Federal Court of Australia

Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    Within 28 days of the date of these orders, the parties are to:

(a)    confer about and, if possible, agree upon suitable directions that might be made as to the filing of evidence, submissions and other material relevant to the question of what relief the court should grant in light of the conclusions that are set out in the reasons for judgment relating to these orders; and

(b)    provide to the court a minute of orders so agreed or competing minutes of orders, as the case may be.

2.    The matter be adjourned for further hearing on a date to be fixed.

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

REASONS FOR JUDGMENT

SNADEN J:

Summary

1    Throughout the bulk of Australia, the supply of residential broadband internet access is effected via what is known as the National Broadband Network, or “NBN”. The NBN, to put it perhaps in terms that are overly simple and incomplete but are nonetheless apt for present purposes, comprises the physical, fixed-line architecture over which the transmission of internet data occurs and to which individual residences can, for that purpose, be connected. It is administered by NBN Co Limited (“NBN Co”), a corporation owned and controlled by the Commonwealth.

2    In administering the NBN, NBN Co supplies internet service providers with wholesale access to its network. Those providers, in turn, offer retail internet access plans to consumers. Those retail offerings involve the alignment of individual consumers (or, more specifically, the plans for which they contract) with a pre-determined “speed tier” that is set by NBN Co. Again at the risk of over-simplification, speed tiers stipulate the quality of individual NBN connections, measured by the speed with which they are capable of accommodating the receipt and transmission of information.

3    The respondent is a large and well-known telecommunications business. It maintains within its wider operations a business unit known as “Belong”, which markets itself as a provider of low-cost NBN internet access plans. Belong has offered and continues to offer a variety of such plans, each of which is (and was) aligned to an NBN speed tier.

4    One of those plans, known by various names over the years, is now known as Belong’s “Premium” plan. Between May and October 2017, it was marketed as Belong’s “100/40 Speed Boost” or “Speed Boost – 100/40Mbps” or “Premium (100/40) Evening Speed Boost” plan. So known, the plan envisaged the provision of NBN access that was, in each case, configured so as to conform to the “100/40Mbps” speed tier that NBN Co maintained. The references to “100/40” were references to the theoretical maximum speeds—measured in megabits per second (or “Mbps”)—at which data could be downloaded and uploaded (respectively) via a plan configured to conform with that tier.

5    Although the name of the “Premium” plan changed in November 2017 (including so as to remove references in its title to its maximum upload speed), Belong continued to promote it as accommodating a theoretical maximum upload speed of 40Mbps.

6    That changed on 19 September 2018. From then until November 2020 (and likely beyond), Belong neither marketed the plan by reference to—nor, by any published material, associated it with—any identified theoretical maximum upload speed. From that point (at least relevantly for present purposes), the plan was marketed as Belong’s “Premium” plan (there were various iterations in title but all employed that “Premium” tag).

7    In May 2020, NBN Co introduced a new “100/20” speed tier that offered theoretical maximum download and upload speeds of 100Mbps and 20Mbps respectively. In October and November 2020, Belong unilaterally reconfigured the bulk of its “Premium” customers’ internet plans so as to align with the new “100/20” speed tier (rather than the 100/40 speed tier to which they had hitherto been aligned). It did so without notice to those affected customers.

8    In 2021, Belong decided to inform some of those affected “Premium” plan customers—specifically, some 2,553 customers who had signed up to their plans prior to 1 July 2018—of the unilateral change described above (hereafter, the “Speed Tier Switch”). A similar disclosure was made in October 2023 to a further 232 affected customers who had signed up to the “Premium” plan between 1 July 2018 and 19 September 2018. Belong has not made any equivalent disclosure to its other affected “Premium” plan customers—that is to say, the 6,112 customers who signed up to that plan between 20 September 2018 and the completion of the Speed Tier Switch.

9    By a further amended originating application dated 11 April 2024, the applicant (the “ACCC”) moves the court for relief in respect of Belong’s decision to effect the Speed Tier Switch without notice to affected customers. It charges Belong (which is to say, the respondent via its Belong business unit) with having contravened ss 18, 29(1)(b) and 29(1)(g) of the Australian Consumer Law (the “ACL”). The mechanics of those alleged contraventions are explored in more detail below.

10    As is customary in matters such as this, an initial trial was scheduled to determine whether the ACCC could establish the contraventions that it alleges. For the reasons that follow, I am satisfied that it can and that the matter should, thus, proceed to further hearing to determine what, if any, relief should issue.

The facts

11    Little, if any, of the evidence that was placed before the court in the initial “liability” phase of the trial is seriously in contest. I should be understood to have made factual findings consistent with what is recorded in the observations that follow.

Uploads and downloads

12    At the risk of stating the obvious, the exchange of information via the internet involves bidirectional data transfer: that is to say the transfer of data from remote sources to an end-user’s device and the transfer of data from an end-user’s device to remote sources. From the perspective of the end-user, those transfers are known respectively as “downloads” and “uploads”.

13    The speed at which data may be transferred across the NBN is a function of multiple variables. One—perhaps the key—such variable is the speed tier to which a user’s internet access plan is configured. Speed tiers stipulate the theoretical maximum speeds at which data can be transferred (both by way of download and upload). Thus, an internet service plan that is aligned with NBN Co’s “100/40” speed tier will permit the downloading of data at no more than 100Mbps and the uploading of data at no more than 40Mbps. A plan aligned with the “100/20” speed tier will permit data downloads at no more than 100Mbps and data uploads at no more than 20Mbps.

14    The reference to “theoretical” maximum speeds is important. The actual maximum speeds at which a consumer might be able to upload or download data at any given time varies according to the physical characteristics of their connection to the NBN (for example, how far away their residence is from the nearest fibre optic cable connection). It can also be dependent upon the volume of internet “traffic” that is conveyed via the NBN at any given time (and the location to and from which it travels). During evening periods, for example, when greater numbers of people typically engage in data-intensive activities at their homes, network speeds may slow due to the greater volume of internet “traffic” (much like a freeway does during peak hour).

Belong’s “Premium” plans

15    As at 1 May 2017, NBN Co offered wholesale access to the NBN according to various speed tiers. The “100/40” option was the only speed tier that offered theoretical maximum download speeds of 100Mbps, which was the fastest download speed option available.

16    Between May and October 2017, Belong marketed (and signed customers up to) fixed-line NBN internet access plans that it variously called the “100/40 Speed Boost” plan, the “Speed Boost – 100/40Mbps” plan or the “Premium (100/40) Evening Speed Boost” plan. Customers who signed up to those plans received internet access services that were aligned to NBN Co’s “100/40” speed tier.

17    Throughout that period, Belong published “Critical Information Summar[ies]” that contained “essential information” concerning the retail internet access plans that it marketed. Amongst other things, those summaries made reference to the maximum download and upload speeds associated with those plans. As concerned its fastest access plans, those references were consistent with the “100/40” description to which their titles adverted.

18    Additionally, Belong maintained on its website an “nbn speeds explained” document and a small array of other documents, which made similar representations about the maximum speed capabilities (including upload speed capabilities) of its various NBN access plans.

19    In October 2017—following release by the ACCC of a “Broadband Speed Claims Industry Guidance” publication—Belong made some changes to its “Critical Information Summary” document. Under the heading, “How fast is my Broadband service?”, that document recorded as follows:

Basic nbn™ services have a maximum achievable speed of 12 Mbps for downloading into the home and 1 Mbps for uploading from the home. If you need to speed up your service, get a Standard or Premium Evening Speed Boost.

The Standard (25/5) Evening Speed Boost gives you typical evening speeds of 15 Mbps for downloading into the home.

The Premium (100/40) Evening Speed Boost gives you typical evening speeds of 60 Mbps for downloading into the home.

Actual speeds may be faster or slower than your typical evening speed and will vary due to a number of factors including hardware and software configuration and internet traffic. These speeds exceed the capabilities of some content servers and computers. Even if you move to a higher speed by purchasing a Speed Boost, your nbn service can never go faster than the maximum line speed available from nbn co.

20    By the end of October 2017, Belong had rebranded its “Premium” access plan so as not to refer by title to any download or upload speeds. Instead, the plan became known as the “Speed Boost Premium” or “Premium Evening Speed Boost” plan.

21    In March 2018, Belong updated its “Critical Information Summary” document again. References to the upload speed capabilities of its NBN access plan were removed. In May 2018, an equivalent amendment was made to the “nbn speeds explained” document.

22    Between 29 May and 19 September 2018, there remained a small number of documents published on Belong’s website that continued to refer to the theoretical maximum upload speeds associated with its NBN internet access plans (including its “Premium” plan, howsoever described). By 19 September 2018, there were none.

23    In or around December 2018, Belong again rebranded its “Speed Boost Premium” and “Premium Evening Speed Boost” plans, referring instead to an “Unlimited NBN Premium” or, simply, “Premium” plan. Neither referred by name to any particular upload speed; and nor were there any equivalent representations in any documents that Belong published in connection with those plans. All the same, those who signed up for (or who continued to receive) NBN access via those “Premium” plans were supplied an access service that was aligned to NBN Co’s “100/40” speed tier.

24    Signing up to a Belong plan involved, amongst other things, customers’ consenting to written terms and conditions. Between May 2017 and November 2020, those terms and conditions assumed varying forms; but constant amongst them was a term concerning Belong’s “…right to migrate your service”. Again, that term (the “Migration Term”) varied from time to time but its material and relevant effect did not: each iteration of it conferred a right to “migrate you to an alternative service or pricing plan” provided that Belong gave “reasonable notice” of its doing so.

The 100/20 speed tier

25    In May 2020, NBN Co introduced a second NBN speed tier that offered a 100Mbps maximum theoretical download speed. Unlike the existing “100/40” speed tier, the new tier capped uploads at 20Mbps.

26    Importantly for Belong, the wholesale price of access to the NBN’s “100/20” speed tier was lower than the equivalent price of access to the “100/40” speed tier; specifically, $7 cheaper per physical connection per month.

Belong’s usage monitoring

27    NBN Co’s introduction of a “100/20Mbps” speed tier was considered something of an opportunity (or potential opportunity) within Belong. In September 2019 (after NBN Co announced that it would introduce the “100/20” speed tier but before it came online), Belong undertook some upload data analysis of its “Premium” customers (or a portion of them), which suggested that very few had occasion to realise sustained upload speeds in excess of 20Mbps.

28    In May 2020, Belong set out more fulsomely to analyse the data uploads of its “Premium” customers (which is to say, their volumes and speeds rather than their content). For reasons that will become clearer, it is unnecessary to summarise in detail the evidence that was given about Belong’s monitoring between May and October 2020. It suffices to observe that Belong settled upon a preferred methodology pursuant to which that analysis should be undertaken and that, in September 2020, it embarked upon a six-week monitoring process that ultimately guided its approach to the introduction of the “100/20” speed tier.

29    That methodology involved assessing the volume of data that each of Belong’s “Premium” plan customers uploaded over the course of the 42-day monitoring period (the “Monitoring Period”). Those assessments were made with the assistance of a software package known as “Allot DPI”, which was able to calculate upload volumes over five-minute periods (apparently, it is capable of analysis over smaller periods but Belong’s subscription to the service did not accommodate assessment periods smaller than five minutes). Using Allot DPI, Belong was able to identify, for each of its “Premium” plan customers, the total volume of data that was uploaded over each five-minute period throughout the Monitoring Period.

30    That usage identified, Belong then calculated the average upload speed for each “Premium” plan customer for each five-minute period by dividing the total volume uploaded (measured in megabits) by 300; the result being the average upload speed for each “Premium” plan customer in each five-minute period expressed in megabits per second.

31    Belong then grouped its “Premium” plan customers into two categories: those who “never or rarely” achieved upload speeds in excess of 20Mbps; and those who did so “more than rarely”. Identifying a point of division between the two necessarily involved a degree of arbitration. To fall into the “more than rarely” category, “Premium” plan customers had to achieve average upload speeds in excess of 20Mbps in at least six five-minute periods on at least two of the 42 days in the Monitoring Period. Customers who did not satisfy those criteria were considered “never or rarely” to achieve upload speeds in excess of 20Mbps.

32    The end result of that grouping was that 8,897 (or approximately 98.5 per cent) of Belong’s 9,038 “Premium” plan customers were in the “never or rarely” category described above.

The switch and its aftermath

33    In October and November 2020, Belong effected the Speed Tier Switch by realigning the “Premium” plans of nearly all of its 8,897 “never or rarely” customers to NBN Co’s “100/20” speed tier. A small number were spared that course for miscellaneous reasons into which it is unnecessary to descend. The plans belonging to the 141 “Premium” plan customers who Belong had identified as “more than rarely” achieving or exceeding upload speeds (or average upload speeds) of 20Mbps were not reconfigured.

34    As has already been recorded, none of the customers whose “Premium” plans were re-mapped to NBN Co’s “100/20” speed tier were notified of the Speed Tier Switch prior to its being effected. The catalyst for the limited notification that was given some months later appears to have been a meeting of Belong’s “Leadership Team” that took place on Tuesday, 16 February 2021. It is apparent that the Speed Tier Switch was the subject of discussion at that meeting, which the then new head of Belong, Ms Jana Kotatko, attended. Following the meeting, Ms Kotatko sent an email to members of that team (or some of them) in the following terms (errors original):

…I just wanted to share where we got to today:

1.    We will send a detrimental comms to all our 100/40 customers (even retrospectively those who have been moved to the 100/20 product some weeks/months ago)

2.    We should think about what our “canned response” is for social and push that into whirlpool (and any other forum) if we deem that the right thing to do

3.    Troy – Kelly’s team are on standby to support you here. Likewise Jeremy B can approve any comms and turn that around quickly

4.    Troy – can you write up a brief summary of the “what” here e.g. where are we in the program, how many customers, what comms was planned, what comms is now going out, when etc etc

I think it is really important that we take a moment to remind ourselves that we must always be transparent and straight up with customers about this sort of stuff. These customers bought a product, and we changed that product to their detriment. Whether that customers felt the practical impact of that change is irrelevant.

…

35    On 3 March 2021, Mr Troy Perera, Head of Fixed Broadband Products, prepared a document headed, “Frontline Comms”. Its purpose was, as Mr Perera put it, “…to inform frontline teams of our impending detrimental notice…” regarding the Speed Tier Switch (at least as it affected some “Premium” plan customers). Under the heading, “What did Belong do?”, that document recorded as follows (errors original):

•    Belong moved just over 8,800 of our customers from the 100/40 speed tier to the 100/20 speed tier in mid-October 2020 (call this a migration)

•    Some of these customers joined Belong on the 100/40 speed tier prior to the 22 March 2018

•    These customers did not, or rarely exceeded 20Mbps of upload over a 40-day period (evaluated just prior to the migration)

…

36    The document continued (errors original):

•    Belong reviewed (audited) our content, and discovered that we did make representations of the 100/40 values and in some cases up the 30th June 2018

…

•    As such we’ve judged that:

o    About 2,553 of the 8,800 customers joined Belong on the 100/40 speed tier where representations (of 100/240) were made

o    They have had detrimental change in their upload speed from October 2020 to March 2021 – a total of 6 months

…

37    In March and April 2021, Belong sent communications directly to the 2,553 customers to which the above document referred—in other words, to the “Premium” plan customers to whom Belong reckoned that representations had been made about the theoretical maximum upload speeds associated with those plans (hereafter, the “Original Cohort A Customers”).

38    By correspondence dated 20 April 2021, Belong brought the Speed Tier Switch (at least insofar as it affected Original Cohort A Customers) to the ACCC’s attention. Amongst other things, that correspondence noted as follows:

From around May 2017 to September 2018, Belong offered customers a Speed Boost as an add-on to their NBN base plan. This included a 100/40Mbps Speed Boost which was advertised on the Belong website and referenced in billing materials. The plans were month to month.

In October 2020, in an effort to optimise network costs, Belong reviewed Speed Boost Customers’ data for 5 weeks to identify customers who were using less than 20Mbps upload speed. For customers who met these criteria, Belong unilaterally moved them to the lower upload speed. Belong considered this was not sufficiently detrimental to customers to require notifying them.

The decision to move customers without notifying them on the basis that the change to their upload speed was not detrimental having regard to their usage pattern was taken without legal advice being sought, which is contrary to standard process. Upon becoming aware that legal advice had not been taken, Belong revisited the decision not to notify customers of the upload speed change and determined that notice should have been given.

39    In addition to highlighting the Speed Tier Switch, the communications that were sent to the Original Cohort A Customers recorded that each would receive a one-off “goodwill credit” of $90 (representing $15 per month for the six months since the Speed Tier Switch had taken effect).

40    After the commencement of this action, it became apparent that there were additional “Premium” plan customers (232 of them, to be precise) whose NBN access plans had commenced between 1 July 2018 and 19 September 2018, when Belong—despite changing the name of its plan and removing from its promotional literature most references to the upload speeds that it was capable of accommodating—nonetheless maintained on its website documents that contained such references. In relation to those customers (the “Additional Cohort A Customers”), equivalent notification was provided on 11 October 2023.

41    The evidence establishes that some customers affected by the Speed Tier Switch had occasion to complain about it; and, specifically, about the reduction in the theoretical maximum upload speed for which their plans provided. Again, it is unnecessary to particularise those complaints; it suffices merely to acknowledge that there were some.

The Proceeding

42    After Belong self-reported its having effected the Speed Tier Switch without notice, the ACCC commenced an investigation of its own. That investigation culminated in the commencement of this proceeding in December 2022. By its further amended originating application dated 11 April 2024, the ACCC moves for various species of relief in respect of what it claims was conduct engaged in by Belong in contravention of ss 18, 29(1)(b) and 29(1)(g) of the ACL.

43    Insofar as concerns the Original Cohort A Customers and the Additional Cohort A Customers (together, the “Cohort A Customers”), the further amended originating application alleges that Belong contravened those statutory injunctions between the points at which it effected the Speed Tier Switch and the points at which it told those customers that it had done so. Additionally, it alleges that a further 6,112 of Belong’s “Premium” plan customers (the “Cohort B Customers”) were victims of equivalent contraventions; and that those contraventions have been ongoing since “October/November 2020”.

44    The matter proceeded upon concise statements and it is convenient at this juncture to summarise their key components. By its further amended concise statement dated 11 April 2024, the ACCC alleges that 8,897 Belong customers (specifically, the Cohort A Customers and the Cohort B Customers) “…were unilaterally migrated…from a service configured to the NBN100/40 speed tier to a service that…was configured to the NBN100/20 speed tier”.

45    The further amended concise statement summarises the conduct that is said to ground the contraventions that are alleged against Belong. Insofar as concerns the Cohort A Customers, it alleges (emphasis original):

9    By publishing or causing to be published, or otherwise providing to customers, the materials referred to in paragraph 3 and further or alternatively paragraph 3A above and by one or more of: (a) publishing or causing to be published or otherwise providing to customers the terms and conditions referred to in paragraph 4 above, (b) continuing to invoice Cohort A customers, and (c) not otherwise informing the Cohort A customers of any change to the supply of services to them, Telstra represented to the Cohort A customers from October/November 2020 to March/April 2021 or to 11 October 2023 (as the case may be), that they were receiving a Belong broadband service that included a maximum 40Mbps upload speed, when, in fact, in about October/November 2020 Telstra had unilaterally migrated those customers from a service configured to the NBN100/40 speed tier to an alternative service that was configured to the NBN100/20 speed tier such that those customers were only receiving a service that included a lower maximum upload speed of 20Mbps.

46    The reference to “the materials referred to in paragraph 3 and…3A” is a reference to various promotional material that Belong published.

47    Insofar as concerns the remaining 6,112 Cohort B Customers, the further amended concise statement alleges:

10    By:

(A) one or both of (i) publishing or causing to be published or otherwise providing to customers the terms and conditions referred to in paragraph 4 above, and (ii) continuing to invoice customers; further or alternatively,

(B) by one or both of the matters set out in (A)(i) and (ii) and one or both of (i) publishing or causing to be published, or otherwise providing to customers the materials referred to in paragraph 3A above and (ii) by its silence in not informing the Cohort B customers of any change to the supply of services to them; further or alternatively,

(C) publishing or causing to be published, or otherwise providing to customers the materials referred to in paragraph 3A above and not informing customers of any change to the supply of services to them;

Telstra

(a)    represented and continues to represent to Cohort B customers from October/November 2020 to date that the Belong broadband service supplied to them had not been altered in any way when, in fact, it had been altered, such that those customers were receiving a service with a lower maximum upload speed; further or alternatively

(b)    represented and continues to represent to Cohort B customers from October/November 2020 to date that the service provided to them by Belong was of the same standard, quality, value or grade after the migration as it was before the migration when, in fact, it was of an inferior standard, quality, value or grade after the migration in that the maximum upload speed was lower; further or alternatively

(c)    represented and continues to represent to Cohort B customers from October/November 2020 to date that the service provided to them by Belong had the same performance characteristics, uses or benefits after the migration as it had before the migration when, in fact, it had inferior performance characteristics, uses or benefits after the migration in that the maximum upload speed was lower.

48    By its concise response of 9 May 2024, Belong addresses those allegations in the same bifurcated manner. Insofar as concerns Cohort A Customers, Belong’s concise response contains the following admission, namely (errors and emphases original):

16.    In relation to the Total Cohort A Customers, Telstra admits that it contravened ss 18 and 29(1)(b) and 29(1)(g) of the Australian Consumer Law (ACL) by making a false or misleading representation that services were of a particular standard or grade and had performance characteristics:

a.    by, in the period from about 1 May 2017 to 19 September 2018 (Publication Period):

(i)    Belong publishing or causing to be published advertising and other material that referred to a maximum upload NBN speed of 40 Mbps (Publications);

(ii)    such that the Publications may have been viewed by the Total Cohort A Customers described in this Concise Response, including customers who signed up during the Publication Period to a plan called ‘100/40 Speed Boost’, ‘Speed Boost - 100/40 Mbps’ or ‘Premium (100/40) Evening Speed Boost’;

c.    such that Belong thereby represented to the Total Cohort A Customers in trade or commence and in connection with the supply of services in Australia that they were receiving a Belong NBN broadband service with a maximum upload speed of 40 Mbps,

(Express Representations);

d.    when in fact, notwithstanding the Express Representations, Belong, in around October/November 2020, caused the Total Cohort A Customers to receive a Belong NBN broadband service with a maximum upload speed of 20 Mbps; and

e.    did not inform them of the change (i) in the case of the Original Cohort A Customers, until March/April 2021 when such notice was given, and (ii) in the case of the Additional Cohort A Customers, until October 2023 when those customers were sent notification.

49    No equivalent admission is made in respect of the 6,112 Cohort B Customers. Insofar as concerns each of them, Belong denies that it made any of the three representations that [10] of the further amended concise statement (above, [47]) attributes to it.

50    As has been identified, the proceeding was the subject of a trial concerning Belong’s liability for the contraventions alleged against it (with the question of relief reserved for later consideration only if required). That transpired over three days, commencing Wednesday, 24 July 2024. Evidence was received in various forms, specifically:

(1)    in the form of a statement of agreed facts dated 22 November 2023;

(2)    in the form of the following affidavits (some objections to which were resolved in the usual way), namely:

(a)    an affidavit sworn by Mr Arshad Jabbar, Senior Analyst, on 7 February 2024;

(b)    an affidavit affirmed by Mr Adam Lee Edwards, Head of Networks, on 7 February 2024; and

(c)    an affidavit affirmed by Mr Scott Andrew Jones, Principal Product Owner – Channel Tools & Technology, on 7 February 2024; and

(3)    in the tendering of various documents.

The statutory framework

51    The ACL exists as sch 2 to the Competition and Consumer Act 2010 (Cth). Chapter 2 of the ACL is entitled “General protections”. It incorporates s 18, which is (and, at relevant times, was) in the following terms, namely:

18 Misleading or deceptive conduct

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

…

52    Chapter 3 of the ACL is entitled “Specific protections”. Amongst other things, it contains provisions designed to address what pt 3-1 of the ACL describes as “Unfair practices”. One such provision is s 29, which provides (and, at relevant times, provided) as follows, namely:

29 False or misleading representations about goods or services

(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; or

…

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

…

53    Presently, there is no controversy that the conduct properly attributed to Belong was conduct in which it engaged in trade or commerce, and in connection with the supply or possible supply of goods or services.

54    There is also no controversy concerning the standing of the ACCC to apply for—or the court’s power to award—the various remedies for which the further amended originating application moves in connection with the contraventions of ss 18 and 29 that are alleged.

Principles to be applied

55    Whether conduct is misleading or deceptive, or is likely to mislead or deceive, is a question of fact: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304, 341-2 [102] (Gummow, Hayne, Heydon and Kiefel JJ). The answer turns, in each case, upon whether impugned conduct has a sufficient tendency to lead those who are exposed to it into error; that is, to form an assumption or conclusion about a particular fact or subject matter that is wrong: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 197 (Gibbs CJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640, 651-2 [39] (French CJ, Crennan, Bell and Keane JJ).

56    Conduct will be “likely to mislead or deceive” if there is a real and not remote possibility of that outcome. It is unnecessary that that possibility be more likely to be realised than not: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450, 459 [22] (Wigney, O’Bryan and Jackson JJ).

57    Conduct might be considered misleading or deceptive, or likely to mislead or deceive, notwithstanding an absence of evidence that anybody was, in fact, led by it into error: Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, 443 [6] (French CJ, Crennan and Kiefel JJ); Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96, [4], [54], [64] (Allsop CJ, Jagot and Lee JJ).

58    Conduct that is “false and misleading” for the purposes of s 29 of the ACL will generally also be “misleading or deceptive” for the purposes of s 18: Australian Competition and Consumer Commission v Mazda Australia Pty Ltd (2021) 158 ACSR 31, 51 [88] (O’Callaghan J).

59    A representation may, for the purposes of s 29 of the ACL, be constituted by an express conveyance, or may be implicit in other conduct: Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408, [559] (Gleeson J). Within the realm of such other conduct is included both acts and omissions. Thus, a person might implicitly represent something as much by what he or she says as by what he or she does not say: Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477, 489-90 (Bowen CJ).

60    In order that it might refer to a “particular” standard, quality, value or grade, a representation need not be precise; but it must reference a standard, quality, value or grade that is indicated or certain: Gardam v George Wills & Co Ltd (1988) 82 ALR 415, 423 (French J).

61    A person’s silence (that is to say, their omission to say something) concerning the existence of a particular fact might be misleading or deceptive (or false and misleading) if there exists on the part of another person a reasonable expectation that the fact would be disclosed if it existed: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, 32 (Black CJ). In Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357, 370 [21], French CJ and Kiefel J observed that:

To invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect of non-disclosure unmediated by antecedent erroneous assumptions or beliefs or high moral expectations held by one person of another which exceed the requirements of the general law and the prohibition imposed by statute.

62    In assessing the existence of a “reasonable expectation” of the kind to which French CJ and Kiefel J referred, the court may take account of the matters referred to in Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2017] FCA 1047, [20] (Middleton J), namely:

•    the circumstances and context of the conduct [that is sought to be impugned];

•    the knowledge of the person to whom the conduct is directed (at least to the extent it relates to the content, context and circumstances of the conduct);

•    the existence of common assumptions and practices established between the parties; and

•    the existence of common assumptions and practices prevailing in the particular profession, trade or industry.

63    Whether a representation has been made—either expressly by words conveyed or implicitly as a function of identifiable conduct (including silence)—is a question of fact that turns upon consideration of what a respondent has done, understood in its proper context and against the backdrop of all relevant circumstances: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, 84 [100] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

The Cohort A contraventions

64    By the admissions that it makes herein, Belong accepts (in effect if not in terms) that:

(1)    between the point that it effected the Speed Tier Switch and the points that it informed the Cohort A Customers that it had done so, it represented to each of them that their NBN access plan was one that accommodated a theoretical maximum upload speed of 40Mbps; and that

(2)    it did so by:

(a)    signing them up to plans that were marketed or publicly described as such; and then

(b)    failing to inform them that it had effected the Speed Tier Switch; and

(3)    that representation was, in each case, made in contravention of the ACL (specifically, ss 18, 29(1)(b) and 29(1)(g)), in that it was:

(a)    misleading or deceptive, or likely to mislead or deceive; and

(b)    false and misleading as to a particular standard, grade or performance characteristic inherent in each customer’s plan.

65    There is a dispute as between the parties concerning how Belong should be understood to have represented what it admits that it represented. Additionally to the circumstances that Belong highlights in its admission, the ACCC relies upon Belong’s having:

(1)    continued after the Speed Tier Switch to employ the label “Premium” in respect of its flagship service;

(2)    represented by means of the Migration Term that it would only “migrate” customers’ services with prior reasonable notice; and

(3)    continued to invoice those customers much as it had done prior to that switch.

66    That reliance is (or seems to be) placed with a view to establishing a greater number of ACL contraventions than Belong is minded to admit. Specifically, the ACCC contends that the admitted (and false) representations—namely, that Belong’s “Premium” plan customers continued after the Speed Tier Switch to enjoy a service capable of supporting uploads of up to 40Mbps (the “False Cohort A Representations”)—were ongoing and repeated. Belong describes that suggestion as “…an undisguised attempt to increase the number of contraventions and/or the period of contravening conduct…”

67    Both parties invited the court to defer consideration of the number of contraventions until the matter proceeds to its “relief” phase. I do not consider that to be appropriate. At issue presently is whether Belong should be understood to have engaged in conduct in contravention of the statutory injunctions that it is accused of contravening. Consideration of that as a separate question (that is to say, separate from the question of what relief might be warranted if liability is established) requires some precision. If the court is satisfied that contraventions occurred, it must be able to say how. And if it is able to say how (as it must be), then it should. Anything less risks clouding the “relief” phase of the matter with a measure of avoidable confusion as to what conduct it should be thought necessary to address by the granting of relief—and, more significantly, risks being mistaken as an invitation to relitigate in the context of relief matters that ought to have been resolved in the context of establishing liability.

68    The False Cohort A Representations were not products of a single instance or course of conduct. Rather, they were conveyed implicitly by Belong’s silence about the Speed Tier Switch, itself contextualised by what had previously been said about the affected plans (including as to the maximum upload speed of which they were capable) and the manner in which they continued to be administered. The False Cohort A Representations were necessarily ongoing throughout the roughly six-month period of non-disclosure (and longer for the Additional Cohort A Customers), in that Belong maintained the relevant silence for its entirety; but it is wrong to suggest that, in respect of individual “Premium” plan customers, the representation was made repeatedly by reason of the individual instances of conduct that contextualised that silence (including Belong’s ongoing administration of its “Premium” customers’ plans).

69    I accept (and, indeed, Belong concedes) that, from the point of the Speed Tier Switch, that silence was apt to represent something that was not true: namely, that the “Premium” plans that are in focus were capable of effecting data uploads at up to 40Mbps. Insofar as concerned each affected customer, however, that representation was not conveyed solely by the publishing of assertions about the plans’ characteristics (which were correct when they were made), or by the words employed in the governing terms and conditions, or even by the invoices that affected customers continued to receive after the Speed Tier Switch was implemented. In the case of each affected customer, it was conveyed because the circumstances were such that each had a reasonable expectation that their service—or, at least, the speed at which it was capable of uploading information—would not detrimentally be changed without prior disclosure; and because, in the absence of such disclosure, each would reasonably (but falsely) have assumed that no such change had been made.

70    Whether the reasonable expectation of the Cohort A Customers arose because of some or all of the circumstances to which the ACCC points doesn’t much matter (at least not for the purposes of establishing Belong’s liability for the ACL contraventions that are alleged against it in respect of them). What matters for present purposes is whether—and, if so, how—Belong can be understood to have contravened the statutory injunctions that it stands accused of contravening. At the risk of repetition, it should be so understood because, at and from the point of the Speed Tier Switch, each of the Cohort A Customers had a reasonable expectation that they would be told in advance of any detrimental changes made to the speed capabilities of their plan; and because, by making the changes that it made without any such disclosure, Belong should be understood to have represented something that was false, namely that their plan had the same 40Mbps upload speed capabilities after the switch as it had before it.

71    That representation, made to each of the Cohort A Customers in that way, was made in contravention of ss 18, 29(1)(b) and 29(1)(g) of the ACL.

The Cohort B Customers

72    Belong denies that it made to any of the Cohort B Customers any of the representations that the ACCC attributes to it.

73    It is worth repeating what is alleged. In respect of each of the Cohort B Customers, the ACCC maintains that Belong represented (and continues to represent) that their “Premium” plan:

(1)    had (and has) not been altered in any way by means of the Speed Tier Switch;

(2)    was (and is) of the same standard, quality, value or grade as it was before the Speed Tier Switch; and

(3)    had (and has) the same performance characteristics, uses or benefits as it did before the Speed Tier Switch.

74    Although phrased in ways that reflect the different statutory permutations upon which the ACCC relies, the three alleged representations essentially distil to the same thing: namely, that Belong made changes to each “Premium” customer’s plan without telling them, the consequence of which was to thereafter and falsely represent to each of them that their service (at least insofar as concerned the maximum speed at which it could accommodate data uploads) was the same as the service up to which they had originally signed. For ease of reference, I shall refer to that as the “Non-Alteration Representation”.

75    The means by which the Non-Alteration Representation (and each of the three subspecies of it) is said to have been made emerge, albeit with some effort, from the further amended concise statement. They inhere in three alternatives (each of which comprises of its own constituent alternatives), expressed as “(A)” through “(C)” in paragraph 10 (above, [47]).

76    First, it is said that Belong made the Non-Alteration Representation (and each constituent representation) by doing one or both of (a) publishing the terms and conditions upon which it provided “Premium” plan access (which, relevantly, included the Migration Term), and (b) continuing after the Speed Tier Switch to invoice “Premium” plan customers as it previously had done.

77    Second, it is said that the Non-Alteration Representation was made by reason of Belong’s having done either or both of those things plus one or both of: (a) providing to affected customers various literature that, prior to the Speed Tier Switch, described the plan as a “Premium” plan (or some analogue thereof); and (b) not telling them when the Speed Tier Switch was effected that their service had changed.

78    Third, it is said that Belong made the Non-Alteration Representation by reason only of its having done both of “(a)” and “(b)” above.

79    There are, then, four discrete species of conduct upon which the ACCC relies to establish the making of the Non-Alteration Representation, namely Belong’s having:

(1)    provided customers with written terms and conditions that included the Migration Term (the “Terms and Conditions Conduct”);

(2)    continued (after the Speed Tier Switch and in the same manner as it had done before it) to invoice its “Premium” plan customers (the “Invoicing Conduct”);

(3)    provided customers with material describing the plan (prior to the Speed Tier Switch) as “Premium” or some analogue thereof (the “Marketing Conduct”); and

(4)    omitted to tell affected customers about the Speed Tier Switch (the “Silence”).

80    By its further amended concise statement, then, the ACCC alleges that Belong made the Non-Alteration Representation (and its constituent representations) by engaging in any one or more of the following combinations of those four species of conduct, namely:

(1)    the Terms and Conditions Conduct;

(2)    the Terms and Conditions Conduct and the Invoicing Conduct;

(3)    the Terms and Conditions Conduct and the Marketing Conduct;

(4)    the Terms and Conditions Conduct and the Silence;

(5)    the Terms and Conditions Conduct, the Invoicing Conduct and the Marketing Conduct;

(6)    the Terms and Conditions Conduct, the Invoicing Conduct and the Silence;

(7)    the Terms and Conditions Conduct, the Invoicing Conduct, the Marketing Conduct and the Silence;

(8)    the Invoicing Conduct;

(9)    the Invoicing Conduct and the Marketing Conduct;

(10)    the Invoicing Conduct, the Marketing Conduct and the Silence;

(11)    the Invoicing Conduct and the Silence; and

(12)    the Marketing Conduct and the Silence.

81    As unwieldy as all that is, the task for the court now is to consider whether Belong might properly be understood to have made the Non-Alteration Representation (or the constituent representations that underlie it) by its having effected the combinations of conduct listed above.

82    Fortunately, that process can be accelerated to some extent. It is sufficiently clear, in my view, that, if it was made at all, Belong’s making of the Non-Alteration Representation was made at least partially by reason of the Silence. None of the other three species of conduct, alone or in any combination, could suffice to establish its making. I shall explain why; albeit summarily.

83    By publishing governing terms that included the Migration Term, Belong cannot properly be understood to have represented that its “Premium” plan continued unchanged after the Speed Tier Switch. The Migration Term, by itself and in isolation from other circumstances, did not (and could not) convey that representation. By itself, it conveyed only Belong’s commitment that any “migration” of a customer from one service to another would be the subject of prior notice. Even considered in the context of the Invoicing Conduct and the Marketing Conduct, Belong’s reliance upon or propagation of the Migration Term simply could not, without more, convey what the ACCC submits was conveyed.

84    Likewise, the continuing issuance of invoices—again, looked at in isolation from other things—conveyed merely that Belong expected its “Premium” plan customers to pay nominated amounts by nominated dates in respect of their nominated plans. Divorced from the surrounding circumstances that might contextualise it—most notably the Silence—a customer’s receipt of an invoice does not represent to them that the service remains unchanged in its material particulars (nor, more specifically, as to the upload speed of which it is capable). Nor does it do so when considered together with the existence of the Migration Term and/or the Marketing Conduct. Without more, the representation that the ACCC seeks to attribute to Belong simply wasn’t made.

85    Finally, insofar as concerns the Marketing Conduct, equivalent observations arise. What Belong said about the nature of its “Premium” plan may be accepted. But that cannot, without more, support a contention that those statements were apt to represent that Belong’s “Premium” plan was relevantly identical after the Speed Tier Switch to how it was before it. Again, that representation simply does not emerge from the Marketing Conduct alone, nor from that conduct understood in combination with the Terms and Conditions Conduct and/or the Invoicing Conduct.

86    With those observations made, it is convenient to assess the other combinations of conduct that are relied upon to substantiate the contentions that the ACCC advances.

Combination 4: the Terms and Conditions Conduct and the Silence

87    The ACCC maintains that Belong may be understood to have made the Non-Alteration Representation by its having engaged in the Terms and Conditions Conduct and the Silence. It is put that, by representing that changes to customers’ services would be the subject of notice and by failing to advise its “Premium” plan customers about the Speed Tier Switch, Belong should be understood wrongly and thereafter to have represented to them that no changes had been made to those plans.

88    By telling its customers “we’ll tell you if we make changes to your service” and then not telling them when such a change was made, it is easier to see how Belong might be thought to have made the Non-Alteration Representation that the ACCC attributes to it. Necessarily, it can only be understood to have done so by silence and in circumstances in which affected customers had a reasonable expectation that they would be told about the Speed Tier Switch.

89    The question thus arises: did such an expectation arise as a consequence of Belong’s reliance upon (or its publication or provision of) the Migration Term? There is, as Belong submits, reason to doubt that it did. To suppose that customers were led by the Migration Term to presume that they would be told about changes to their service if any were made is to suppose, at the least, that they had read and understood it.

90    That proposition rests upon insecure evidential foundations. It is the case that Belong’s terms and conditions—including the Migration Term—were shown to customers before they committed to a “Premium” plan. Customers could only perfect that commitment by ticking a check box that acknowledged that they had read those terms (amongst other things).

91    Factually, none of that is controversial. But should it warrant a finding that the mere existence or provision of the Migration Term gave rise to a reasonable expectation that Belong would give prior notice of service changes (or material service changes, or changes or reductions to the upload speeds of which particular services were capable)? That is a more difficult question. As Belong fairly submitted (references omitted, emphases original):

In the context of the Belong website, the ordinary consumer would not be likely to read every word on the webpages or click on every link to additional information contained on those webpages. That the terms were generally available through a link at the bottom of Belong’s website says nothing as to the likelihood that they were read, let alone read carefully.

Assuming the ordinary reasonable consumer does go to the Customer Terms, the migration clause is not prominent. One must scroll a considerable way down. There is a main heading, “Suspension, cancellation or termination of your service”. These words are not suggestive of anything to do with the speeds of the customer’s service. The last paragraph of the section is the migration clause.

The migration clause does not mention upload speeds, or even speeds. The heading states: “Our right to migrate your service”. The ordinary reasonable consumer must form a view as to what “migrate” means as used in the clause. The ordinary reasonable consumer might wonder what “right” Belong is talking about. The ordinary reasonable consumer might also wonder about the meaning of “service”. The ordinary reasonable consumer might also understand that Belong is giving itself permission to do something with “your service”.

Assuming the ordinary reasonable consumer reads the clause in its entirety, they might understand that the clause involves some form of conditional right, as was submitted by the ACCC. However, a conditional right provides no basis for a representation that the Belong broadband service supplied to the customer “had not been altered in any way”…

92    The ACCC maintains that it should not matter whether Belong’s “Premium” customers read and understood the Migration Term. It submits that “[a] representation contained in a publicly available document which is capable of inducing error if it is wrong is liable to mislead consumers even without evidence that a particular consumer had read it”. Respectfully, that submission is misconceived.

93    To understand why, it is necessary, first, to address the suggestion that what the Migration Term represented was “wrong”. Read fairly and in context, the Migration Term represented to those who read and understood it that Belong would not migrate them to an alternative service without notice. Even assuming that Belong did later do precisely what the term suggested that it would not do, that does not suffice to render the representation “wrong”. Moreover, it does not, of itself, suffice to represent anything that approximates the Non-Alteration Representation, which is the subject of the ACCC’s claim.

94    Whether that representation was made depends upon whether or not “Premium” plan customers had a reasonable expectation at the time of the Speed Tier Switch that they would be informed about any changes (or reductions) to the upload speed capability of their plan. The extent to which such an expectation might have arisen as a product of the Terms and Conditions Conduct very much turns upon the representational force that might be said to have attached to the Migration Term. In other words: was it read and understood?

95    I am not persuaded that that force has been established. The Migration Term is fairly described as a “boilerplate” provision that was buried within a series of contractual clauses that, although not especially complex or lengthy, it is unrealistic to expect that many would have had the inclination to read.

96    As it happens—and for reasons to which I shall shortly return—I consider that Belong’s “Premium” plan customers had a reasonable expectation that they would be notified of detrimental changes to the upload speed capability of their plan; and that that expectation arose regardless of any familiarity that individual customers might have had with the Migration Term. That said, I accept the force in Belong’s submission: the Migration Term was not, in and of itself, “wrong”; and it did not have representational force sufficient to found, by itself, a reasonable expectation on the part of “Premium” plan customers that they would be notified of the Speed Tier Switch.

97    The combination of the Terms and Conditions Conduct and the Silence is not, in my view, sufficient to establish that Belong made the Non-Alteration Representation.

Combination 6: Terms and Conditions Conduct, Invoicing Conduct, and Silence

98    As an alternative to combination 4 (addressed above), the ACCC maintains that Belong should be understood to have made the Non-Alteration Representation by that conduct plus the Invoicing Conduct (in other words, by its having previously marketed its “Premium” plan as such, by its having continued to issue invoices to those who signed up to it and by its failure to advise of the Speed Tier Switch).

99    For present purposes, I do not consider that the addition of the Invoicing Conduct to the conduct that constitutes combination 4 (addressed above) takes things anywhere. That Belong continued to invoice for its “Premium” plans much as it had prior to the Speed Tier Switch is a circumstance closely related to the Silence. Both are relevant only insofar as those customers might be understood to have had a reasonable expectation prior to the Speed Tier Switch that they would be told of changes to the upload speed capability of their plans—relevant, specifically, in that both serve to illustrate a failure on Belong’s part to discharge that expectation (if it existed).

100    If that expectation existed, then Belong’s continued issuing of invoices and its silence as to the change would be relevantly false or misleading. The existence of such an expectation does not, however, emerge any more from the fact that Belong continued to issue “Premium” plan invoices after the Speed Tier Switch than from the fact that it provided its customers with material that included the Migration Term. That combination of circumstances simply does not give rise to or bespeak the existence of a reasonable expectation on the part of “Premium” plan customers that they would be told about the Speed Tier Switch.

101    It follows that I do not consider that the conduct inherent in what I describe as “combination 6” is sufficient to establish that Belong made the Non-Alteration Representation (or any of its constituents).

Combination 10: Marketing, Invoicing and Silence

102    It is convenient, at this juncture, to skip combination 7 (which also partly comprises the Terms and Conditions Conduct) and focus, instead, upon the tenth combination. Might it be said that the substitution of the Marketing Conduct—that is to say, Belong’s having consistently described its “Premium” plan as such—for the Terms and Conditions Conduct should suffice where the other combinations have thus far failed?

103    In my view, it should. Perhaps it might be said, as I have above, that the Invoicing Conduct, of itself, is of marginal if any value in terms of assessing the existence, on the part of Belong’s “Premium” plan customers, of a reasonable expectation that they would be told about detrimental changes to the upload speed capability inherent in their plans. Be that as it may, I consider that such an expectation existed; and existed at least in part because of the way that the plan was marketed.

104    There can be no controversy in the proposition that upload speed capability is a material characteristic of any NBN access plan; albeit, perhaps, one that is typically less important to consumers than download speed, price and data allowance (that is, limitations on the volumes of data that can be sent and received over pre-defined (usually billing) periods). Here, Belong is careful to point out that, insofar as concerns the Cohort B Customers, it did not make any representations about the upload speed capability of its “Premium” plan. That is similarly uncontroversial. The issue for consideration presently is whether individual Cohort B Customers were misled into thinking that, whatever the upload speed inherent in their plan was, it hadn’t changed from what it was when their service commenced.

105    I return, then, to the materiality of upload speed to NBN access plans. Being an essential feature by which one NBN plan might be distinguished from another, I consider that upload speed capability is sufficiently critical to their character that consumers would reasonably expect to be advised of any detrimental changes to it. That is probably so for all such plans; but particularly is it so of an access plan that is and continues to be marketed as “premium”, for which invoices have been and continue to be rendered as always. Likewise, it is true of a feature that, although measurable, most consumers would likely not have occasion independently to verify. Unlike reductions to an access plan’s download speed—which might manifest in performance degradations (such as buffering or reduced resolution graphics) that might present in ways that consumers would have occasion to realise—the halving of the “Premium” plan upload speed capability in the present case is less likely to be observable to many consumers.

106    Those realities acknowledged, Cohort B Customers would be entitled to construe—and, in my view, would reasonably have construed—Belong’s silence concerning the Speed Tier Switch, understood against the backdrop of the Invoicing Conduct and the Marketing Conduct, as a representation that the service to which they were bound was the same in material respects (including as to its upload speed capability) as it had always been.

Combinations 7, 11 and 12

107    The observations just made suffice to address the remaining combinations as well. I needn’t repeat anything already said.

Conclusion: was the representation made?

108    It follows that I accept that Belong should be understood to have represented to each of the Cohort B Customers what the ACCC seeks to attribute to it. It did so by marketing its “Premium” plan in the ways that it did, and by continuing to attend to or administer them as though nothing had changed, in circumstances where the affected customers had a reasonable expectation that they would be told about the Speed Tier Switch.

Was it made in contravention of ss 18, 29(1)(b) or 29(1)(g)?

109    Satisfied, as I am, that Belong should be understood to have made the Non-Alteration Representation (and the constituent representations that underlie it), attention should turn to whether it did so in contravention of the statutory provisions upon which the ACCC relies.

110    Insofar as concerns s 18(1) of the ACL, the answer to that question is straightforward. Having falsely represented to each of the Cohort B Customers that their internet access plan (at least insofar as concerned the maximum speed at which it could upload data) was the same as the service up to which they had originally signed, Belong must be understood to have engaged in misleading or deceptive conduct, or in conduct likely to mislead or deceive.

111    The situation is less straightforward insofar as concerns the ACCC’s allegations of breach of s 29 of the ACL. It is to be recalled that s 29(1)(b) prohibits a person from making a false or misleading representation that a service is of a particular standard, quality, value or grade. Thus the question arises: did the Non-Alteration Representation (or its constituents) relevantly suggest that, from the point of the Speed Tier Switch, the “Premium” plan to which the Cohort B Customers were signed was “…of a particular standard, quality, value or grade” (my emphasis).

112    The ACCC submits that the particular standard, quality or grade of the “Premium” plan that was the subject of the Non-Alteration Representation was, “…the standard, quality or grade of the service as at the time when the customer had signed-up”. That, it maintains (in each respect) was sufficiently “indicated” or “certain”, notwithstanding that Belong made no express reference, at any point, to its accommodating a 40Mbps upload speed.

113    I am not persuaded that the Non-Alteration Representation (or any of the constituent representations by which it was comprised) was sufficient to convey anything particular about any standard, quality or grade that attached to Belong’s “Premium” plan. The suggestion that one service is the same as another is not a suggestion that it has a “particular” standard, quality, value or grade. It serves no more than to represent that whatever are the standards, qualities, values or grades that attach to that other service, so too are the standards, qualities, values or grades that attach to it. Those standards, qualities, values or grades are not, in that sense, identified or certain. They are no more than contingently or indirectly ascertainable.

114    In the context of this matter, that last observation might be unrealistically generous. It is to be recalled that Belong did not, at any point, make any representation to Cohort B Customers about the speed at which their “Premium” plans could upload data. Likewise, excepting perhaps the evidence that was led (such as it was) about the receipt of complaints after the Speed Tier Switch, there is no evidential basis upon which the court might assume that any of them had occasion independently to know it. Not only did the Non-Alteration Representation say nothing “particular” about the relevant upload speed; the affected customers’ opportunity to compare what it was after the Speed Tier Switch with what it was before it might well have been spent.

115    It doesn’t much matter. The Non-Alteration Representation cannot be understood as a representation about a particular standard, quality or grade that was inherent in Belong’s “Premium” plan. False and misleading though it was, I do not accept that Belong contravened s 29(1)(b) of the ACL by making it.

116    The requirement of particularity that is baked into s 29(1)(b) of the ACL is not a characteristic of s 29(1)(g). Thus, a representation that is made as to a service’s performance characteristics will offend that injunction if it is false or misleading.

117    Presently, it may be accepted that Belong represented to Cohort B Customers (in the way explored above) that their “Premium” plans had the same performance characteristics after the Speed Tier Switch as they did before it. That representation was false or misleading (indeed false and misleading) because one of its performance characteristics—namely, the speed at which it was capable of accommodating data uploads—was different after the Speed Tier Switch.

118    It follows that I accept that Belong contravened s 29(1)(g) of the ACL by representing to each of the Cohort B Customers that their “Premium” plan had (and has) the same performance characteristics, uses or benefits as it did before the Speed Tier Switch.

Significance of the usage monitoring

119    Something should be said of the evidence summarised above about the efforts to which Belong went to identify whether its “Premium” plan customers might even realise that (or if) the Speed Tier Switch was effected.

120    Belong relies upon that evidence to support the contention that, even assuming that the Non-Alteration Representation was made (as I have found), it was not relevantly false. It submits that, “…to the extent upload speed is considered, there was no material change to upload speed because for the vast majority, their user experience remained unaltered or only immaterially changed…”

121    That submission cannot be accepted.

122    It is not the case that the monitoring that Belong undertook demonstrated that its customers rarely achieved upload speeds in excess of 20Mbps. It is to be recalled that the monitoring was done in five-minute blocks. What it showed was that comparatively few Cohort B Customers averaged upload speeds in excess of 20Mbps over individual five-minute blocks. It says nothing about the instant speeds that were achieved at any given time. All that it shows—perhaps unremarkably—is that few Cohort B Customers had occasion to upload more than 750 megabytes’ worth of data (or 6,000 megabits’ worth) in any five-minute block of time throughout the monitoring period.

123    Regardless, the real-world experiences of Belong’s customers are irrelevant (at least in the present “liability” context). At issue presently is whether the Non-Alteration Representation was relevantly false or misleading, not whether some or many or all of the Cohort B Customers had occasion to realise that it was false or misleading. The fact remains—whether it would be realised or not—data uploaded via an NBN access plan that accommodates upload speeds of 20Mbps will take longer to transfer than it would otherwise take via a plan that accommodates upload speeds of 40Mbps. That truth is no less inescapable than the mathematical reality that 20 is less than 40. Even assuming that they didn’t need that capability or wouldn’t miss it after it was taken from them, Belong’s “Premium” plan customers nonetheless had a reasonable expectation that that diminution to their service would be brought to their attention in advance.

124    The evidence that was led about the usage monitoring that Belong conducted prior to making the Speed Tier Switch has no bearing on whether or not the statutory contraventions that the ACCC alleges are made good.

Conclusions and next steps

125    I accept that, by implementing the Speed Tier Switch without notice, Belong has contravened:

(1)    insofar as concerns the Cohort A Customers, ss 18, 29(1)(b) and 29(1)(g) of the ACL; and

(2)    insofar as concerns the Cohort B Customers, ss 18 and 29(1)(g) of the ACL.

126    In the case of the Cohort A Customers, it did so by its silence, which, in circumstances that included the making of prior representations about the upload speed capability of their “Premium” access plans, was apt falsely to represent that their plans continued to accommodate those same upload speeds following the Speed Tier Switch.

127    In the case of Cohort B Customers, it did so by its silence, which, by reason of:

(1)    its having marketed the “Premium” plan as such; and

(2)    its having continued to render invoices for it much as previously it had,

was apt falsely to represent to Cohort B Customers that their plans continued to accommodate the same maximum upload speeds as they always had.

128    Having so concluded, it follows that the matter should proceed for further hearing on the question of what, if any, relief should be granted in consequence of the statutory contraventions that have been established. I will invite the parties to confer and, ideally (as they have to date), agree upon suitable programming orders for the filing of such further evidence and submissions relevant to relief as they consider might be necessary. In the meantime, it shall be sufficient that the matter be adjourned to a date or dates to be fixed for further hearing as to that issue (relief).

Associate:

Dated: 21 February 2025