be applied in their case and then make the offer of a plan with a discount. This makes it unlikely that consumers would have understood the CSR Statements in particular in the way for which AGL contended.

200    Moreover, there is no evidence that AGL contemplated applying Rate Category 3 or Rate Category 5 to consumers other than those agreeing to enter into the offered energy plans. The response of AGL’s solicitors dated 13 August 2013 to the second ACCC s 155 notice asserts that the active rate categories (Categories 3 and 5 in 2012) were “the rate categor[ies] that AGL intended would be allocated to all consumers entering into an energy plan/product (other than the standing contract) with AGL other than in the limited circumstances in which AGL intended that the mirror rate category would be allocated”. This rather suggests that Rate Categories 3 and 5 were confined to those entering into energy plans or products and were not available to consumers who did not agree to an energy plan. In addition, as noted earlier, there is no evidence that AGL offered a no discount product (other than a SRC) in 2012.

201    These circumstances make it unlikely that, from AGL’s perspective, the CSR Statements and WP Statements had the plain and natural meaning for which AGL contended.

202    From the perspective of consumers in subclasses (i) and (ii), it is reasonable to suppose that they would have regarded the representation as referring to the amount which they would pay if they did not agree to commit to AGL for the identified term by entering into an energy plan. After all, that was the essence of the bargain which they were being offered: a discount coupled with the fixed term commitment, on the one hand, or some other arrangement which did not involve those elements, on the other.

203    AGL’s submission was tantamount to a claim that it had represented to Consumers only that they would receive the agreed percentage discount off whatever amount it chose from time to time to charge them for their electricity. In fact, it seems that AGL does claim that that was its entitlement. So much was evident in its contention that it was implicit in the 2012 and 2013 Rate Increase Letters that it could vary its rates, not only from one consumer to another, but even from one supply address to another. It may have suited AGL’s purpose in this litigation to make such a submission but one would not readily suppose that, in 2012, it intended the CSR Statements and the WP Statements to be understood in that way. Perhaps more importantly, given the improbability that AGL intended its prospective customers to have such an understanding, one would not readily construe the CSR Statements and the WP Statements as conveying such a meaning to consumers. If it were otherwise, the sales pitch which AGL made to consumers would have been significantly diminished.

204    For these reasons, I do not accept the AGL’s submission as to the effect of the CSR Statements and the WP Statements. I note however, that if the term “charges … they would otherwise be charged” is understood as a reference to the charges which the consumer would be charged for a supply of electricity otherwise than under an energy plan, the AGL formulation is not relevantly different from the first formulation of the Initial Representation (“not under an energy plan”).

Conclusion with respect to Initial Representation

205    I have indicated my satisfaction that each of the Category 3 and Category 5 Consumers included three sub-classes, namely, (i) consumers who were aware that AGL could supply electricity to them without them entering into an energy plan; (ii) consumers, being a sub-set of (i), who were aware that the entry into a standing contract (whether or not they knew it by that name) was the means by which AGL could supply electricity to them if they did not agree to commit to AGL for a fixed term on an energy plan; and (iii) consumers who were not aware that AGL could still supply electricity to them in the event that they did not enter into an energy plan.

206    Consumers understand the attraction of a discount. They may be taken to have understood that a discount involves two elements: a reduction (in this case expressed in percentage terms) and an amount which would otherwise be payable.

207    In that context, I consider that consumers in sub-classes (i) and (ii) would have understood the Initial Representation in the first of the pleaded formulations. That formulation is, reasonably construed, a representation that consumers would receive a discount from the prices which AGL would charge if it supplied electricity to them other than under an energy plan. Put slightly differently but nevertheless to the same effect, it was a representation that the consumer would receive a discount off the prices which AGL would otherwise charge without an agreed energy plan in place.

208    Many of those who had previously been on a SRC are likely to have understood the CSR Statements and the WP Statements in this way, but the sub-class (i) and (ii) consumers are not necessarily limited to consumers of this kind. It is understandable that all those consumers who knew that the alternative to an energy plan was the standing contract would have understood the CSRs’ offer by reference to the rates which they would otherwise be charged under such a contract. For them the choice was whether to stay on, or elect for, the standing contract or to commit themselves to AGL under an energy plan. The inducement to make that commitment was the offered discount “from your energy usage charges”.

209    Consumers who knew that AGL could supply electricity to them without them entering into an energy plan are, in my opinion, likely to have understood that the offered discount related to the charges which would be applicable if they did not agree on an energy plan. That is the kind of evaluation consumers may be understood to have made in deciding to commit to AGL for the two year term. There is nothing in the CSR Statements or the call scripts which would have caused them to think otherwise. I note again in this context that neither the CSRs nor the Welcome Pack made a reference to rate categories by name or description.

210    For the reasons given earlier as to consumer assumptions as to AGL’s rates, I consider it likely that the remaining Consumers (or at least most of them), would have thought that the discount would be from the charges calculated by rates which were generally applicable to consumers like themselves and would have understood the CSR Statements and WP Statements in this way. This means that they would have understood the Initial Representation in the second of the pleaded formulations. This is not a finding that they are likely to have assumed that AGL had only one set of rates applicable to residential consumers: only that they would have assumed that AGL had usual rates which applied to consumers like themselves.

211    Against this lengthy consideration of the pleaded Initial Representation, I turn to consider the ACCC claims of false or misleading representations in 2012 and 2013.

The Mid-2012 Discount Representation

212    As noted earlier, the ACCC claims that the Mid-2012 Rate Increase Letter contained a representation (the Mid-2012 Discount Representation) to Category 3 Consumers that, for the duration of their energy plan, “they would continue to receive their percentage discount” off:

(a)    AGL SA’s energy usage charges that would apply to them if they were supplied electricity by AGL SA not under an energy plan; or

(b)    The energy usage charges for the supply of electricity by AGL SA to residential consumers in South Australia.

The elements (a) and (b) are in the same terms as the formulations of the Initial Representation.

213    The ACCC pleads that the Mid-2012 Discount Representation was false or misleading for Category 3 Consumers by reason that, following the Mid-2012 Rate Increase:

(a)    their energy usage charges were calculated with reference to rates which were higher than the SRC Rates;

(b)    they would not continue to receive a discount off AGL SA’s energy usage charges calculated with reference to AGL SA’s rates that would apply to them if they were supplied electricity by AGL SA not under an Energy Plan;

(c)    their discount in respect of energy usage charges would be calculated by reference to rates for energy usage charges which were higher than AGL SA’s rates for energy usage charges which were applicable to Consumers who were supplied electricity by AGL SA not under an Energy Plan; and

(d)    the energy usage charges for electricity supplied by AGL SA to Consumers would not be calculated by reference to the same rates.

The ACCC case is, in effect, that AGL represented that the discount indicated by the Initial Representation to the Category 3 Consumers would continue, when that was not the case.

214    Some matters do not have to be considered. Some of the ACCC submissions seemed to more applicable to a claim that AGL had represented initially to the Category 3 and Category 5 Consumer that the rates applicable in their case would not be increased in a differential way and that AGL had engaged in misleading conduct by increasing the Category 3 Rates and in Mid-2013 both the Category 3 and Category 5 Rates selectively but without informing consumers of that fact. Thus, in its closing submission, the ACCC submitted:

It can be accepted that ordinary reasonable consumers would expect and appreciate that the cost of just about everything, including electricity, increases over time. Further, it is agreed that CSRs told consumers [that AGL] could vary [its] rates. However, consumers would not take from that that their rates, and consequently their charges, for energy used would be varied in any way differently from any other consumer. They would understand, in the absence of any clear communication, that any increase in rates would be the same for all households.

(Emphasis in the original)

215    However, the ACCC case did not include a claim that AGL had implicitly represented to consumers that the rate increases which it foreshadowed when warning them of its ability to increase rates would be uniform across its various rates categories. There is therefore no occasion to consider whether AGL’s representations were misleading in that respect.

216    The pleaded Mid-2012 Discount Representation did not rely at all on the periodic bills which AGL rendered to its customers which identified the discount applied by AGL in both percentage and dollar terms.

Did AGL make the Mid-2012 Discount Representation?

217    The ACCC pleads that the Mid-2012 Discount Representation was partly express and partly to be implied. It pleads that, to the extent that the Representation was express it was made by the information and statements in the Mid-2012 Rate Increase Letter, in the words of the WP Statements and by the CSR Statements. It alleges that the Representation was implied from the entirety of the Mid-2012 Rate Increase Letter, the CSR call script and the Welcome Pack.

218    As with the Initial Representation, the claim that the Mid-2012 Discount Representation was made expressly cannot be accepted. None of the written or oral statements upon which the ACCC relied contain the Mid-2012 Discount Representation in the terms alleged. The ACCC claim must accordingly be that the Representation was of an implied kind.

219    The ACCC claim that AGL made the Mid-2012 Discount Representation turns on acceptance of the following elements:

(i)    AGL had made a representation in terms of formulation (b) of the Initial Representation to all the Category 3 Consumers and a representation in terms of formulation (a) to sub-classes (i) and (ii) of those Consumers;

(ii)    the Mid-2012 Rate Increase Letters conveyed impliedly to the Category 3 Consumers that, after the notified increase took effect, they would still receive their agreed percentage discount off:

(a)    AGL’s energy usage charges that would apply to them if they were supplied electricity by AGL not under an energy plan; or

(b)    The energy usage charges for the supply of electricity by AGL to residential consumers in South Australia,

as the case may be.

220    On my findings, the first of these elements is established. The Initial Representation to the sub-class (i) and (ii) consumers was that they would receive a discount from the prices AGL would otherwise charge without an agreed energy plan in place. The Initial Representation to the sub-class (iii) consumers was that they would receive a discount from their energy usage charges calculated by reference to rates which were generally applicable.

221    I also consider that the second element is established, on the understanding of the two formulations of the Initial Representation I have outlined. The Consumers were told that they would continue to receive their current discounts. This was additional to statements informing the consumers of the increase in rates. These statements were plainly intended to be of a reassuring kind and to allay any concerns of the consumers. In my opinion, they would have had that effect. When a representation is made in terms apt to create a particular impression in the representee, and is intended to do so, it may properly be inferred that it has had that effect: TPG Internet at [55].

222    The timing of the Mid-2012 Rate Increase Letters is pertinent. Some six months only had elapsed since the making of the Initial Representation to the earliest of the Category 3 Consumers and, for some, the Mid-2012 Rate Increase Letters would have been received only a week or so after the Initial Representation was made to them. This contemporaneity is likely to have reinforced the representation in the minds of the consumers.

223    Accordingly, I find that the ACCC has established that the Mid-2012 Discount Representation was made but with the meaning of the Initial Representation outlined earlier in these reasons.

Was the Mid-2012 Discount Representation false or misleading?

224    AGL denies that the Mid-2012 Discount Representation was false or misleading. However, by its Fast Track Response it admitted three of the facts upon which the ACCC relied for the assertion that the Representation was misleading, namely, the facts pleaded in (a), (c) and (d) in [213] above. AGL denied the fact asserted in (b) in [213] above.

225    It is no objection to a finding that the Mid-2012 Discount Representation was false or misleading that it conveyed different things to the sub-classes of Category 3 Consumers. Representations which are capable of more than one meaning may be misleading or deceptive in both senses if each is reasonably open and the representation may be understood in each way by ordinary and reasonable members of the class to whom the representation is made.

226    Conduct is only misleading or deceptive, or likely to mislead to deceive, if it has a tendency to lead into error. There must be a sufficient causal link between the conduct and the error on the part of the persons exposed to it: TPG Internet at [39].

227    That link was said to exist in the present case because consumers had been entitled to assume (and would have assumed) that AGL had a usual price for electricity supplied to consumers like themselves. They would have assumed therefore that when AGL told them that they would continue to receive the applicable discount, it was from AGL’s usual rate applicable to consumers like themselves.

228    In some cases, the circumstance that a representation is misleading only because of an erroneous assumption made by the representee will preclude a finding of the requisite causal link. In particular, in cases in which the misleading or deceptive character of conduct or of a representation depends on the representee having made an “extreme or fanciful” assumption, the requisite causal nexus will not usually be found as such assumptions will not be attributed to the ordinary or reasonable class of representees: Campomar at [105]. The judgement in Smithers J in McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 49 FLR 455 at 466 indicates the underlying reasoning:

[T]hose persons who, by approaching the advertisement with erroneous ideas in their mind and interpreting its contents by reference thereto and are thereby misled do not arrive at their erroneous conclusion as a consequence of the terms of the advertisement, but because of the application, to those terms, of reasoning based on erroneous assumptions of their own. A member of the public can hardly complain of being misled by the conduct of another if because of errors made by himself he erroneously interpreted the nature of that conduct. And one would not contemplate that conduct, only misleading to those who misinterpret it because they apply erroneous assumptions in the exercise of interpretation, would be proscribed by the legislature. Such conduct would not be, one would think, truly misleading or deceptive.

229    In addition, French J (with whom Beaumont and Finkelstein J agreed) said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [65], that an “erroneous assumption derived from but not logically justified by the [respondent’s] conduct … will not ordinarily be treated on that account as misleading or deceptive.”

230    However, not all erroneous assumptions by representees have this effect and the reasoning of Smithers J in McWilliam’s Wines has been qualified in later decisions. In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200, Deane and Fitzgerald JJ noted that “no conduct can mislead or deceive unless the representee labours under some erroneous assumption” and rejected:

[any] general proposition of law to the effect that intervention of an erroneous assumption between conduct and any misconception destroys a necessary chain of causation with the consequence that the conduct itself cannot properly be described as misleading or deceptive or as being likely to mislead or deceive.

The High Court in Campomar referred to this passage with apparent approval at [104]. See also Johnson Tiles at [65].

231    Before considering whether the Mid-2012 Discount Representation was false or misleading in relation to each of the sub-classes of Category 3 Consumers, I note that the ACCC did not rely on any representation which may have been implicit in the statement:

The increase for an average AGL residential electricity customer in South Australia equates to around $6.80 (incl. GST) per week, however the actual impact on your bills will depend on the usage at the site shown.

It is accordingly unnecessary to consider whether the statement that the actual impact of the increase on the consumer’s bills depended on the consumer’s usage implicitly represented that that was only factor bearing on the impact of the increase in the rates in the consumer’s case.

The sub-class (i) and (ii) consumers

232    In my opinion, the Mid-2012 Discount Representation was misleading in relation to the sub-classes (i) and (ii) consumers. They were told that the discount that they were then receiving would continue to apply. That was not the case as the discount was no longer from the amount they would be charged if they were not on an energy plan. On my findings, they had agreed to commit to AGL for a term of two years on the basis of a discount from charges calculated by reference to identified rates but the discount was now to be calculated by reference to different (and higher) rates. Put slightly differently, while there was an appearance of them continuing to receive the agreed discount, it would not, in reality, be a discount from the charges which had been represented to them.

233    As noted earlier, the representation to the sub-class (i) and (ii) consumers involved two elements: the percentage discount and the charges to which that discount would be applied. AGL contemplated the continuation of the former but not of the latter.

234    The Mid-2012 Rate Increase Letters commenced with a heading in bold and prominent font. The heading was different in the two forms of the Letter. In the first, the heading was “Important adjustment to your AGL account”. In the second, the heading was “Important information about your AGL electricity Energy Plan”. The first letter, but not the second, also included the sentence “this increase is in line with the terms of your contract”.

235    The first form of Letter would have tended to confirm the misrepresentation to the sub-class (i) and (ii) consumers. The ordinary and reasonable consumer would have understood the heading as conveying that the adjustment which the letter notified (the increase in rates) was the only adjustment to the consumer’s arrangement with AGL. This was not correct because AGL was now intending to calculate the consumer’s charges by reference to rates which, in the case of sub-class (ii), differed from its SRC Rates and, in the case of sub-class (i), differed from the rates which would apply if the supply was other than under an energy plan. The sentence assuring the consumer that the rate increase was in line with his or her contract would have reinforced to the ordinary and reasonable consumer that the existing arrangement were to continue, subject to the rate increase.

236    The heading to the second form of letter was to my mind of a more neutral character.

237    The reasoning above is sufficient for a conclusion that AGL contravened s 29(1)(g) of the ACL by making a false or misleading representation that its supply of electricity to the sub-class (i) and (ii) consumers would continue to have the benefit represented to those consumers by the Initial Representation. That is, that the supply by AGL would entitle the consumers to continue to receive the discount from the amount they would otherwise pay for their electricity if not subject to an energy plan. It also means that AGL contravened s 29(1)(i) of the ACL by making a false or misleading representation with respect to the price at which it would supply electricity.

238    It is convenient to deal with the claimed contravention of s 18 in respect of the sub-class (i) and (ii) consumers when considering the ACCC claim of misrepresentation by non-disclosure.

The sub-class (iii) consumers

239    An assumption by consumers in 2012 and 2013 that AGL had rates of general application cannot be described as extreme or fanciful: on the contrary it was an accurate understanding. Further, and in any event, many of the features mentioned earlier in these reasons would have suggested naturally to these consumers that AGL had rates of general application. These included the knowledge which may be attributed to the consumers that AGL is a large retailer of electricity supplying electricity to hundreds of thousands of homes in South Australia; that the way in which electricity is supplied to residential premises tends to be the same; that the very volume of AGL’s customers would make it probable that they would have arrangements with their customers of a generally uniform kind; and the fact that AGL’s CSRs had referred to discounts from charges, rather than from reduced rates, as the means by which AGL could make it attractive for consumers to commit to them for the fixed terms of their energy plans.

240    Accordingly, I am satisfied that the ordinary and reasonable Category 3 Consumers are likely to have made the assumption that AGL had rates of general application to consumers like themselves.

241    However, ordinary and reasonable consumers do not include those “who fail to take reasonable care of their own interests”: Campomar at [102]. In this respect AGL relied on the report of Mr Price. That report indicated that consumers had a number of means by which they could locate rates for the supply of electricity to residential premises, including the schedule of rates in the Offer Summary in the Welcome Pack, the schedule of rates on each account they receive, and the rates published on fact sheets on AGL’s website. Mr Price’s report also indicated that consumers could compare different offers and the effect of different rates in their own circumstances, by use of the facility on the ESCOSA website or by use of one of the ten other price comparison websites.

242    It is evident that many of the regulatory requirements imposed by ESCOSA were directed to requiring retailers to provide consumers with information about their rates at the commencement of their contracts and with information about their usage and rates during the currency of their contracts, with a view to facilitating their ability to make these forms of comparison.

243    The evidence did not disclose what consumers would have seen in the Relevant Period if they had accessed the AGL website, but it seemed to be common ground that they would have seen AGL’s various schedules of rates.

244    Based on general experience rather than direct evidence, I consider it probable that the majority of both Category 3 and Category 5 Consumers had access to the internet and therefore access to AGL’s website and the price comparison websites. There is a sense therefore in which it could be said that the majority of Category 3 and Category 5 Consumers had the means to identify for themselves, if they wished, the fact that AGL had various schedules of rates.

245    However, it is difficult to conclude that a failure by the consumers to make use of these websites, if that was the case, amounted to a failure to take reasonable care for their own interests. Such a failure is to be assessed objectively. The very numbers of the Category 3 Consumers involved suggests that the Court would not readily conclude that they had not met the objective standard involved. On the contrary, the circumstance (if it be the case) that large numbers apparently did not invoke means of identifying various rate schedules available militates against such a finding.

246    Further, those Category 3 Consumers who, on receiving their Welcome Packs, went to the AGL website would have seen that the rates notified to them were the same as those in a number of AGL’s categories and, in particular, the same as its then prevailing SRC rates.

247    Finally, AGL could hardly be heard to say that consumers who, like Customer Six in the taped telephone conversations, were motivated by loyalty to the AGL brand were failing to take reasonable care of their own interests by failing to check the position independently, and I did not understand it to make that submission.

248    For these reasons, I do not consider that the ordinary and reasonable Category 3 Consumer (and for that matter the ordinary and reasonable Category 5 Consumer) should be taken not to include those who failed to check the rates applicable in their case against the rates published on the AGL website.

249    On my findings, the Mid-2012 Discount Representation to the sub-class (iii) Category 3 Consumers was that they would continue to receive their percentage discount from the energy usage charges calculated by rates which AGL applied generally to consumers like themselves. This was a misrepresentation. These consumers would no longer receive the agreed discount from charges calculated in this way but from charges calculated by reference to a category of rates which AGL itself assigned to these consumers and then increased selectively. Those rates were higher than those which applied to otherwise similar consumers who entered into energy plans with AGL following the Mid-2012 Rate Increase. The effect of AGL’s conduct was summarised earlier: it reduced the benefits of the discounts represented to the consumers when they agreed on their energy plan.

250    It follows that the ACCC has also established that the Mid-2012 Discount Representation was false or misleading in relation to the sub-class (iii) consumers.

Omission to disclose the Mid-2012 Rate Increase Information

251    In relation to the alleged contravention of s 18 in relation to Category 3 Consumers in 2012, the ACCC relied on both the Mid-2012 Discount Representation and AGL’s omission to disclose certain information to those consumers at the time of the Mid-2012 Rate Increase. The AFTS pleaded that AGL had omitted to disclose the following information (described in the AFTS as “the Mid-2012 Rate Increase Information”) to consumers:

Following the Mid-2012 Rate Increase:

(a)    energy usage charges for electricity supplied by AGL SA to Consumers would not be calculated by reference to the same rates;

(b)    the rates for energy usage charges for Category 3 Consumers would be higher than the rates for energy usage charges that would apply to them if they were supplied electricity by AGL SA not under an Energy Plan; and

(c)    the rates for energy usage charges for Consumers commencing an Energy Plan during the Relevant Period from 19 July 2012 would be the same as the rates for energy usage charges which would apply to them if they were supplied electricity by AGL SA not under an Energy Plan.

Put more shortly, the ACCC contended that AGL should have informed the Category 3 Consumers that it would use different rates to calculate energy usage charges; that the rate used to calculate their charges would be higher than the rates they would have used had the consumers not agreed on an energy plan; and that rates applicable to those commencing on energy plans from July 2012 onwards would be less than the rates applied in their case.

252    AGL acknowledged that it was aware at the time it sent the 2012 Rate Increase Letter of the elements of the pleaded Mid-2012 Rate Increase Information.

253    It is well established that, in some circumstances, silence may constitute conduct which is misleading or deceptive. There was little disagreement between the parties as to the principles relevant to this part of the ACCC claim. The High Court discussed many of the principles in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357, in particular at [16]-[21] (French CJ and Keifel J).

254    I take the principles relevant to this case as being:

(1)    Conduct involving silence may, in some circumstances, constitute misleading or deceptive conduct;

(2)    In considering whether there is a contravention of s 18, silence is to be assessed as a circumstance like any other;

(3)    Mere silence without more is unlikely to constitute misleading or deceptive conduct. Remaining silent will, however, constitute misleading or deceptive conduct if the circumstances are such as to give rise to a reasonable expectation that if some relevant fact does exist, it will be disclosed;

(4)    A reasonable expectation that a fact, if it exists, will be disclosed will arise when either the law or equity imposes a duty of disclosure but is not limited to those circumstances. It is not possible to categorise all the circumstances in which a reasonable expectation of disclosure may arise but they may include circumstances in which a statement conveying a half-truth only is made, circumstances in which the representor has undertaken a duty to advise, circumstances in which a representation with continuing effect, although correct at the time it was made, has subsequently become incorrect, and circumstances in which the representor has made an implied representation;

(5)    In considering whether a party engaged in commercial dealing may have a reasonable expectation that a fact, if it exists, will be disclosed, one needs to keep in mind that it will often be the case in such dealings that one party has more knowledge about a relevant matter than the other and yet will not, in accordance with ordinary commercial expectations, be guilty of misleading or deceptive conduct in failing to make that knowledge known to the other.

255    Fundamentally, the determination of whether a failure to disclose a matter is misleading or deceptive requires examination of all the circumstances. If in the circumstances, assessed objectively, the representees would have been entitled to expect or infer (that is, have a reasonable expectation) that the particular matters would be disclosed and they were not, the representor may have engaged in misleading or deceptive conduct: Clifford v Vegas Enterprises Pty Ltd [2011] FCAFC 135 at [198]. French CJ and Keifel J in Miller said in relation to the concept of reasonable expectation, at [19]:

The language of reasonable expectation is not statutory. It indicates an approach which can be taken to the characterisation, for the purposes of s 52, of conduct consisting of, or including, non-disclosure of information. That approach may differ in its application according to whether the conduct is said to be misleading or deceptive to members of the public, or whether it arises between entities in commercial negotiations. …

(Citation omitted)

Silence and sub-classes (i) and (ii)

256    Although the AFTS contained a plea in [40] that the Category 3 Consumers did reasonably expect that the Mid-2012 Rate Increase Information would be disclosed to them, it did not particularise the basis for the expectation alleged. Further, the ACCC submissions did not make clear why the Category 3 Consumers in any of the sub-classes would have had such an expectation.

257    The ACCC did not allege that AGL was under a duty to disclose the Mid-2012 Rate Increase Information, let alone indicate a basis for such a duty. I accept in this respect the submission of AGL that the regulatory regime, to which I referred earlier, did not require disclosure of any of the elements of the Mid-2012 Rate Increase Information and that AGL had complied with its obligations of disclosure under that regime. The ACCC did not contend otherwise.

258    Section 18 does not impose an independent duty of disclosure. However, when a person is subject to an obligation to disclose information, s 18 requires that the information given not be misleading or deceptive or likely to mislead or deceive: Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 at 466.

259    The ACCC submitted that electricity is an essential service such that there is a “common bond” between every person and every household in South Australia in relation to the supply of electricity. It then referred to the diversity of persons and, in particular of the Category 3 Consumers, who shared that “common bond”, noting that some would be “less astute, less intelligent or less well-informed than the average member of the community”. Although not stated in express terms, the submission seemed to be that these circumstances gave rise in some way to a duty in AGL to disclose the Mid-2012 Rate Increase Information, or at least informed the disclosure which could reasonably be expected of AGL. In this way the ACCC submissions sought to invoke the reasoning in Fraser at 467-468.

260    However, I accept AGL’s submission that Fraser is distinguishable. In that case the Court held that the directors of NRMA Holdings Limited were under a duty, independently of s 52 of the former Trade Practices Act 1974 (Cth), to make disclosure of relevant information concerning the de-mutualisation of the company. Having found such a duty, the Court referred to the “common bond” of the company’s members in the context of identifying the content of the information which the directors should have provided to them. The Court did not hold that a common bond of some kind between a diverse group of consumers gave rise by itself to a duty of disclosure. Accordingly, in my opinion, the decision in Fraser does not assist the ACCC presently. As already noted, the ACCC did not contend that AGL was subject to some independent obligation of disclosure with respect to which the content of the statements made in the Mid-2012 Rate Increase Letter could be compared.

261    I am unable to find any basis for a finding that, objectively speaking, the sub-class (i) and (ii) consumers would have expected that AGL would inform them (in terms of the first and third elements of the Mid-2012 Rate Increase Information) that it would use different rates to calculate energy usage charges among its various customers or that it would charge those consumers commencing on an energy plan after July 2012 at the same rates as would apply if they were not on an energy plan. There is no reason to suppose that these matters would have been of any particular significance to the sub-class (i) and (ii) consumers.

262    It is the second item of the Mid-2012 Rate Increase Information which would have been of interest to the sub-class (i) and (ii) consumers. Had AGL informed them of that information, they would thereby have become aware that they were now being charged at rates which were higher than would have been the case if they had not agreed to an energy plan. They could then have concluded that the basis upon which they had agreed to commit to AGL for a two year term had been falsified or, at least, made less attractive. But more must be established for the reasonable expectation supporting misrepresentation by silence than the putative interest of the sub-class in the information or the use which could be made by the sub-class of the information had it been provided.

263    The ACCC submitted that it would have been “relatively easy” for AGL to have informed the Category 3 Consumers of the way in which the rates for their energy usage charges would differ from the SRC Rate. It submitted further that “it is not a demanding expectation that an energy supplier will make fair or complete disclosure of material information to existing consumers when it writes to those consumers about rate increases.”

264    However, this is not sufficient to give rise to the reasonable expectation for which the ACCC contended. I accept the submission of AGL that the test of reasonable expectation is not satisfied by an appeal to “vague and general notions of fairness or some concept of optimal disclosure”. Some principled basis for the reasonable exception must be identified. Any duty by AGL to disclose information, and any reasonable expectation by consumers that it would disclose information, must have its origin in matters which are independent of the ease of the means by which the duty can be discharged or the expectation satisfied, if it exists.

265    I think it reasonable to suppose that the ordinary and reasonable sub-class (i) and (ii) consumer reposed some trust in AGL and would have relied on it to charge no more than that to which it was entitled under the arrangements which the consumer had made with it. They would have expected a reputable retailer not to depart from the representation on which it had induced them to contract with it. However, that is different from an expectation that AGL would alert them to a circumstance from which they could infer that it was not doing so.