FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Dell Australia Pty Ltd [2023] FCA 588

ORDERS

THE COURT DECLARES THAT:

1.    In the period from August 2019 to December 2021, the Respondent, Dell Australia Pty Ltd (Dell), in trade or commerce:

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

(b)    in connection with the supply or possible supply of goods or in connection with the promotion of the supply of goods, made false or misleading representations with respect to the price of those goods in contravention of section 29(1)(i) of the ACL,

by representing on the website accessible at www.dell.com.au, https://www.dell.com/en-au and from October 2020 at deals.dell.com/en-au (Dell Website), in respect of monitors offered for sale to consumers who had selected a computer for purchase on the Dell Website (as an Add-on):

(c)    where a higher price displayed in strikethrough form (Strikethrough Price) was displayed for a monitor when offered as an Add-on:

(i)    that the amount of the discount that a consumer purchasing the monitor would receive was equivalent to the difference between the Strikethrough Price and the price for purchase of the monitor when that was false or misleading because, in fact, a consumer who purchased that monitor as an Add-on would not have saved the difference between the Strikethrough Price and the purchase price;

(ii)    that the Strikethrough Price was the price at which the monitor was offered for sale to consumers before the discount was applied when that was false or misleading because, in fact, the Strikethrough Price was not the price at which the monitor was offered for sale before the discount was applied;

(iii)    that the Strikethrough Price was the standard price at which the monitor was offered for sale to consumers absent any discounts, being the “everyday price” of a product sold on the Dell Website absent any discounts, when that was false or misleading because, in fact, the Strikethrough Price was not the standard price at which the Add-on Monitor was offered for sale on the Dell Website absent any discounts;

(d)    that the purchase price displayed for a monitor offered as an Add-on was at least equal to the cheapest price that the monitor was available to consumers on a standalone basis on the Dell Website, when that was false or misleading because, in fact, the monitor was available for purchase on the Dell Website on a standalone basis at a cheaper price than it was as an Add-on;

(e)    on one of the URLs within the Dell Website, known as the “Special Events Platform”, from October 2020, that the purchase price displayed for a monitor offered as an Add-on was the best price for those goods offered by Dell when that was false or misleading because, in fact, the monitor was available for purchase on the Dell Website at a cheaper price.

BY CONSENT, THE COURT ORDERS THAT:

2.    Pursuant to section 239 of the Australian Consumer Law (ACL), Dell implement a consumer redress regime in accordance with the terms of Annexure A to this order.

3.    Pursuant to section 246(2)(b) of the ACL, Dell, at its own expense:

(a)    within 30 days of the date of this Order, appoint a suitably qualified compliance professional with expertise in consumer law who is independent of Dell and has not previously been engaged by Dell (Reviewer) to review the efficacy of:

(i)    Dell’s internal compliance program pertaining to managing the risk of contraventions of the ACL of the nature of those the subject of this proceeding occurring on the Dell Website (Compliance Program);

(ii)    the process adopted by Dell for internal review of representations by Dell to Australian consumers regarding price, insofar as that process pertains to managing the risk of contraventions of the ACL (Review Process) of the nature of those the subject of this proceeding occurring on the Dell Website; and

(iii)    Dell’s implementation of the Compliance Program and Review Process;

(b)    instruct the Reviewer to prepare a written report to Dell within a period of 3 months of the date of their appointment that makes recommendations which identify:

(i)    any revisions to Dell’s Compliance Program and Review Process, and Dell’s implementation of that program and process, that are reasonably necessary to limit the risk of future contraventions of the ACL of the nature of those the subject of this proceeding; and

(ii)    any material deficiencies in the Compliance Program, Review Process or Dell’s implementation of that program or process that are reasonably necessary to be rectified, and should be rectified, to limit the risk of future contraventions of the ACL of the nature of those the subject of this proceeding;

(c)    use reasonable endeavours to provide the Reviewer with access to all sources of information in Dell’s possession, power or control that is relevant to the Reviewer’s review;

(d)    within 30 business days of receiving the Reviewer’s written report, provide a copy of that report to the Applicant;

(e)    use reasonable endeavours to implement with due diligence any recommendations made by the Reviewer; and

(f)    maintain the Compliance Program (as revised) for a period of three years.

4.    Pursuant to section 246(2)(c) of the ACL requiring Dell to issue, at its own expense within 14 days of this order, a corrective notice to each consumer who purchased a monitor as an Add-on in the same transaction as a computer through the Dell Website during the period from August 2019 to December 2021 informing the consumer of the Court’s findings and any order for consumer redress, in the form set out in Annexure B to this order, or in the form set out in Annexure C to this order for those who had previously notified Dell that they wished to donate their refund to charity.

5.    Dell file (except for the affidavit at subparagraph (c)) and serve on the Applicant:

(a)    an affidavit verifying that it has carried out its obligations under paragraph 2, to be served within 21 days of the date for completion of the consumer redress measures required pursuant to that order, which is to include (at least):

(i)    the number of consumers granted redress and amounts paid; and

(ii)    the number of consumers referred to in paragraph 2 not granted redress and the reasons that is the case;

(b)    an affidavit verifying that it has carried out its obligations under subparagraphs 3(a) to (e), to be served within 6 months of this order;

(c)    an affidavit verifying that it has carried out its obligations under subparagraph 3(f), to be served within 3 years and 6 months of this order; and

(d)    an affidavit verifying that it has carried out its obligations under paragraph 4, to be served within 21 days of this order.

6.    Pursuant to section 37P(2) of the Federal Court of Australia Act 1976 (Cth), the determination of the applicant’s entitlement to relief in terms of prayers 2 and 7 of the originating application dated 4 November 2022 (the Originating Application) be listed for hearing at 10.15 am on 14 August 2023.

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

Annexure A

CONSUMER REDRESS REGIME TO BE IMPLEMENTED BY DELL

1.    To date, Dell has implemented and concluded a remediation program as identified in Part I, paragraphs 65 to 77 of the further amended statement of agreed facts filed in this proceeding on 2 June 2023 (SOAF) in respect of certain consumers.

Consumers to be remediated

2.    In respect of the consumers identified at Part I, paragraphs 78 to 81 of the SOAF, Dell will provide the following remediation.

3.    For those consumers who purchased an Add-on Monitor subject to a Strikethrough Representation in circumstances where those representations were false or misleading and have not been remediated to date, they will be offered a refund of the price paid for the Add-on Monitor plus interest.

4.    For those consumers who have received partial refunds to date, but have been identified as also having purchased Add-on Monitors subject to the Strikethrough Representations in circumstances where those representations were false or misleading, they will be offered a further refund of the remaining price paid for the Add-on Monitor plus interest.

5.    For those consumers who are “Overcharged Consumers” (as defined in paragraph 65(a) of the SOAF) who purchased Add-on Monitors which were not the subject of Strikethrough Representations, and who have not been included in the remediation program to date, they will be offered a partial refund for the overcharge amount associated with their purchase of an Add-on Monitor.

6.    For those consumers who have already been contacted by Dell as part of the concluded remediation program, but have failed to respond to Dell’s communications and thus have not been remediated, they will be remediated if they contact Dell within 90 days of the date of the corrective notice referred to in paragraph 4 of these orders indicating that they wish to accept the remediation proposal set out in that notice.

Characteristics of remediation program

7.    The remediation amount will include interest at the Reserve Bank of Australia cash rate plus 6%, calculated from the date of purchase payment to the date these orders are made.

8.    Payment will be made to consumers by electronic funds transfer. The initial communication to the consumer will propose a refund via the electronic funds transfer payment method used in their original purchase of the Add-on Monitor. If the consumer did not use electronic funds transfer for the original purchase, or their bank details have since changed, they will be asked to provide current details, for a bank transfer.

9.    Dell will make three attempts to contact consumers within the scope of this remediation (that is, including those who have been previously contacted by Dell for remediation purposes, other than those who have been remediated in full), using the contact details provided by the consumers when purchasing the Add-on Monitors, or as may have been updated by the consumer. This will include:

a.    by email in the first instance;

b.    if the email contact is not responded to, by phone call (two attempts);

c.    if the phone call was not connected because the number was no longer in use, consumers will be contacted by post; and

d.    a final reminder email which will be sent to consumers, requesting a response by a stipulated date, as follows:

10.    Dell will not process refunds where the consumer has not responded, or has responded but not confirmed that they wish to accept the refund.

11.    The date for completion of the consumer redress measures required is 120 days after the date of the corrective notice referred to in paragraph 4 of these orders.

Annexure B

Communication with Consumers

Corrective notice to be sent via email:

•    Subject “Refunds from Dell following ACCC proceeding”

•    From: [specific, monitored email address for remediation program]

•    To: each consumer who purchased a monitor as an Add-on in the same transaction as a computer through the Dell Website during the period from August 2019 to December 2021, except for those who have previously been contacted by Dell and elected to have the refund previously offered donated to charity

•    Body of email: as set out below.

[Include Dell logo]

Dear [Customer name]

You are entitled to a refund from Dell

You are entitled to a refund from Dell Australia Pty Ltd (Dell) following a recent court action brought by the Australian Competition and Consumer Commission (ACCC). More information on the action taken by the ACCC is available on the ACCC’s website at [media release URL to specific ACCC announcement regarding Federal Court decision in this matter].

This email relates to your purchase of [insert product] on [date] for [price].

Your refund entitlement has been calculated as $[total amount].

If you have concerns about this email, including if you’re worried that it might be a scam, you can find out more by searching for ‘Dell’ on the ACCC website at: www.accc.gov.au.

[Where Dell does hold current EFT details] If you originally paid by electronic funds transfer (and not credit card) and those account details remain current, you do not need to provide any financial details to claim your refund entitlement, but you do need to reply to this email to opt in. [to be excluded where the consumer has already received the full refund entitlement]

[Alternative where Dell does not hold current EFT details:] You need to reply to this email to opt-in. As Dell does not hold [current / any] electronic funds transfer details for you, please provide your current electronic funds transfer details when you reply to us. [to be excluded where the consumer has already received the full refund entitlement]

As a result of the proceeding, refunds are being given by Dell to customers who purchased a monitor as an add-on (or in a “bundle”) in the same transaction as a computer (Add-on Monitor) through the Dell Website between August 2019 and December 2021.

The process for receiving this refund is also detailed further below. OR As Dell has already refunded this amount to you on [date], no further action is required. OR As Dell has already refunded $[amount] to you on [date], a further refund amount of $[amount] is now payable. The process for receiving this refund is also described below.

How to claim your refund? [to be excluded where the consumer has already received the full refund entitlement]

You must contact us by replying to this email [email address] by [date 90 days from the date of this letter in bold] confirming that you wish to accept the refund. [to be excluded where the consumer has already received the full refund entitlement]

The refund will be paid by electronic funds transfer. If your bank details have changed, or if you did not originally pay by electronic funds transfer (for example, if you paid by credit card), you can specify your current electronic funds transfer details in your email to us. [to be excluded where the consumer has already received the full refund entitlement]

You will not receive the outstanding refund amount if we do not receive a response from you by [date 90 days from the date of this letter in bold], or if you inform us that you do not wish to receive the outstanding refund amount. [The Court notes that this communication may also include the following: That amount will instead be donated to the charity Vinnies (St Vincent de Paul Society).] [to be excluded where the consumer has already received the full refund entitlement]

Background

The Federal Court of Australia has ordered Dell to implement a customer refund program upon finding that, from 1 August 2019 to 16 December 2021, Dell misled Australian consumers about the prices of Add-on Monitors being offered for sale on the Dell Website, including through the misleading use of “strikethrough” prices.

Why you are entitled to a refund from Dell

You purchased at least one Add-on Monitor between 1 August 2019 and 16 December 2021 on the internet at either www.dell.com.au, www.dell.com/en-au or deals.dell.com/en-au (together, the Dell Website) in circumstances where:

How your refund is calculated

Your refund entitlement is based on [Alternatives as applicable for the particular consumer]

[where the consumer has been identified as having purchased an Add-on Monitor subject to a Strikethrough Representation in circumstances where that representation was false or misleading (including a consumer to whom a false or misleading Purchase Price Representation was also made)] the price paid for the Add-on Monitor plus interest at the RBA cash rate plus 6%.

OR

[where the consumer has been identified as having purchased an Add-on Monitor subject to a Purchase Price Representation (only) in circumstances where that representation was false or misleading]the difference between the purchase price of the Add-on Monitor and the price at which the same monitor was available on a standalone basis, plus interest at the RBA cash rate plus 6%.

[Alternatives if applicable for the particular consumer] As you have already been refunded the above amount by Dell on [date], you will not receive any further refund. OR The refund amount you receive will be reduced by the partial refund amount of [amount] already paid to you by Dell on [date].

Contact us if you have any questions

If you have any queries or concerns regarding this refund, please contact us at [email address dedicated to the remediation process] or +61 [phone number dedicated to the remediation process].

[Insert sign off for Dell Australia]

Annexure C

Communication with Consumers

Corrective notice to be sent via email:

•    Subject “Refunds from Dell following ACCC proceeding”

•    From: [specific, monitored email address for remediation program]

•    To: each consumer who purchased a monitor as an Add-on in the same transaction as a computer through the Dell Website during the period from August 2019 to December 2021, who have previously been contacted by Dell and elected to have the refund previously offered donated to charity

•    Body of email: as set out below.

[Include Dell logo]

Dear [Customer name]

You are entitled to a refund from Dell

You are entitled to a refund from Dell Australia Pty Ltd (Dell) following a recent court action brought by the Australian Competition and Consumer Commission (ACCC). More information on the action taken by the ACCC is available on the ACCC’s website at [media release URL to specific ACCC announcement regarding Federal Court decision in this matter].

This email relates to your purchase of [insert product] on [date] for [price].

Your refund entitlement as a result of the court action has been calculated as $[total amount].

Dell had previously contacted you in relation to this refund and you had elected to donate that amount to charity. [OR – where partial refund had been offered] Dell had previously offered you a refund of $[amount] to you on [date], and you had elected to donate that amount to charity.

In light of the ACCC’s court action, please let us know if you have changed your mind, and would like to receive the refund, following the process below. [The Court notes that this communication may also include the following: If we don’t hear anything further from you in the next 90 days, we will process the donation.] [OR – where partial refund had been offered] In light of the ACCC’s court action, please let us know if you would like to receive the further refund, and also if you have changed your mind and would like to receive the initial refund amount, following the process below. [The Court notes that this communication may also include the following: If we don’t hear anything further from you in the next 90 days, we will process the donation in the full amount of your refund entitlement to charity after 90 days.]

If you have concerns about this email, including if you’re worried that it might be a scam, you can find out more by searching for ‘Dell’ on the ACCC website at: www.accc.gov.au.

[Where Dell does hold current EFT details] If you originally paid by electronic funds transfer (and not credit card) and those account details remain current, you do not need to provide any financial details to claim your refund entitlement, but you do need to reply to this email to opt in.

[Alternative where Dell does not hold current EFT details:] If you would like to receive a refund, you need to reply to this email to opt-in. As Dell does not hold [current / any] electronic funds transfer details for you, please provide your current electronic funds transfer details when you reply to us

As a result of the proceeding, refunds are being given by Dell to customers who purchased a monitor as an add-on (or in a “bundle”) in the same transaction as a computer (Add-on Monitor) through the Dell Website between August 2019 and December 2021.

The process for receiving this refund is also detailed further below.

How to claim your refund?

You must contact us by replying to this email [email address] by [date 90 days from the date of this letter in bold] confirming that you wish to accept the refund.

The refund will be paid by electronic funds transfer. You can specify your current electronic funds transfer details in your email to us.

You will not receive the refund amount if we do not receive a response from you by [date 90 days from the date of this letter in bold], or if you inform us that you do not wish to receive the refund amount. [The Court notes that this communication may also include the following: That amount will instead be donated to the charity Vinnies (St Vincent de Paul Society).]

Background

The Federal Court of Australia has ordered Dell to implement a customer refund program upon finding that, from 1 August 2019 to 16 December 2021, Dell misled Australian consumers about the prices of Add-on Monitors being offered for sale on the Dell Website, including through the misleading use of “strikethrough” prices.

Why you are entitled to a refund from Dell

You purchased at least one Add-on Monitor between 1 August 2019 and 16 December 2021 on the internet at either www.dell.com.au, www.dell.com/en-au or deals.dell.com/en-au (together, the Dell Website) in circumstances where:

How your refund is calculated

Your full refund entitlement is based on [Alternatives as applicable for the particular consumer]

[where the consumer has been identified as having purchased an Add-on Monitor subject to a Strikethrough Representation in circumstances where that representation was false or misleading (including a consumer to whom a false or misleading Purchase Price Representation was also made)] the price paid for the Add-on Monitor plus interest at the RBA cash rate plus 6%.

OR

[where the consumer has been identified as having purchased an Add-on Monitor subject to a Purchase Price Representation (only) in circumstances where that representation was false or misleading] the difference between the purchase price of the Add-on Monitor and the price at which the same monitor was available on a standalone basis, plus interest at the RBA cash rate plus 6%.

Contact us if you have any questions

If you have any queries or concerns regarding this refund, please contact us at [email address dedicated to the remediation process] or +61 [phone number dedicated to the remediation process].

[Insert sign off for Dell Australia]

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    In these proceedings, the Australian Competition and Consumer Commission (ACCC), makes claims against Dell Australia Pty Ltd (Dell) as to contraventions of ss 18 and 29(1)(i) of the Australian Consumer Law (ACL), being Sch 2 to the Competition and Consumer Act 2010 (Cth) (CCA).

2    On 1 December 2022, the Court ordered that the issues of the ACCC’s entitlement to the relief sought in paragraphs 1, 3, 4 and 5 of the originating application dated 4 November 2022 be heard separately and before the balance of the issues in the proceeding (namely penalty, costs and an affidavit verifying compliance with paragraphs 3, 4 and 5). The claims for relief identified to be determined separately at this hearing relate only to declarations, consumer redress, compliance orders and corrective notice orders. The ACCC no longer seeks an order, in the alternative, pursuant to s 246(2)(d) of the ACL as identified in paragraph 4 of the originating application.

3    The parties have reached agreement on the appropriate form of orders to address each of the issues identified for separate determination. In summary, the parties are agreed that the Court ought to make declarations that Dell contravened ss 18 and 29(1)(i) of the ACL together with consumer redress, compliance and corrective notice orders.

4    The parties have also agreed upon a statement of facts entitled Further Amended Agreed Background Facts and Admissions filed on 2 June 2023 (SOAF) pursuant to s 191 of the Evidence Act 1995 (Cth) in support of the orders sought.

Factual background

5    Between 1 August 2019 and 16 December 2021 (the Relevant Period), Dell promoted and supplied a range of desktops, laptops and notebooks (Computers) through its website which was accessible at three different URLs (Dell Website): SOAF [10]. Dell was responsible for the content published on the Dell Website, including the display of any prices, discounts and statements: SOAF [11].

Add-on Monitors

6    During the Relevant Period, a consumer could purchase one or more monitors through the Dell Website via its own unique product page (on a Standalone Basis) or together with a Computer in a single transaction (an Add-on Monitor): SOAF [16]. When a consumer selected a Computer for purchase on the Dell Website, before completing the transaction, the consumer was offered the option of purchasing additional products from Dell. A selection of monitors available on the Dell Website which were technically compatible with the chosen Computer and which were available in stock at that particular point in time were offered as Add-on Monitors, via the purchase pathways which are described as the Product Page, the Candy Aisle and the Special Events Platform: SOAF [18] and SOAF Section F. Precisely what was displayed to the consumer on the Dell Website is described in detail, with examples of images, in Section F of the SOAF, beginning at paragraph 31. Depending on the nature and size of the consumer’s screen, an Add-on Monitor may not have been initially displayed on the screen, in which case it would only have been displayed on that webpage if the consumer had scrolled down: SOAF [32]. On the Special Events Platform Add-On Monitors were also shown in a subsequent step in the pathway: SOAF [32]. A consumer could have followed one or more of three purchase pathways when considering the purchase of, or purchasing, an Add-on Monitor: SOAF [31].

Pricing of Add-on Monitors on the Dell Website

7    The 138 models of the Add-on Monitors the subject of this proceeding are set out in Annexure A to the SOAF: SOAF [21].

8    During the Relevant Period, where an Add-on Monitor was displayed, its price was frequently displayed as subject to a discount. Each of the dates on which an Add-on Monitor the subject of this proceeding was displayed with a discount are set out in Annexure B to the SOAF. Where an Add-on Monitor and its price were displayed with a discount the following was displayed to consumers on the Dell Website regardless of the purchase pathway:

(a)    a price for the purchase of the Add-on Monitor (Discounted Purchase Price); and

(b)    a higher price than the Discounted Purchase Price in strikethrough form (Strikethrough Price): SOAF [26].

9    Dell admits that, to incentivise customers to purchase an Add-on Monitor, its general strategy was that a price known within Dell as the Retail Price, which it described as the “everyday price” displayed for products sold on the Dell Website, was to be displayed in strikethrough as the Strikethrough Price: SOAF [23(b)], [25]. Further, Dell’s strategy was that the price of an Add-on Monitor should be the same or better than the price at which the monitor was offered for sale on a Standalone Basis: SOAF [25].

10    In respect of the Add-on Monitors which are the subject of this proceeding, this strategy was not implemented by Dell: SOAF [25]. Instead, a price known as the List Price within Dell (or, in a small number of cases on the dates set out in Annexure C of the SOAF, another price which was below the List Price but not a price at which the monitor was offered for sale) appeared in strikethrough as the Strikethrough Price: SOAF [27]. The List Price was the sum of the cost price of each of the component parts of the monitor plus a margin. It is used to derive the lower Retail Price: SOAF [23(a)(ii)]. Consistent with its intended use as an internal price mechanism, the List Price was not intended by Dell to be displayed on the Dell Website as a price at which an Add-on Monitor could be purchased: SOAF [23(a)].

11    The pricing described in the preceding paragraph arose in circumstances where:

(a)    Dell’s internal data mapping process drew information for Add-on Monitors from a different source to that for monitors offered for sale on a Standalone Basis; and

(b)    planned and ad hoc pricing adjustments, including discounts, made by Dell throughout the quarter to a monitor offered for sale on a Standalone Basis, were incorrectly not applied to the Add-on Monitors: SOAF [29].

12    As a consequence of those matters, during the Relevant Period, with exceptions on the particular dates set out in Annexure D of the SOAF:

(a)    the Strikethrough Price displayed for Add-on Monitors was not a price that the consumer would have paid for the monitor if they had purchased the item, whether as an Add-on Monitor or on a Standalone Basis; and

(b)    the Strikethrough Price displayed for Add-on Monitors was higher than any of the prices at which the monitor was, in fact, supplied to consumers by Dell, or offered for sale to consumers by Dell, whether as an Add-on Monitor or on a Standalone Basis: SOAF [28].

Other statements on the Dell Website

13    In addition to the Discounted Purchase Price and the Strikethrough Price, and subject to the matters noted in SOAF [32], other statements were displayed to a consumer regarding the price of the Add-on Monitor on the Dell Website, depending on the purchase pathway followed by the consumer. The statements are described in detail in Section F of the SOAF and include:

(a)    the words “Includes x% off” with the percentage amount calculated on the basis of the difference between the Strikethrough Price and the Discounted Purchase Price: SOAF [36(a)];

(b)    the words “Total Savings” and a dollar amount inclusive of the difference between the Strikethrough Price and the Discounted Purchase Price: SOAF [36(b)(i)];

(c)    the words “Discounted Price” and a dollar amount inclusive of the Discounted Purchase Price: SOAF [36(b)(ii)];

(d)    in the “For Business” section of the Candy Aisle, “‘Online price’ is Dell’s current online price, available to customers purchasing a maximum of 10 units via Dell’s website. The online price is not Dell’s list price. No discounts apply to the online price other than stated on Dell’s website”: SOAF [37], Example 1; and

(e)    on the Special Events Platform, “Get the best price for popular accessories when purchased with this product”: SOAF [44(b)].

14    The purchase pathways described as the Product Page and Candy Aisle were available on the Dell Website for the whole of the Relevant Period. The purchase pathway described as the Special Events Platform was only available from October 2020 to the end of the Relevant Period: SOAF [41].

Legal Principles

Section 18 of the ACL – misleading or deceptive conduct

15    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. The ACL applies to the conduct of corporations and in relation to contraventions of s 18 by corporations: CCA, s 131(1).

16    “Trade or commerce” is defined in s 2 of the ACL to “include any business” and may be within Australia or between Australia and places outside Australia. A representation on a website is made in Australia if a consumer could access and view the relevant representation from their computer in Australia: Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224; (2017) 258 FCR 190 at [134] (Dowsett, McKerracher and Moshinsky JJ).

17    In Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8, the four steps in determining if a person has contravened s 18 of the ACL were set out in a unanimous judgment of the Court (at [80]):

(a)    first, identify with precision the conduct said to contravene s 18;

(b)    second, consider whether the conduct was conduct in “trade or commerce”;

(c)    third, consider what meaning the conduct conveyed; and

(d)    fourth, determine whether the conduct, in light of its meaning, was “misleading or deceptive or…likely to mislead or deceive”.

18    A representation is misleading if it has a tendency to lead a person into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [39] (French CJ, Crennan, Bell and Keane JJ). The threshold “likely to be” is satisfied where there is a real and not remote possibility that conduct will mislead or deceive: Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; (2021) 392 ALR 205 at [89] (Rares, Murphy and Abraham JJ).

19    The question of whether conduct is misleading or deceptive or likely to mislead or deceive is a question of fact that must be determined in light of the relevant surrounding facts and circumstances, and by reference to the conduct as a whole: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [109] (McHugh J), applied in Self Care at [81]. It is an objective question that the Court must determine for itself: Butcher at [109] (McHugh J), quoted in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102] (Gummow, Hayne, Heydon and Kiefel JJ).

20    Where conduct is not directed at particular individuals but, rather, the public or part of the public, whether conduct is misleading or deceptive or likely to mislead or deceive is to be “undertaken by reference to the effect or likely effect of the conduct on reasonable members of the relevant class of persons”: Self Care at [83]. The High Court in Self Care described the process of identifying the relevant class in the following way (at [83]):

The relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable "representative member" (or members) of that class, to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind. This hypothetical construct "avoids using the very ignorant or the very knowledgeable to assess effect or likely effect; it also avoids using those credited with habitual caution or exceptional carelessness; it also avoids considering the assumptions of persons which are extreme or fanciful”. The construct allows for a range of reasonable reactions to the conduct by the ordinary and reasonable member (or members) of the class [citations omitted].

21    It is not necessary to establish that a significant number or a “not insignificant number” of reasonable persons within the relevant class were misled or deceived or likely to have been misled or deceived: State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2022] FCAFC 57; (2022) 399 ALR 704 at [59] (Jagot, Burley and Rofe JJ) citing Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; (2020) 278 FCR 450 at [23]-[24] (Wigney, O’Bryan and Jackson JJ) and Trivago N.V. v Australian Competition and Consumer Commission [2020] FCAFC 185; (2020) 384 ALR 496 at [192], [193] and [206] (Middleton, McKerracher and Jackson JJ).

22    The Court considered whether representations were false or misleading in the context of strikethrough pricing, albeit in a catalogue, in Australian Competition and Consumer Commission v Ascot Four Pty Ltd [2008] FCA 1295; (2008) 250 ALR 467 (Mansfield J). The decision was appealed: Ascot Four Pty Ltd v Australian Competition and Consumer Commission [2009] FCAFC 61; (2009) 176 FCR 106 (Black CJ, Ryan and Jagot JJ) (Ascot Four Appeal). In Ascot Four, the ACCC alleged that representations about the price of 11 items of jewellery in a catalogue were false or misleading representations about the price of goods contrary to s 75AZC(1)(g) of the Trade Practices Act 1974 (Cth) (TPA). Each item of jewellery was displayed with a purchase price in red large print and a strikethrough price in smaller black print: Ascot Four Appeal at [5]. At first instance, Mansfield J found that the catalogue conveyed to the consumer a relationship between the purchase price and the strikethrough price and that there was a representation to the effect that if a consumer purchased an item of jewellery “there would be a saving of the difference between the catalogue sale price and the strike through price”: Ascot Four Appeal at [10]. On appeal, the Full Court held at [26]:

It was open to the primary judge to characterise the dual pricing advertising as conveying a representation involving a saving by reference to the difference between the sale price and the strike through price on the basis (albeit implicit from the reasons) that the strike through price represented (at least to a significant section of the relevant class of consumers) more than a bare offer, namely, the price at which they would have bought the item before the sale period.

Section 29(1)(i) of the ACL – false or misleading representations

23    Relevantly, s 29(1)(i) of the ACL provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or in connection with the promotion by any means of the supply or use of goods, make a false or misleading representation with respect to the price of goods.

24    The prohibitions in ss 18 and 29 are “similar in nature”: Self Care at [84]. The observations in Valve Corporation about representations on a website also apply to claims under s 29 of the ACL. There is no material difference between ss 18 and 29 in relation to their application to the present case.

Declarations pursuant to s 21 of the Federal Court of Australia Act 1974 (Cth)

25    In deciding whether to make consent orders, the Court must be satisfied that it has the power to make the orders proposed and that the orders are appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; (1999) 161 ALR 79 at [17] (French J).

26    The Court should be satisfied of three matters before issuing a declaration by consent: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-438 (Gibbs J); applied to declarations sought by the ACCC in Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited [2018] FCA 703; (2018) 360 ALR 124 at [36] (Middleton J). They are:

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

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

(c)    there must be a proper contradictor.

27    A further question which arises is whether the declarations sought contain “appropriate and adequate particulars of how and why the conduct complained of is a contravention” of the ACL: Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) [2011] FCA 352; (2011) 195 FCR 1 at [68] (Gordon J); addressing the criticism in Rural Press Ltd v Australian Competition and Consumer Commission [2003] FCA 75; (2003) 203 ALR 217 at [89]-[90] (Gummow, Hayne and Heydon JJ).

28    Finally, in determining whether a declaration is appropriate, relevant considerations are whether the circumstances “call for the marking of the Court’s disapproval of the contravening conduct” and if they will serve as a warning to the public: Yellow Page at [69] (Gordon J); endorsed in Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695; (2011) ATPR 42-363 at [51] (Gilmour J).

Orders for redress pursuant to s 239 of the ACL

29    The Court may, on the application of the regulator, make such orders (other than an award of damages) as the Court considers appropriate against a person who engaged in conduct in contravention of, relevantly, s 18 or s 29(1)(i) of the ACL where that conduct caused, or is likely to cause, a class of persons to suffer loss or damage: ACL, s 239(1), (2). Among the kind of orders which may be made pursuant to s 239(1) is an order directing the respondent to refund money to an injured person: ACL, s 243(d).

30    In determining whether to make orders under s 239, the Court may have regard to the conduct of the person, and of the non-party consumers in relation to the contravening conduct, since the contravention occurred: ACL, s 240(1). A non-party consumer is bound by an order under s 239(1) against the person who engaged in the contravening conduct if the loss or damage suffered, or likely to be suffered, by that non-party consumer to which the order relates has been redressed and the non-party consumer has accepted that redress: ACL, s 241(1). Further, if the non-party consumer accepts the redress, they may make no claim, action or demand against the person in relation to the loss and damage to which the order relates: ACL, s 241(3).

31    In determining whether to make an order under s 239(1), it is not necessary for the Court to make a finding about the nature of the loss or damage that the conduct caused, or is likely to cause, to persons who are non-party consumers in relation to the contravening conduct: ACL, s 240(3). As explained by Colvin J in Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23; (2020) 376 ALR 701 at [185]:

It is enough that the Court is satisfied that there has been loss or damage caused to a class of persons that includes non-party consumers. By inference, redress orders may be made on the basis that the nature of the conduct means that it is appropriate for redress to be ordered that will flow to the class of persons affected. There is no requirement that the Court be satisfied that there is a precise correspondence between the redress that might be received by a particular member of the class and the actual loss suffered by that member.

32    The loss or damage may be of a non-pecuniary nature, such as a consumer’s lost opportunity to make a different purchasing choice with accurate information about the goods being considered for purchase: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 at [57] (Allsop CJ).

33    The form and purpose of an order pursuant to s 239 was described by Mortimer J in Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62 at [293]:

Section 239 is a remedial power. It is designed to allow the Court to undo damage to third parties caused by contravening conduct. The manner in which damage caused might need to be undone will inevitably need to be tailored to the circumstances of the contravening conduct, to the loss or damage suffered, and to the circumstances of the contravener and those involved in the contravention. There are no boundaries drawn in express terms in the way the power is conferred.

34    The order made pursuant to s 239 of the ACL in Clinica was successfully appealed in Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45; (2017) 347 ALR 622 (Middleton, Foster and Davies JJ). The Full Court did not, however, criticise Mortimer J’s discussion of orders pursuant to s 239 at [293] and it has been adopted subsequently in several decisions at first instance: Australian Competition and Consumer Commission v Campbell (No 3) [2021] FCA 528 at [135] (O'Bryan J); Geowash at [182]-[183] (Colvin J); Australian Competition and Consumer Commission v Ashley and Martin Pty Ltd (No 2) [2019] FCA 1739 at [25] (Banks-Smith J); Australian Competition and Consumer Commission v Lifestyle Photographers Pty Ltd [2016] FCA 1538 at [37] (Markovic J). Markovic J went on to say in Lifestyle that “there is no requirement in s 239 that the consumer be placed as far as possible in a position in which he or she would have been in but for the contravention”: at [41].

Non-punitive orders pursuant to s 246 of the ACL

35    The Court may, on the application of the regulator, make one or more orders described in s 246(2) in relation to a person who has engaged in conduct which is, relevantly, a contravention of ss 18 or 29: ACL, s 246(1). The parties propose orders of the nature described in s 246(2)(b) and 246(2)(c).

36    An order may be made pursuant to s 246(2)(b) for the purpose of ensuring that the person does not engage in the conduct, similar conduct, or related conduct, during the period of the order (which must not be longer than 3 years). Rangiah J in Australian Competition and Consumer Commission v ABG Pages Pty Ltd [2018] FCA 764, drawing on a passage of Gordon J in Australian Competition and Consumer Commission v Sontax Australia (1988) Pty Ltd [2011] FCA 1202; (2011) ATPR 42-379 in respect of the predecessor provision in the TPA, explained the purpose of, and circumstances in which, a compliance order pursuant to s 246(2)(b) will be appropriate (at [160]):

the purpose of such orders “is to ensure a company-wide awareness of responsibilities and obligations in relation to the contravening conduct or similar or related conduct”: Sontax at [36] (Gordon J). A compliance program order will be in the public interest where it would assist the company and its employees “in understanding the obligations” imposed by the CCA and “ensuring compliance with those provisions”: Sontax at [38] and there must also be a “nexus between the terms of the compliance program and the contravening conduct”: [36].

37    An order may be made pursuant to s 246(2)(c) requiring the person to disclose, in the way and to the persons specified in the order, such information as is so specified, being information that the person has possession of or access to. One purpose of such an order is to dispel false impressions created by the contravening conduct: Australian Competition and Consumer Commission v Pepe’s Ducks Ltd [2013] FCA 570; (2013) ATPR 42-441 at [51] (Bromberg J). Such an order was made in respect of communications to consumers in Australian Competition and Consumer Commission v Healthengine Pty Ltd [2020] FCA 1203, at paragraph 8 of those orders (Yates J).

Admitted contraventions

38    Dell is a corporation and, therefore, a person for the purpose of ss 18 and 29 of the ACL: SOAF [2(a)]. The contravening conduct the subject of this proceeding occurred in the business of the supply of monitors and computers and, therefore, in trade or commerce: SOAF [2(c)].

Purchase Price Representations

39    Dell admits that, in the Relevant Period, it made a representation, in trade or commerce, in connection with the supply or possible supply of goods and in connection with the promotion of the supply of goods, to consumers on the Dell Website, in respect of the Add-on Monitors offered for sale on each of the three purchase pathways, that the purchase price displayed for an Add-on Monitor was at least equal to the cheapest price the monitor was available to consumers on a Standalone Basis (the Bundling Representation): SOAF [45(a)]. The Bundling Representation was with respect to the price of goods within the meaning of s 29(1)(i) of the ACL.

40    The Bundling Representation was conveyed to consumers by:

(a)    the display of the purchase price for the Add-on Monitors to the consumer on the Dell Website after the consumer had selected a Computer for purchase, and the surrounding context of the structure and display of the webpage in each purchase pathway;

(b)    the express references to the Discounted Purchase Price and Strikethrough Price on the Dell Website in respect of the Add-on Monitors; and/or

(c)    the express statements described in paragraph 13 above and Section F of the SOAF, noting that, in the case of the Product Page and Candy Aisle, whether those were viewed by all consumers depended on how far a consumer scrolled down a page.

41    It was conveyed by the matters referred to in the preceding paragraph above (and subject to the qualification in sub-paragraph (c)) that by purchasing an Add-on Monitor in the same transaction as a Computer, the price of the Add-on Monitor would be at least equal to the cheapest price that the same model of monitor was offered for sale on a Standalone Basis on the Dell Website.

42    Further, Dell admits that, in the period from October 2020 to 16 December 2021, it made a representation, in trade or commerce, in connection with the supply or possible supply of goods and in connection with the promotion of the supply of goods, to consumers on the Dell Website, in respect of the Add-on Monitors offered for sale on the Special Events Platform, that the purchase price was the best price for those goods offered by Dell (Best Price Representation): SOAF [45(b)]. The Best Price Representation was with respect to the price of goods within the meaning of s 29(1)(i) of the ACL.

43    The Best Price Representation was conveyed by the express statement “[g]et the best price for popular accessories when purchased with this product” which appeared in a pop up screen after a consumer selected a Computer on the Special Events Platform and then clicked “Get this deal”: SOAF [44(b)].

44    The meaning conveyed by the Bundling Representation was that a consumer would not be able to purchase the same model of monitor offered for sale on a Standalone Basis on the Dell Website at a cheaper price than the purchase price at which the Add-on Monitor was being offered for sale to the consumer. The meaning conveyed by the Best Price Representation was that a consumer would not be able to purchase the same model of monitor offered for sale anywhere on the Dell Website for a cheaper price than the purchase price at which the Add-on Monitor was offered for sale. The meanings conveyed by the Bundling Representation and the Best Price Representation (the Purchase Price Representations) were false, misleading or deceptive in the circumstances: SOAF [46]. This is because on the dates set out for particular models in Annexure E to the SOAF, Dell offered, on the Dell Website, that monitor on a Standalone Basis for a price less than the purchase price at which the Add-on Monitor was offered for sale: SOAF [30].

45    In the circumstances described above, and at [45] to [46] of the SOAF, Dell admits that by making each of the Purchase Price Representations, Dell contravened ss 18 and 29(1)(i) of the ACL: SOAF [47].

Strikethrough Representations

46    Dell admits that, in the Relevant Period, it made representations, in trade or commerce, in connection with the supply or possible supply of goods and in connection with the promotion of the supply of goods, to consumers on the Dell Website, in respect of Add-on Monitors where a Strikethrough Price was displayed, that:

(a)    the amount of the discount that a consumer purchasing an Add-on Monitor would receive was equivalent to the difference between the Strikethrough Price and the Discounted Purchase Price (the Savings Representation): SOAF [48(a)];

(b)    the Strikethrough Price was the price at which the monitor was offered for sale to consumers before the discount was applied (the Prior Price Representation): SOAF [48(b)]; and

(c)    the Strikethrough Price was the standard price at which the monitor was offered for sale to consumers absent any discounts (the Standard Price Representation), being the “everyday price” of a product sold on the Dell Website absent any discounts: SOAF [48(c)],

(together, the Strikethrough Representations).

47    Each of the Strikethrough Representations was with respect to the price of goods within the meaning of s 29(1)(i) of the ACL.

48    Each of the Strikethrough Representations was conveyed by:

(a)    the express references to the Discounted Purchase Price and Strikethrough Price on the Dell Website in respect of the Add-on Monitors;

(b)    the surrounding context of the structure and display of the webpage in each purchase pathway; and/or

(c)    the additional express statements described above and in Section F of the SOAF, noting that, in the case of the Product Page and Candy Aisle, whether those were viewed by all consumers depended on how far a consumer scrolled down a page.

49    In respect of the Savings Representation, and drawing on the authority of Ascot Four and the Ascot Four Appeal, it was conveyed by the presentation of the Strikethrough Price and the Discounted Purchase Price together that a consumer would save the difference between those prices by purchasing the Add-on Monitor. That is further supported by the express statements made on the Product Page and the Special Events Platform where a consumer may have viewed the statements “Includes x% off” and/or “Total savings” when considering whether to purchase an Add-on Monitor.

50    In relation to the Prior Price Representation, it was conveyed by the presentation of the Strikethrough Price and the Discounted Purchase Price together that the Strikethrough Price was the price at which the Add-on Monitor was offered for sale to consumers on the Dell Website before the discount was applied. That meaning arises from the fact that a higher price for the Add-on Monitor was struck through which would indicate to a reasonable consumer considering the purchase of an Add-on Monitor that it was the price at which the monitor was offered for sale to consumers before the discount was applied.

51    In respect of the Standard Price Representation, it was conveyed by the presentation of the Strikethrough Price and the Discounted Purchase Price together that the Strikethrough Price was the “standard” or “everyday” price at which the model of monitor was offered for sale on the Dell Website absent any discounts. A reasonable consumer considering the purchase of an Add-on Monitor would expect that, absent the Discounted Purchase Price, they would have paid the Strikethrough Price for the same model of Add-on Monitor when not otherwise subject to a discount or promotion.

52    Reasonable consumers were likely to have been led into error by each of the Strikethrough Representations because the meaning conveyed by each of those representations was false, misleading or deceptive in the circumstances described above and at [23], [27] and [28] of the SOAF. This is because during the Relevant Period the Strikethrough Price for an Add-on Monitor was recorded as the List Price (or in the limited cases referred to in Annexure C to the SOAF, another price lower than the List Price) for that monitor, but this price was not a price that the consumer would have paid for the monitor if they had purchased the item, whether as an Add-on Monitor or on a Standalone Basis (with limited exceptions referred to in Annexure D to the SOAF): SOAF [28(a)].

53    It follows that:

(a)    in respect of the Savings Representation, a consumer who purchased an Add-on Monitor was not, in fact, saving the difference between the Strikethrough Price and the Discounted Purchase Price;

(b)    in respect of the Prior Price Representation, the Strikethrough Price was not the price at which the Add-on Monitor was offered for sale before the introduction of the Discounted Purchase Price; and

(c)    in respect of the Standard Price Representation, the Strikethrough Price was not the standard price at which the Add-on Monitor was offered for sale on the Dell Website absent any discounts.

54    In the circumstances described above and at [48] to [49] in the SOAF, Dell admits that by making each of the Strikethrough Representations, Dell contravened ss 18 and 29(1)(i) of the ACL: SOAF [50].

Declarations sought

55    The requirements for declaratory relief, as described above, are satisfied in this proceeding for the following reasons:

(a)    there is a real question about whether Dell contravened the ACL by making each of the Purchase Price Representations and Strikethrough Representations (together, the Representations);

(b)    the ACCC has a real interest in raising the question as the statutory body responsible for regulating matters relating to consumer law; and

(c)    Dell is the proper contradictor.

56    The declarations have been drafted with detailed particulars to allow the proper identification of the conduct complained of and how it breached the ACL. Further, I agree that the declarations are necessary to record the Court’s disapproval of the contravening conduct and serve as a warning to consumers about bundling and strikethrough pricing.

Consumer redress orders

57    The requirement in s 239(1)(a)(i) is satisfied because Dell has admitted that it engaged in conduct which contravened ss 18 and 29(1)(i) of the ACL.

58    As to the requirement in s 239(1)(b), the parties agree that Dell’s contravening conduct, being the making of each of the Representations in circumstances where they were false or misleading, was likely to cause consumers to suffer financial loss and damage in an amount likely lower than, but no higher than, the price paid for an Add-on Monitor: SOAF [60].

59    It is reasonable to infer that, as a general matter, price and discounts are an important consideration for consumers when purchasing electronic goods and can be a key differentiating factor between product offers. Provision of accurate information concerning pricing and discounts is thus important for consumers to make an informed choice as to whether to make a purchase, and if so, which product to purchase.

60    In addition to the likely loss and damage described above, it is possible that the consumers who purchased Add-on Monitors which were subject to the Representations, in circumstances where those representations were false or misleading and affected the consumer’s purchasing decision, suffered other forms of loss or damage. Such loss could be the loss of an opportunity to make a different purchasing choice (including a decision not to purchase the Add-on Monitor) properly informed by accurate information in relation to an important factor in that decision making process, being price, and the corresponding loss of opportunity (if available) to gain a greater discount, or a cheaper price for a monitor, whether from the Dell Website or a third party.

61    It is not possible to determine precisely the total number of consumers who viewed or were misled by the Representations in circumstances where they were false or misleading, because Dell is not able to provide accurate data about website visits, including data about which purchase pathway was followed for each purchase of an Add-on Monitor, and it is not known if every consumer scrolled sufficiently far down the Product Page or Candy Aisle to see the Representations: SOAF [32], [52], [59].

62    However, what is known is that every consumer who purchased an Add-on Monitor had at least one of the Representations made to them. That is because, to have been able to make that purchase, the consumer must have had that Add-on Monitor displayed to them in at least one of the purchase pathways as described in Section F of the SOAF. Whilst the precise pathway and details of how much of that webpage were viewed by each particular consumer, and whether they relied on the Representations are not known, at the very least:

(a)    all consumers who purchased Add-on Monitors had the Bundling Representation made to them; and

(b)    the consumers who purchased Add-on Monitors which were shown with strikethrough prices (being the vast majority of them) had the Strikethrough Representations made to them.

63    As to the circumstances in which those Representations were false or misleading, it is agreed that during the Relevant Period:

(a)    a total of 1,351 orders were placed by consumers who purchased Add-on Monitors which were subject to one or more of the Purchase Price Representations in circumstances where those representations were false or misleading. Of the 1,351 orders, approximately 27 involved a payment for an Add-on Monitor that exceeded the price that would have been paid for the equivalent monitor on a Standalone Basis by an amount of 5 cents or less (Nominal Consumers). Therefore, excluding the Nominal Consumers, on approximately 1,324 orders, the consumer paid more for an Add-on Monitor than what they would have paid for the equivalent monitor on a Standalone Basis: SOAF [53];

(b)    a total of 4,230 orders were placed by consumers who purchased an Add-on Monitor subject to the Strikethrough Representations in circumstances where those representations were false or misleading: SOAF [56]; and

(c)    a total of 1,323 orders were placed by consumers who purchased an Add-on Monitor which were subject to one or more of both the Purchase Price Representations and Strikethrough Representations in circumstances where those representations were false or misleading: SOAF [59(c)].

64    The consumer redress regime in Annexure A (Consumer Redress Regime) to the orders takes into account the consumer remediation which has been offered by Dell to some consumers who have suffered loss and damage to date. The consumers who purchased an Add-on Monitor which was subject to only one or more of the Purchase Price Representations in circumstances where those were false or misleading have been offered remediation in the amount of the difference between what they paid for an Add-on Monitor and what they would have paid for the equivalent monitor on a Standalone Basis: SOAF [74]-[76]. Some consumers who purchased an Add-on Monitor which was subject to one or more of the Strikethrough Representations in circumstances where those were false or misleading, described as the Strikethrough Pricing Consumers in [65(b)] of the SOAF, have already been offered remediation: SOAF [72]-[73]. The Consumer Redress Regime proposes further remediation for consumers who purchased an Add-on Monitor which was subject to one or more of the Strikethrough Representations in circumstances where those were false or misleading in the form of a refund of the total amount paid for the Add-on Monitor plus interest, less any amounts previously refunded: Annexure A [3]-[5]. Further, the Consumer Redress Regime includes a requirement that Dell provide consumers who have been offered remediation but failed to respond a further 90 days from the date of the corrective notice to respond to Dell to indicate whether they wish to accept the remediation proposal: Annexure A [6].

65    In circumstances where only a subset of consumers for whom the conduct caused, or was likely to cause, loss or damage have been remediated to date, and there are other consumers who purchased an Add-on Monitor for whom the conduct caused, or was likely to cause, loss or damage and who have not been remediated to date, the proposed consumer redress orders are appropriate, having regard to the authorities set out above.

66    In the event that a consumer does not wish to receive redress or where payment cannot be processed to them, Dell has stated that it will donate those amounts to the charity Vinnies (St Vincent de Paul Society), and it therefore will not have retained any revenue generated by transactions where a consumer had at least one of the Representations made to them.

Compliance orders

67    The parties jointly seek orders pursuant to s 246(2)(b) requiring Dell to:

(a)    appoint a suitably qualified compliance professional to undertake a series of steps, including preparing a report with recommendations;

(b)    use reasonable endeavours to implement any recommendations made by the expert; and

(c)    maintain its compliance program, as revised, for a period of 3 years: order 3.

68    The orders are appropriate in circumstances where:

(a)    the contravening conduct occurred over a period of more than two years from August 2019;

(b)    Dell admits that at least four senior managers as defined in s 9 of the Corporations Act 2001 (Cth), one of whom was also a director of Dell, were aware (to varying degrees) of the issues affecting the prices of Add-on Monitors from at least May 2020: SOAF [82];

(c)    Dell also admits there were at least 23 other individuals who were employed by Dell or related entities to Dell, who were aware (to varying degrees) of the pricing issues at various points in time prior to 14 January 2021, with some being aware from at least May 2020. Six of these employees were employed by Dell, and 17 were employed by related entities of Dell who had responsibilities relating to Dell’s business including the products it supplied in Australia: SOAF [82], [83];

(d)    Dell received consumer complaints relating to the conduct the subject of this proceeding with the earliest of those complaints being made in April 2020: SOAF [64];

(e)    despite its awareness of the pricing issues and the consumer complaints, Dell did not take steps to disable the functionality which allowed the bundling of monitors across the Dell website, and thus did not cease making the Representations, until after the ACCC first contacted Dell about the conduct the subject of this proceeding in December 2021: SOAF [84]; and

(f)    the above matters indicate that Dell’s compliance processes were not sufficient to prevent the occurrence of the conduct in this case.

Corrective notice orders

69    The parties jointly seek orders pursuant to s 246(2)(c) requiring Dell to issue a corrective notice to every consumer who purchased an Add-on Monitor through the Dell Website in the Relevant Period: order 4. I accept that this is appropriate in all the circumstances, including to dispel any mistaken belief consumers had about the price of the Add-on Monitor they purchased.

Associate:

Dated:    5 June 2023