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.