FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dodo Services Pty Ltd [2021] FCA 589

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent (Dodo) between 26 March 2018 and 2 April 2019, in trade or commerce, in connection with the supply or possible supply or the promotion by any means of the supply of its residential NBN broadband services:

(a)    engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA);

(b)    made misleading representations with respect to the performance characteristics and benefits associated with those services in contravention of ss 29(1)(b) and (g) of the ACL; and

(c)    engaged in conduct that was liable to mislead the public as to the characteristics of those services in contravention of s 34 of the ACL,

by publishing statements on specific pages of its website (www.dodo.com.au) relating to its residential NBN broadband services, which referred to a ‘typical evening speed’ of:

(d)    11 Mbps for its services based on the NBN Co 12/1Mbps speed tier from 26 March 2018 to 2 April 2019;

(e)    24 Mbps for its services based on the NBN Co 25/5Mbps speed tier from 26 March 2018 to 2 April 2019;

(f)    43 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 26 March 2018 to 26 June 2018;

(g)    46 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 26 June 2018 to 4 September 2018;

(h)    47 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 4 September 2018 to 2 April 2019,

and thereby representing that consumers who acquired one of its NBN plans would, or could expect to, typically or usually receive internet download speeds as published (and set out in sub-paragraphs 1(d) to (h) above) during the period 7pm to 11pm (Busy Evening Period) when it did not have reasonable grounds to make those representations because it did not have a testing methodology in place which was an appropriate measure of the speeds typically or usually received by customers during the Busy Evening Period.

2.    The Second Respondent (iPrimus), between 26 March 2018 to 2 April 2019, in trade or commerce, in connection with the supply or possible supply or the promotion by any means of the supply of its residential NBN broadband services:

(a)    engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the ACL;

(b)    made misleading representations with respect to the performance characteristics and benefits associated with those services in contravention of ss 29(1)(b) and (g) of the ACL; and

(c)    engaged in conduct that was liable to mislead the public as to the characteristics of those services in contravention of s 34 of the ACL,

by publishing statements on specific pages of its website (www.iprimus.com.au) relating to its residential NBN broadband services, which referred to ‘typical evening speeds’ of:

(d)    11 Mbps for its services based on the NBN Co 12/1Mbps speed tier from 26 March 2018 to 2 April 2019;

(e)    43 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 26 March 2018 to 26 June 2018;

(f)    46 Mbps for its services based on the NBN Co 50/20Mpbs speed tier from 26 June 2018 to 4 September 2018; and

(g)    47 Mbps for its services based on the NBN Co 50/20Mbps speed tier from 4 September 2018 to 2 April 2019,

and thereby representing that consumers who acquired one of its NBN plans would, or could expect to, typically or usually receive internet download speeds as published (and set out in sub-paragraphs 2(d) to (g) above) during the Busy Evening Period when it did not have reasonable grounds to make those representations because it did not have a testing methodology in place which was an appropriate measure of the speeds typically or usually received by customers during the Busy Evening Period.

THE COURT ORDERS THAT:

Pecuniary penalties

1.    Dodo pay to the Commonwealth of Australia a pecuniary penalty of $1,500,000, within 30 days of the Court’s order, in respect of the contraventions of ss 29(1)(b), (g) and 34 of the ACL declared in paragraph 1.

2.    iPrimus pay to the Commonwealth of Australia a pecuniary penalty of $1,000,000, within 30 days of the Court’s order, in respect of the contraventions of ss 29(1)(b), (g) and 34 of the ACL declared in paragraph 2.

Costs

3.    The Respondents pay $75,000, within 30 days of the Court’s order, as a contribution to the ACCC’s costs of and incidental to the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the applicant, the Australian Competition and Consumer Commission (ACCC), alleges that the respondents, Dodo Services Pty Ltd (Dodo) and Primus Telecommunications Pty Ltd (iPrimus) engaged in misleading conduct in contravention of ss 18(1), 29(1)(b) and (g) and 34 of the Australian Consumer Law (ACL) in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the CCA). Dodo and iPrimus are wholly owned subsidiaries of Vocus Group Limited, which together with a number of other corporate entities comprise the Vocus Group (Vocus).

2    Dodo and iPrimus have now admitted that they engaged in misleading conduct on the basis that:

(a)    from at least 26 March 2018 to 2 April 2019 (the relevant period), Dodo and iPrimus published statements on specific pages of their respective websites relating to broadband internet plans (NBN plans) provided over the National Broadband Network (NBN Co), which referred to “typical evening speeds” (Typical Evening Speed Statements) that were drawn from a methodology developed by Vocus (Vocus Methodology);

(b)    in making the Typical Evening Speed Statements each of Dodo and iPrimus represented that consumers who acquired one of its NBN Plans would, or could expect to, typically or usually receive internet download speeds as published during the Busy Evening Period between 7pm and 11pm (the Typical Evening Speed Representations). The Typical Evening Speed Representations were representations with respect to future matters within the meaning of s 4 of the ACL; and

(c)    Dodo and iPrimus admit that they each contravened ss 18(1), 29(1)(b), 29(1)(g) and 34 of the ACL because they did not have reasonable grounds, for the purposes of s 4 of the ACL to make the Typical Evening Speed Representations.

3    The parties have jointly proposed that the Court make agreed declarations in relation to the admitted contraventions of the ACL and order agreed pecuniary penalties of $1,500,000 against Dodo and $1,000,000 against iPrimus for the contraventions of ss 29(1)(b), (g) and 34 of the ACL.

4    For the reasons I explain I consider it is appropriate to make the declarations sought and to impose the penalties proposed.

THE FACTS AND PROCEDURAL HISTORY

5    The parties filed a Statement of Agreed Facts and Admissions (SAFA) and filed Joint Submissions on Contraventions and Relief (joint submissions), upon which I have directly drawn at various points in these reasons.

6    Dodo and iPrimus are companies incorporated in Australia, and at all relevant times carried on the business of promoting and supplying retail broadband internet services via the NBN. During the relevant period Dodo and iPrimus:

(a)    offered for sale to consumers, NBN plans that were provided, in part, using wholesale services supplied by NBN Co; and

(b)    maintained websites at www.dodo.com.au and www.iprimus.com.au respectively, to promote the Dodo and iPrimus NBN plans.

7    As internet retail service providers (RSPs) of NBN Co services, Dodo and iPrimus purchase wholesale services from NBN Co in order to provide the Dodo and iPrimus NBN plans. The wholesale services purchased by Dodo and iPrimus included:

(a)    an “access virtual circuit” (AVC) unique to each consumer, which relates to the carriage of data between a consumer’s premises and a point of aggregation at a particular bandwidth; and

(b)    a “connectivity virtual circuit” (CVC), which provides services to multiple customers in a connectivity service area, which relates to the carriage of data between the point of aggregation and a point of interconnect.

8    NBN Co offered AVCs to RSPs, including Dodo and iPrimus, in a range of “megabits per second” (Mbps) bandwidth profiles. Mbps is a unit which reflects the maximum download speed for a customer and a maximum upload speed from a customer. The AVCs offered by NBN Co included 12/1Mbps, 25/5Mbps and 50/20Mbps (together or separately, speed tiers). For example, 25/5Mbps is in AVC with a maximum download speed of 25Mbps and a maximum upload speed of 5Mbps.

9    NBN Co also offered CVCs in a range of bandwidth profiles. In general terms, in determining the capacity and quantity of CVCs to acquire from NBN Co, an RSP makes decisions as to the amount of capacity relative to the number of customers that will be serviced per CVC. This is referred to as “provisioning”.

10    As the bandwidth of a CVC is shared between many customers, in making provisioning decisions, an RSP will balance the cost of acquiring the CVC from NBN Co with the quality of internet service provided to the customer. Quality of service may be compromised where a CVC becomes congested – which occurs when the aggregated rate at which all consumers on a CVC are downloading data reaches the maximum capacity of that CVC.

11    During the relevant period, for both Dodo and iPrimus, congestion was more likely to occur during the Busy Evening Period, when the number of customers using their internet connections was typically at its highest. Dodo and iPrimus admit that there were times during the Busy Evening Period in the relevant period when some CVCs and backhaul links were congested.

12    At various times during the relevant period Dodo and iPrimus published statements on their respective websites, relating to the NBN plans, which referred to a “typical evening speed” for the speed tiers as follows:

(a)    11 Mbps for services based on the NBN Co 12/1Mbps speed tier from 26 March 2018 to 2 April 2019;

(b)    24 Mbps for services based on the NBN Co 25/5Mbps speed tier from 26 March 2018 to 2 April 2019 (Dodo only as iPrimus did not promote or offer services at this speed during the relevant period);

(c)    43 Mbps for services based on the NBN Co 50/20Mbps speed tier from 26 March 2018 to 26 June 2018;

(d)    46 Mbps for services based on the NBN Co 50/20Mbps speed tier from 26 June 2018 to 4 September 2018; and

(e)    47 Mbps for services based on the NBN Co 50/20Mbps speed tier from 4 September 2018 to 2 April 2019;

      (which together comprise the Typical Evening Speed Statements).

Vocus methodology

13    In August 2017, the ACCC published guidelines on broadband speed claims (the guidelines), which provided guidance for RSPs advertising the speeds of NBN plans. Relevantly, the guidelines stated that consumers should be provided with information about speeds during typical busy periods that the average consumer could expect to receive. The guidelines provided a suggested methodology for identifying internet speeds during typical busy periods.

14    In response to those guidelines (although not by implementing the suggested methodology set out in them) from about January to April 2018 Vocus developed a methodology which it relied upon in making the Typical Evening Speed Statements in respect of both Dodo and iPrimus NBN plans (Vocus Methodology).

15    The Vocus Methodology was complex. The SAFA describes how that methodology worked, or more accurately, was intended to work. It is, though, unnecessary to describe the methodology in detail in these reasons. It suffices to note that the SAFA identifies various deficiencies in the Vocus Methodology and Dodo and iPrimus admit that the methodology did not provide reasonable grounds for the Typical Evening Speed Statements.

The ACCC investigation

16    On 1 December 2017, the ACCC appointed a company, SamKnows, to undertake a broadband speeds monitoring program, which used volunteers who agreed to participate in the program with a Whitebox device that performed automated tests on volunteers’ home internet connection at peak and off-peak times. The ACCC published the first Measuring Broadband Australia report in March 2018. At that stage, results were only reported for the iiNet, Optus, Telstra and TPG RSPs.

17    As a statistically sufficient number of volunteers acquiring services from an RSP made themselves available as testers, additional RSPs appeared in the Measuring Broadband Australia reports. Dodo and iPrimus were included for the first time in the Measuring Broadband Australia report published in February 2019.

18    On 3 April 2019, Dodo and iPrimus ceased relying on the Vocus Methodology to make Typical Evening Speed Statements. Since that date they have published average sample evening speeds for the Busy Evening Period based on the results published in the Measuring Broadband Australia report.

The proceeding

19    On 9 April 2018, the ACCC advised Vocus that it was investigating its Typical Evening Speed Statements and on or about 19 July 2018 it advised that it had ongoing concerns about these statements. The ACCC’s investigation continued throughout 2018 and into 2019 with the ACCC issuing notices under s 155 of the CCA requiring the production of documents and information, and also requiring a number of Vocus employees for examination.

20    On 22 June 2020 the ACCC commenced this proceeding by way of an Originating Application and Concise Statement. The parties reached the agreement which underpins the application for agreed declarations and penalty orders before any other substantive step had been taken in the proceeding.

The admitted contraventions

21    Section 18(1) of the ACL provides that:

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

“Conduct” includes doing or refusing to do any act, including, among other matters, engaging in a concerted practice.

22    Section 29 of the ACL provides:

(1)    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:

…

(b)    make a false or misleading representation that services are of a particular standard, quality, value or grade…

…

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

23    Section 34 of the ACL provides:

A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.

24    Section 4(1) of the ACL provides that if:

(a)    a person makes a representation with respect to any future matter (including the doing of, or the refusing to do any act); and

(b)    the person does not have reasonable grounds for making the representation; the representation is taken, for the purposes of this Schedule to be misleading.

25    Dodo and iPrimus admit that by making the Typical Evening Speed Statements, they each made the Typical Evening Speed Representations to potential consumers of NBN broadband internet services in Australia, which were representations with respect to future matters within the meaning of s 4 of the ACL. Dodo and iPrimus admit that they each engaged in misleading conduct by operation of s 4 of the ACL on the basis that:

(a)    the Typical Evening Speed Representations were representations as to a future matter, namely the internet connection speeds that consumers would or could expect to receive in the future if they acquired a new NBN plan from Dodo or iPrimus; and

(b)    the methodology relied upon by Dodo and iPrimus to make the Typical Evening Speed Representations was deficient and consequently did not provide reasonable grounds for those representations.

The number of potential contraventions

26    Each occasion on which the Typical Evening Speed Representations were displayed to a consumer involved a separate contravention of the ACL: Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [153] (Jagot, Yates and Bromwich JJ). The representations were made to consumers on the Dodo and iPrimus websites, and Dodo and iPrimus have admitted that there were at least 11,814 “new” NBN activations for Dodo and iPrimus between 26 March 2018 and 31 March 2019 that came about through online sales (and therefore via their websites). It is not, however, possible to determine how many consumers viewed those representations over the relevant period.

CONSIDERATION

Declarations of contravention

27    The contraventions are established by the facts and admissions in the SAFA. I am satisfied that it is appropriate to make declarations as to those contraventions as proposed by the parties.

28    As I said in Australian Securities and Investments Commission v Commonwealth Bank [2020] FCA 1543 at [33]:

…. Pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) the Court has a wide discretionary power to grant declaratory relief. It is undesirable to fetter the exercise of the discretion by laying down rules as to the manner of its exercise, but ordinarily three requirements must be satisfied before a declaration should be made: see Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 437-438 (Gibbs J); Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 (Lord Dunedin):

 (a)    the question must be a real and not a hypothetical or theoretical one;

 (b)    the applicant must have a real interest in raising it; and

(c)    there must be a proper contradictor, that is, someone who has a true interest to oppose the declaration sought.

29    Those preconditions for declaratory relief are made out in the present case, as:

(a)    there is a direct and important question as to whether Dodo and iPrimus contravened the provisions of the ACL in making the Typical Evening Speed Representations;

(b)    the ACCC has an obvious interest, as the statutory regulator discharging its functions in the public interest, in bringing the proceeding; and

(c)    Dodo and iPrimus, as the alleged contraveners, have an interest in opposing the relief. That remained so notwithstanding their admissions and agreement: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 at [30]-[33] (Greenwood, Logan and Yates JJ).

30    The declarations are appropriate and desirable because they will record the Court’s disapproval of the conduct, vindicate the concerns of consumers, assist the ACCC in carrying out the duties conferred on it by the CCA, and make clear to other RSPs that such conduct is unlawful: see Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 at [77]-[78] (Gordon J).

31    For those reasons I have made the declarations of contravention sought.

Pecuniary Penalty

32    The ACCC seeks the imposition of a pecuniary penalty in the sum of $1,500,000 payable by Dodo and $1,000,000 payable by iPrimus in respect of the admitted contraventions of ss 29 and 34 of the ACL. Dodo and iPrimus accept that it is appropriate that pecuniary penalties be imposed in those amounts.

33    The Court has power pursuant to s 224(1)(a)(ii) of the ACL to order that Dodo and iPrimus each pay a pecuniary penalty in respect of each act or omission which it is satisfied constitutes a contravention of ss 29(1)(b) and (g) and 34 of the ACL (subject to s 224(4)(b) of the ACL which provides that where conduct constitutes a contravention of two or more of the above provisions which attract civil penalties, a person is not liable for more than one penalty for the same conduct). Section 18 of the ACL is not a civil penalties provision.

Agreement as to penalty

34    In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [46]) (French CJ, Kiefel (as her Honour then was), Bell, Nettle and Gordon JJ) (Commonwealth v Director) the plurality emphasised the “important public policy involved in promoting predictability of outcome in civil penalty proceedings” which “assists in avoiding lengthy and complex litigation and thus tends to free the courts to deal with other matters and to free investigating officers to turn to other areas of investigation that await their attention.” Their Honours went on to say (at [58]):

Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to the facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and…highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty.

35    I am satisfied as to the accuracy of the parties’ agreement as to the facts and consequences of the contravening conduct, and for the reasons I explain that the proposed penalty is an appropriate remedy in the circumstances.

Deterrence

36    The principal object of a pecuniary penalty is deterrence, directed both to discouraging future contravening conduct by the contravener (specific deterrence) and discouraging other persons who might contemplate engaging in similar contraventions (general deterrence).

37    In Commonwealth v Director at [55]) the plurality approved the remarks of French J (as his Honour then was) in Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076 at 52,152 where his Honour said:

The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act.

38    In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Anor [2018] HCA 3; (2018) 262 CLR 157 at [116] (Keane, Nettle and Gordon JJ), in respect of pecuniary penalties under the Fair Work Act 2009 (Cth), the High Court applied Commonwealth v Director in explaining that the effectiveness of the “principal object” of deterrence will depend upon a pecuniary penalty having the necessary “sting or burden” to “achieve the specific and general deterrent effects that are the raison d’être of its imposition.”

39    The primacy of deterrence in relation to contraventions of the ACL has been emphasised in various ways:

(a)    in Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 at [62]-[63] (Keane CJ (as his Honour then was), Finn and Gilmour JJ) the Full Court explained the need to ensure that the penalty imposed “is not such as to be regarded by that offender or others as an acceptable cost of doing business” and which will deter them “from the cynical calculation involved in weighing up the risk of penalty against the profits to be made from contravention”;

(b)    applying the observations in Singtel Optus, in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [64]-[66] (French CJ, Crennan, Bell and Keane JJ) the High Court referred to the “primary role” of general and specific deterrence in assessing the appropriate penalty where commercial profit is the driver of the contravening conduct; and

(c)    in Reckitt at [153] the Full Court emphasised that the “critical importance of effective deterrence must inform the assessment of the appropriate penalty”. Their Honours explained (at [151]) that “the greater the risk of consumers being misled and the greater the prospect of gain to the contravener, the greater the sanction required, so as to make the risk/benefit equation less palatable to a potential wrongdoer and the deterrence sufficiently effective in achieving voluntary compliance.”

40    A penalty must not however be so high as to be oppressive. As the Full Court said in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 at 293 (Burchett and Kiefel JJ (as her Honour then was), Carr J agreeing): “[I]f deterrence is the object, the penalty should be no greater than is necessary to achieve this object; severity beyond that would be oppression.”

41    In the present case the matters relevant to general deterrence include that:

(a)    the communications industry is very large and the consumer base is extremely broad. The potential impact of misrepresentations by service providers in the industry, and the potential gains from them are large. Any perception that penalties attaching to such gains could be absorbed as a mere cost of doing business would give rise to the potential for widespread harm to consumers, which requires a strong deterrent message: Singtel Optus at [61]-[64]; Reckitt at [149]-[153];

(b)    the conditions in which the impugned conduct occurred continue to exist. RSPs continue to compete to provide services to customers via the NBN and other access technologies, and customers continue to migrate to the NBN. RSPs are limited in the manner in which they can differentiate their NBN plans from that of other RSPs given the common wholesale NBN elements underpinning those services. One differentiator to some consumers is performance in terms of download speed. As a result, there remains a potential for RSPs to gain market share and profit from misleading conduct of a similar kind;

(c)    it is important that consumer confidence in relation to the communications industry is not undermined by seller misrepresentations. That would undermine market efficiency which depends on consumer confidence in being given reliable, truthful and accurate information: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 at [95] (Allsop CJ) (Coles Bread case) ; and

(d)    communications businesses should be left in no doubt that a strong compliance program sufficient to pick up and address conduct of the present kind is not optional. If the burden of a penalty is seen to be less than the cost or effort of such a program, businesses may be tempted to prefer to absorb the risk of being caught rather than carefully complying with the ACL. In turn that would give the contravening company an advantage over those companies which do take on the proper costs of compliance: Reckitt at [152].

42    The matters relevant to specific deterrence in the present case include:

(a)    Dodo and iPrimus stood, and stand, to benefit from having customers choose to purchase their NBN plans over the NBN plans of other RSPs. Consumers that are required to migrate to NBN-based services represent both a risk in terms of existing customers and opportunity in terms of new customers. The risk lies in the requirement to migrate to the NBN, which may act as a natural trigger for consumers to reassess their existing internet services and service provider when they may not otherwise do so; and

(b)    Dodo and iPrimus previously provided enforceable undertakings to the ACCC which related to maximum attainable speeds under their NBN plans. The fact that the undertakings had not been sufficient to secure their adherence to the requirements of the ACL indicate that a more severe penalty is necessary to secure specific deterrence: TPG Internet at [62]-[64].

43    In my view, having regard to the following matters I consider the proposed penalties are likely to be sufficient to provide a sufficient sting or burden for the respondents. In the circumstances, they are unlikely to be seen as merely a cost of doing business.

44    First, while the benefit obtained by a respondent often provides a useful yardstick against which to consider the necessary deterrent message (Reckitt at [151]-[153], [158], [164], [176]) in the present case it is not possible to determine what, if any, financial benefit Dodo or iPrimus derived from the contravening conduct. While 11,814 new customers signed up online for new NBN plans in the relevant period, it is not possible to ascertain how many consumers viewed the Typical Evening Speed Statements; nor how many consumers signed up in reliance upon those representations. I accept the parties’ submissions that in those circumstances the proposed penalties serve to make the risk/benefit equation sufficiently unpalatable to deter similar conduct by the respondents and other potential wrongdoers.

45    Second, the magnitude of the proposed penalties reflect the objective seriousness of the contravening courses of conduct. Importantly, there is no evidence that customers of Dodo and iPrimus received internet connection speeds that were lower than those stated in the Typical Evening Speed Statements. Further, while the Typical Evening Speed Statements were undertaken in relation to an area of major importance to consumers, they only appeared in one medium, the websites of the two respondents, and they were not used as part of a wider promotional campaign.

46    Third, there is no evidence that any consumer suffered financial harm through the conduct. While it is possible that some consumers may have been disappointed by the download speeds they received relative to the Typical Evening Speeds Statements, and that if they had been properly informed they may have selected another RSP, there is no evidence that they received lower speeds than those represented. It is not possible to determine the extent (if any) to which they received speeds that were lower than those represented nor is it possible to determine the extent to which the lower speeds affected their activities.

47    Fourth, the penalties reflect the cooperation that Dodo and iPrimus provided to the ACCC in relation to the proceeding, including the savings of time, cost and certainty associated with the early agreed resolution.

The maximum penalty

48    For the period from 26 March 2018 to 31 August 2018, pursuant to item 2 in the table in s 224(3) of the ACL, the maximum penalty for a body corporate for each contravention of ss 29 and 34 of the ACL was $1.1 million. For the period from 1 September 2018 to 2 April 2019, pursuant to ss 224(3) and 224(3A), the maximum penalty for a body corporate for each such contravention was increased to the greater of the following amounts:

(a)    $10 million,

(b)    if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the act or omission -three times the value of that benefit; or

(c)    if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the 12 month period ending at the end of the month in which the act or omission occurred or started to occur.

49    The “maximum penalty is not just a limit on power, it provides a statutory indication of the punishment for the worst type of case, by reference to which the assessment of the proportionate penalty for other offending can be made, according to the will of Parliament: Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177 at [62] (Allsop CJ, White and Wigney JJ, with whom Besanko and Bromwich JJ agreed).

50    While it is not possible to identify the number of consumers who read the Typical Evening Speed Statements; nor how many consumers signed up in reliance upon those representations; it is reasonable to expect that a significant number of consumers who visited the websites of Dodo and iPrimus in the relevant period must have had at least some regard to them. If the number of 11,814 “new” NBN plans entered it into during the relevant period is used as the basis for assessing the number of potential contraventions, and that total is divided by the number of months (excluding March 2018 and April 2019) in the relevant period, there were approximately 984 “new” NBN plans entered into by consumers per month which may have been affected by the contravening conduct.

51    The maximum penalty for all contraventions in the period between 26 March 2018 and 31 August 2018, is therefore approximately $5.4 billion (representing $1.1 million by 984 contraventions per month for five months).

52    In the period between 1 September 2018 and 2 April 2019 the maximum penalty is the greater of: (a) $10 million; (b) three times the value of the benefit attributable to the contraventions; or (c) if the value of the benefit cannot be determined - 10% of annual turnover during the 12 month period ending at the end of the month in which the act or omission occurred or started to occur. In the present case:

(a)    there is no evidence as to the benefit that Dodo, iPrimus or Vocus obtained directly or indirectly that is reasonably attributable to the contravening conduct. In the circumstances, a determination of the benefit obtained under s 224(3A)(b) cannot be made; and

(b)    the contributions of Dodo and iPrimus to Vocus’ annual turnover in the 12 months ending September 2018 were $358.4 million and $126.8 million respectively. 10% of that annual turnover was $35.8 million and $12.6 million respectively, which amounts are the maximum penalty amounts for each contravention pursuant to s 224(3A). Using the annual turnover of iPrimus for the purpose of the example, the maximum penalty for all contraventions in the period between 1 September 2018 and 2 April 2019, is therefore approximately $86.7 billion (representing $12.6 million by 984 contraventions per month for seven months).

53    Where, as in the present case, a large number of contraventions is involved, the maximum penalty may rise to a number such that there is no meaningful overall maximum penalty. That is the position here. In such cases the appropriate penalty range may be best assessed by reference to other factors: Reckitt at [156]-[157]. In that case the Full Court said at [156]:

Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.

54    As I said in Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 at [28]-[30]:

[28]    The process to be used in setting a civil penalty for contravention of statutory provisions is similar to that used in criminal sentencing: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540; [2015] FCA 330 (Coles Bread Case) at [6] (Allsop CJ); Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd (2005) ATPR 42-070; [2005] FCA 683 at [68] (Gyles J). The maximum penalty must be given due attention because the legislature has seen fit to legislate for them, they invite comparison between the “worst possible case” and the case before the court at the time, and they provide a form of yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].

[29]    In Markarian Gleeson CJ, Gummow, Hayne and Callinan JJ held at [27], [31] and [39] that:

(a)    assessment of the appropriate penalty is a discretionary judgment based on all relevant factors but careful attention to maximum penalties will almost always be required;

(b)    it will rarely be appropriate for a Court to start with the maximum penalty and proceed by making a proportional deduction from that maximum, and the Court should not adopt a mathematical approach of increments or decrements from a predetermined range, or assign specific numerical or proportionate value to the various relevant factors; and

(c)    accessible reasoning is necessary in the interests of all, and, while there may be occasions where some indulgence in an arithmetical process will better serve this end, it does not apply where there are numerous and complex considerations that must be weighed.

[30]    Their Honours described the appropriate sentencing process as one of “instinctive synthesis”. McHugh J described this process (at [51]) as one in which:

… the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

55    As the Full Court said in Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 at [55] (Allsop CJ, Davies and Wigney JJ), in relation to assessing an appropriate pecuniary penalty:

…the task is one that is evaluative, taking into account all the circumstances of the case, not to be reached mechanically or by some illusory process of exactitude, but rather by evaluation that is articulated to a point (but no further) that is useful and meaningful. One starts the process by giving proper weight to the statutory maximum as referable to the most serious kind of contravention.

56    In the present case a potential maximum penalty for the contraventions of approximately $92.1 billion (being the combined maximums for the two periods) means that there is no meaningful maximum penalty.

Imposing penalties for multiple contraventions

57    It is unknown how many consumers viewed the Typical Evening Speed Statements during the relevant period, but the conduct for which penalties are sought potentially gave rise to thousands of legally distinct contraventions. Such contraventions were, however, closely factually interrelated in that they all involved Dodo and iPrimus placing the Typical Evening Speed Statements on their websites when they lacked reasonable grounds to do so.

58    Several principles therefore come into play, including:

(a)    that separate penalties should not be imposed for the same wrongful act;

(b)    the course of conduct principle; and

(c)    the totality principle.

Separate penalties should not be imposed for the same wrongful act

59    The maximum penalty is subject to the statutory limitation in s 224(4) which provides that:

If conduct constitutes a contravention of 2 or more provisions referred to in subsection (1)(a):

(a)    a proceeding may be instituted under this Schedule against a person in relation to the contravention of any one or more of the provisions; but

(b)     a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

60    The purpose of s 224(4) is to prevent separate (and thus cumulative) penalties being ordered for contraventions of two or more provisions of the ACL in respect of the same conduct. Thus, for example, the subsection would operate so as to prevent the Court from imposing two pecuniary penalties in respect of Dodo’s or iPrimus’ conduct in the present case—one for contraventions of s 29 and additional penalties for contraventions of s 34: Australian Competition and Consumer Commission v Jetstar Airways Pty Limited (No 2) [2017] FCA 205 at [16]-[17] (Foster J).

61    The requirement to avoid penalising the respondents twice for the same offending conduct is material to my view that penalties in the amount sought are appropriate.

The course of conduct principle

62    The ACL does not require the Court to treat a course of conduct involving multiple acts or omissions as a single contravention and, beyond the setting of a maximum penalty, there is no statutory limitation on the pecuniary penalty that may be imposed in respect of contraventions of ss 29 and 34: Coles Bread case at [16].

63    The course of conduct principle recognises, however, that where there is sufficient interrelationship in the legal and factual elements of the acts or omissions that constitute a contravention, the Court may, in its discretion, penalise the acts or omissions as a single course of conduct. The question as to whether contraventions should be treated as a single course of conduct involves consideration of all the circumstances of the case.

64    The principle was explained in Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 (Middleton and Gordon JJ) at [47] as follows:

What the single course of conduct principle recognises is that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality.

65    The Court also noted (at [41]):

In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a Court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion…. It is a tool of analysis… which a Court is not compelled to utilise.

(Citations omitted, emphasis in original.)

66    In Royer v Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 at [22] (Owen JA) his Honour said:

At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.

(Emphasis added.)

67    The principle does not operate to limit the maximum penalty (Coles Bread case at [17) and it does not have paramount importance in the determination of an appropriate penalty. Nor does it operate as a fetter on the proper application of legislation regarding the factors to be considered in the assessment of a pecuniary penalty, or as a de facto limit on the penalty that can be imposed in the discretion of the Court: Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698 at [24]-[25] (Beach J), approved by the Full Court in Reckitt Benckiser at [141] and in Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 at [425]-[426] (Middleton, Beach and Moshinsky JJ).

68    I accept the parties’ submission that in the circumstances of this case it is appropriate to treat the contraventions as a single course of conduct for each respondent. That is so because the contraventions of each respondent flow from systemic deficiencies in the Vocus Methodology for determining internet connection speeds in busy periods, which deficiencies meant that Dodo and iPrimus did not have reasonable grounds for making the Typical Evening Speed Representations.

The parity principle

69    As I said in Australian Competition and Consumer Commission v SMS Global Pty Ltd [2011] FCA 855 at [80]:

Assessments of penalty in analogous cases may provide guidance to the Court to ensure equal treatment in similar circumstances, meeting the principle of equal justice. However, those cases show that the circumstances in different cases are rarely the same, which means that it is difficult to apply this principle, and when applied it is a guide only: Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170 at [10]-[17] per Sackville J and [52]-[60] per Merkel J; Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (No 2) [2002] FCA 192; 201 ALR 618 at [17]; NW Frozen Foods at 295; and ACCC v Telstra at [210].

70    The Full Court has repeatedly emphasised that, although similar contraventions should incur similar penalties, the differing circumstances of individual cases mean that a penalty in one case cannot dictate the penalty in a later case; as a result, comparisons with previous penalties will rarely be useful: Singtel Optus at [60]; Flight Centre at [69]; NW Frozen Foods at 295-6.

71    The object of parity in the present context is not to secure numerical consistency but to ensure the consistent application of legal principle to similar cases: McDonald v Australian Building and Construction Commissioner [2011] FCAFC 29; (2011) 2020 IR 467 at [23]-[25] (North, McKerracher and Jagot JJ).

72    In the present case the Court was not taken to any comparable cases regarding similar conduct in which pecuniary penalties were imposed and there is no relevant yardstick to use in seeking to achieve parity. I am satisfied that the penalties sought reflect the consistent application of legal principle to similar cases.

The mandatory factors under s 224 of the ACL

73    The discretion applying to the setting of a pecuniary penalty for a contravention of ss 29 and 34 of the ACL must be guided by the applicable statutory provisions. Section 224(2) sets out the mandatory considerations that the Court must have regard to as follows:

(a)    the nature and extent of the acts or omissions and any loss or damage suffered as a result of the act or omission;

(b)    the circumstances in which the acts or omissions took place; and

(c)    whether the person has previously been found by a Court to have engaged in any similar conduct.

74    I now turn to deal with these factors.

The nature and extent of the acts or omissions and any loss or damage suffered as a result of the act or omission

75    It is not possible to identify the number of consumers who saw the Typical Evening Speed Statements during the relevant period; nor how many consumers relied upon those representations in deciding to acquire an NBN Plan through either Dodo or iPrimus.

76    Importantly, there is no evidence that customers of Dodo and iPrimus received internet connection speeds that were lower than those stated in the Typical Evening Speed Statements. There is no evidence that any consumer suffered financial harm through the conduct.

77    Having said that, it is appropriate to accept the parties’ submissions to the effect that the Typical Evening Speed Representations may have caused consumers to choose to acquire NBN plans from Dodo and iPrimus when they may otherwise have made a different, perhaps preferable, choice to acquire such plans through a different RSP. The amount of any such loss suffered by other RSPs is not quantifiable.

78    The fact that there is no evidence that consumers did not receive the represented internet connection speeds and no evidence that they suffered any loss are central to my view that the proposed penalties are sufficient.

The circumstances in which the acts or omissions took place

79    Dodo and iPrimus made the Typical Evening Speed Representations in circumstances where the ACCC had published the guidelines which contained a methodology for testing and measuring the internet download speeds available to consumers during the Busy Evening Period. Through their parent company Vocus the respondents chose not to adopt the methodology proposed as industry best practice by the ACCC and instead developed and applied the Vocus Methodology, which as it eventuated had a number of deficiencies. That is material to the penalties imposed.

Whether Dodo and iPrimus have previously been found by a Court to have engaged in any similar conduct.

80    Dodo and iPrimus have not previously been found to have contravened the ACL, but they have both previously given court enforceable undertakings to the ACCC in relation to conduct which they have admitted likely breached the ACL.

81    These court-enforceable undertakings arise from conduct that occurred between 1 October 2015 and 30 June 2017, during which period iPrimus and Dodo advertised various NBN plans. For example, iPrimus advertised an NBN plan as capable of providing a download speed of 100Mbps and an upload speed of 40Mbps. The conduct affected consumers whose NBN plans used either fibre to the node (FTTN) or fibre to the building (FTTB) technology. Both FTTN and FTTB are susceptible to performance limitations which, when they arise, result in consumers being unable to achieve the maximum speeds of the NBN plan they have purchased. Dodo and iPrimus admitted that they represented to consumers that they were capable of delivering internet services up to the maximum speeds of each of the relevant plans when this was not the case which conduct was likely to have contravened sections 18, 29(1)(b) and (g) of the ACL.

82    In March 2018, Dodo and iPrimus gave court-enforceable undertakings to the ACCC to offer consumer redress to more than 5,000 customers who did not receive the internet speeds they had signed up for because their NBN connection was incapable of delivering such speeds.

83    In July 2019, Dodo gave a court enforceable undertaking to the ACCC to refund up to $360,000 to around 16,000 customers for claims that its entry-level NBN Plans were “perfect for streaming”. The ACCC considered that the representation was false and misleading with respect to NBN plans offering 12/1Mbps, as these consumers would be limited to watching one high-definition (HD) video stream at a time at consistently high quality; would be unable to stream full HD content reliably; and could not stream ultra HD video content at all. For customers who had a monthly data allowance on their NBN plans of 10 gigabytes (GB), the monthly allowance would be expended after only a modest amount of streaming. It followed that a Dodo customer using a 12/1Mbps NBN plan with a monthly data allowance of 10GB did not have an NBN plan which was “perfect for streaming”. Dodo admitted that its conduct was likely to have contravened ss 18, 29(1)(b) and (g) and 34 of the ACL and entered into a court-enforceable undertaking to make consumer redress to those affected customers.

84    Dodo and iPrimus both have a history of similar conduct which likely contravened ss 18, 29 and 34 of the ACL. The fact that the earlier undertakings they gave have not been sufficient to secure their adherence to the requirements of the ACL tends to show that a more severe penalty is necessary to secure specific deterrence: TPG Internet at [62]-[64]. In light of their earlier conduct it can be argued that the penalties sought in the present case might be seen by Dodo and iPrimus as just “an acceptable cost of doing business”.

85    For the reasons previously described in relation to deterrence I take a different view. In the particular circumstances the case I consider the proposed penalties are likely to be sufficient to provide a sufficient sting or burden for the respondents and are unlikely to be seen as merely a cost of doing business.

Other relevant factors

86    Other relevant factors are often referred to as discretionary factors, although as Edelman J observed in Australian Competition and Consumer Commission v Woolworths Ltd [2016] FCA 44 at [123] they are not truly discretionary. Once the factors become relevant they are considerations that the Court must have regard to. The factors that have commonly been treated as relevant were conveniently summarised by Perram J in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761; (2011) 282 ALR 246 at [11] as follows:

(a)    The size of the contravening company.

(b)    The deliberateness of the contravention and the period over which it extended.

(c)    Whether the contravention arose out of the conduct of senior management of the contravenor or at some lower level.

(d)    Whether the contravener has a corporate culture conducive to compliance with the Act as evidenced by educational programmes and disciplinary or other corrective measures in response to an acknowledged contravention.

(e)    Whether the contravener has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act.

(f)    Whether the contravener has engaged in similar conduct in the past (see also: s 224(2)(c)).

(g)    The financial position of the contravener.

(h)    Whether the contravening conduct was systematic, deliberate or covert.

87    I now turn to deal with these factors.

The size and financial position of the contraveners

88    Vocus, the parent company of Dodo and iPrimus, is a substantial publicly listed company. Its revenues in FY18/19 totalled $1,892.3 million. Dodo and iPrimus respectively contributed $322.2 million and $$122.8 million to those amounts. Each of Dodo and iPrimus are substantial commercial entities and have the capacity to pay a higher penalty than that proposed.

89    It can be argued that the proposed penalties constitute a small fraction of the respondents’ annual turnover and that the penalties may be seen as merely a cost of doing business. For the reasons previously explained, I do not accept that. I consider the proposed penalties carry a sufficient sting or burden in circumstances where: (a) they reflect the objective seriousness of the offending conduct in which there is no evidence that consumers did not receive the internet connection speeds that were represented, and no evidence that consumers suffered any loss: (b) penalties of $1.5 million and $1 million respectively are plainly substantial; (c) the penalties are more than three times the cost to Dodo and iPrimus of the earlier consumer redress orders to which they were subject; and (d) the penalties take account of the early cooperation of Dodo and iPrimus with the ACCC.

The deliberateness of the contravening conduct and the period over which it extended

90    I am satisfied that the contravening conduct was deliberate. On any view, the Vocus Methodology involved the selection of sample data which failed to accurately reflect the likely speeds that the majority of consumers with Dodo and iPrimus NBN plans were receiving and could expect to receive during the Busy Evening Period. Given that the Vocus Methodology was designed by Vocus’ engineers, who could be expected to understand the spectrum of the data that they were sampling from, it is likely to have been clear that the average speeds for each speed tier was substantially lower than that obtained at the top of the range.

91    Additionally, the guidelines were current throughout the relevant period. The guidelines did not result in the same vice in sampling because the method for measuring and verifying busy period speeds was randomised and provided a truer representative sample of the average speeds that were actually available to consumers for each speed tier available under the relevant NBN plan offered by RSPs. That Vocus’ engineers had a methodology preferred by the ACCC for calculating average speeds available to NBN plan consumers and chose instead to develop and use the their own methodology is significant to the view I have reached in relation to the penalties.

92    The contravening conduct took place over a substantial period of time and was not limited to a small number of contraventions. This is relevant to the assessment of the objective seriousness of the contravening conduct and is also significant to the view I have reached in relation to the penalties to be imposed.

Whether the contravention arose out of the conduct of senior management

93    Dodo and iPrimus relied upon the Vocus Methodology for the purposes of identifying the internet connection speeds represented in the Typical Evening Speed Statements. The Vocus Methodology was developed by Vocus’ Network Engineering department who were not involved in the manner in which the outputs of the methodology were displayed on the Dodo and iPrimus websites. The Vocus employees involved in developing and implementing the Vocus Methodology, and those who had oversight of those employees, included the managers of network engineering, product engineering, data analytics and NBN consumer products, who finalised and uploaded the final Typical Evening Speed Statements to the Dodo and iPrimus websites. There is no evidence to suggest that senior management had knowledge of the Vocus Methodology or how the speeds were being used in the Evening Speed Statements until sometime after the ACCC commenced its investigation on 9 April 2018. This acknowledges that on and from 9 April 2018, senior management of both Dodo and iPrimus were on notice that the ACCC had concerns about the Typical Evening Speed Statements. This too is significant to the view I have reached in relation to penalty.

Whether the contravener has a corporate culture of compliance with the Act

94    During the relevant period Dodo and iPrimus had in place compliance programs which included training with respect to consumer laws and practices in Australia. These compliance programs particularly focused on ss 18 and 29 of the ACL. Senior staff at both Dodo and iPrimus undertook more detailed compliance training provided by Vocus’ legal and compliance team. The senior staff training focused on the responsibility of senior executive staff as senior members of the organisation.

95    Vocus has a Risk Manager and Compliance Risk Manager, who are tasked with designing, implementing and maintaining a compliance program across the Vocus Group. The Risk Manager had direct engagement with the Board of Vocus (particularly the Risk Committee).

Whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the Act

96    The parties submit and I accept that Dodo and iPrimus have co-operated with the ACCC in relation to the conduct the subject of the proceeding as follows:

(a)    Vocus met with the ACCC on a number of occasions to seek to resolve the ACCC’s concerns and was proactive in seeking to settle the matter; and

(b)    Dodo and iPrimus admitted liability and agreed to the jointly proposed relief to settle the proceeding at an early stage, thereby entirely avoiding the need to prepare for, or conduct, a contested hearing in relation to liability or penalty.

97    I accept the parties’ submissions that Dodo and iPrimus fully cooperated with the ACCC’s investigation and these proceedings and that they are therefore entitled to a significant discount to any penalty to be imposed.

Whether the contraveners accepts responsibility for the contraventions, including by expressing remorse or contrition

98    Dodo and iPrimus have made admissions in respect of the contravening conduct but have not apologised or expressed remorse for the contravening conduct. I do not see the absence of such an expression as a matter of any great significance.

Whether compensation is to be paid to the affected consumers

99    The materials do not identify that any consumer relied on the Typical Evening Speed Representations in acquiring an NBN plan from Dodo or iPrimus, although it is reasonable to proceed on the assumption that some unidentified number of consumers did so. Nor does the evidence show that, in fact, the internet connection speeds available to consumers during the Busy Evening Period in the relevant period were less than those advertised. In the circumstances there is no evidence to justify a consumer redress order and no such orders were sought.

The totality principle

100    The Court must apply this principle to ensure that, overall, the total penalty does not exceed what is appropriate for the entirety of the contravening conduct involved. It operates as a final check to ensure that the aggregate penalty imposed for a course of conduct is just and proportionate to the circumstances of the case: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63 (Wilson, Deane, Dawson, Toohey, Gaudron JJ); Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450 at [40]; (1997) 145 ALR 36 at 53 (Goldberg J).

101    I accept the parties’ submissions that penalties of $1.5 million and $1 million respectively for what I accept were single courses of conduct respectively are just and appropriate for the entirety of the contravening conduct.

Conclusion regarding penalty

102    Having regard to the above considerations, particularly the fundamental requirement for the penalty to operate as a specific and general deterrent, I am satisfied that it is appropriate to order that Dodo and iPrimus pay pecuniary penalties of $1.5 million and $1 million respectively.

Costs

103    I am also satisfied it is appropriate to order the respondents to make a contribution to the ACCC’s costs order in the amount of $75,000.

Associate:

Dated:    1 June 2021