Australian Competition and Consumer Commission v Energy Watch Pty Ltd

Federal Court of Australia|2012-04-30|Before: Marshall J

REASONS FOR JUDGMENT 1 Consumers today are continually bombarded with claims by advertisers that their products have certain characteristics or features which make them desirable to many members of the public. This proceeding concerns a claim by the competition regulator, Australian Competition and Consumer Commission ("ACCC"), that the respondents have engaged in an advertising campaign which included claims that were false, misleading and deceptive, likely to mislead or deceive and liable to mislead or deceive contrary to consumer protection legislation applicable in this country. 2 Between January 2011 and September 2011 the first respondent, Energy Watch Pty Ltd ("Energy Watch") engaged in an extensive advertising campaign to promote its business. The campaign was conducted through a broad range of media including television, print, radio, billboards and a football scoreboard at the Melbourne Cricket Ground ("the MCG"). 3 Energy Watch is a corporation which provides brokering services for the retail purchase of electricity and/or natural gas for residential customers and business customers. It has agreements with retailers of electricity and natural gas from which it receives commissions or brokering fees for introducing customers to such "preferred retailers". 4 ACCC alleges that during the advertising campaign Energy Watch made representations which involved it in contraventions of ss 18(1), 29(1)(g) and 34 of the Australian Consumer Law ("the ACL"), Sch 2 to the Competition and Consumer Act 2010 (Cth).

General principles 10 The advertisements in the campaign make certain representations to members of the public about the energy brokering business of Energy Watch with a view to enticing such persons to become customers of Energy Watch. As the conduct complained of was not directed to a specific individual, it is crucial to identify the relevant class of persons likely to be affected. All parties to this proceeding accepted that the class of prospective Energy Watch customers must be extremely broad. The Court accepts those submissions. 11 The advertisements must be viewed from the perspective of "ordinary" and "reasonable" members of the class or a hypothetical individual having those characteristics, in the context of "a mass-marketed product for general use". The Court may disregard possible reactions that may be described as "extreme" or "fanciful"; see Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at [102] to [105]. 12 As recently stated by Murphy J in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2011] FCA 1254 at [38]: The Court must take into account that many readers may not study advertisements closely but will absorb the general thrust. It is the impression or thrust conveyed to a viewer, particularly the first impression, rather than analysis of the cleverly crafted constituent parts of an advertisement that will be determinative of the message conveyed. 13 Further, as Perram J observed in Australian Competition and Consumer Commission v Singtel Optus Pty Ltd [2010] FCA 1177 at [5]: …each advertisement must be considered in the context of the medium in which it is expressed taking full cognisance of the different consumer experiences arising with different media.

The legislative context 14 Section 18 of the ACL provides in sub-section (1) that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 18 is not a civil penalty provision but breach of it may give rise to remedies other than a fine. It is the current equivalent of the former s 52 of the Trade Practices Act 1974 (Cth) (the TPA). 15 Section 29(1)(g) of the ACL provides that: 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: …. make a false or misleading representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits… Section 29 of the ACL was formerly s 53 of the TPA. Section 29(1)(g) is the current equivalent of s 53(c) of the TPA. 16 Section 29(1)(g), unlike s 18(1), is a provision breach of which may give rise to the imposition of a pecuniary penalty. 17 Section 34 of the ACL provides: A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services. This provision mirrors the former s 55A of the TPA. As with s 29(1)(g), contravention of s 34 may lead to the imposition of a civil penalty.

The Briginshaw submission 18 Counsel for the respondents, Mr Strong, submits that the evidence and issues in the proceeding must be considered by the application of the Briginshaw standard of proof due to the seriousness of the allegations raised by ACCC, bearing in mind that ss 29 and 34 are civil penalty provisions; see Briginshaw v Briginshaw (1938) 60 CLR 336. 19 Insofar as this proceeding concerns allegations of breach of ss 29(1)(g) and 34 of the ACL, the Court proceeds on the basis that it is dealing with civil penalty provisions. As the Court said in Fair Work Ombudsman v Maclean Bay Pty Ltd [2012] FCA 10 at [7] ("Maclean Bay"): In accordance with s 140 of the Evidence Act 1995 (Cth) the applicant is required to make out his case on the balance of probabilities. In deciding whether the Court is satisfied that any aspect of the applicant's case is made out on the balance of probabilities the Court will take into account the nature of the subject matter of each aspect of the proceeding and the gravity of the matters alleged; see s 140(2) of the Evidence Act. 20 See also Maclean Bay at paragraph [8], where the Court refers to the judgments in Qantas Airways v Gama (2008) 167 FCR 537. In Gama, French and Jacobson JJ noted at [110] that: The so-called Briginshaw test does not create any third standard of proof between the civil and criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining whether that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. 21 In a passage at [139] in Gama with which French and Jacobson JJ agreed, Branson J observed that references to "the Briginshaw standard" or "the onerous Briginshaw test" have a "tendency to lead a trier of facts into error". Her Honour observed: The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises…that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and …the circumstances in which it is sought to be proved. 22 I approach the evidence in this proceeding with respect to the allegations raised against the respondents, particularly with respect to ss 29 and 34 with the guidance of Gama which I am bound to apply in this proceeding. 23 The Court will now examine the representative advertisements the subject of the Statement. It will place itself in the position of an ordinary and reasonable member of the public faced with each particular advertisement in the medium in which it is found, whether by television, radio, billboard, scoreboard, newspaper, magazine or internet. 24 After examining the advertisements and making findings of fact as to the representations, the Court will consider whether ss 18, 29(1)(g) and 34 or any of them have been breached.

(i) The television advertisements known as the Big Screen Advertisements 25 This representative advertisement is 45 seconds in duration. ACCC alleges that the first five representations set out in paragraph 86 of the Statement are made in this advertisement. The advertisement commences with two men watching television on a small screen while a big screen television is not switched on. One of the men has an overdue energy bill. The inference made is that he cannot afford to turn on the large television. Then an Energy Watch woman appears in the advertisement dressed as an umpire. The woman blows a whistle and the following dialogue occurs: Female Umpire: Guys, stop comparing size and start comparing electricity rates. First Man: There's different rates? Female Umpire: Yep, and that's why you need to check with the electricity umpire, Energy Watch, Australia's number 1 energy broker First Man: They can reduce my bill? Female Umpire: Yep, Energy Watch is a free service that compares energy providers and helps over 150,000 people every year. So you guys can watch the big game on the big screen Both men: Sweet! 26 The Female Umpire is a young woman who is wearing running shorts and a black and white tee-shirt which has Energy Watch's website address written on it. Immediately after the above dialogue, the Female Umpire appears again dressed in a white collared shirt with an Energy Watch logo. Next to the woman are the words: "Compare and Save!" Towards the bottom of the screen are the words, "1300 SAVE NOW" and a reference to the website of Energy Watch. The woman then says "we save the average home $386 and a massive $1,878 for businesses". 27 At this point the screen says, "we save homes $386*. We save businesses $1,878*". The asterisks appear to relate to the disclaimers referred to below. 28 Below the web address and the phone number on the screen, two disclaimers appear. The first disclaimer commences at about 20 seconds into the advertisement and lasts until the 27 second mark. It states: Estimated calculated from average customer saving $386 over 2 years using Energy Watch recommended energy product. Savings will differ based on individual customer circumstances and energy usage. We do not compare all energy providers. 29 The second disclaimer occupies the last 10 seconds of the advertisement. It says: Estimated calculated from the average business saving $1,878 over 1 year and $386 residential use over 2 years using Energy Watch recommended energy product. Savings will differ based on business and residential circumstances and energy usage. We do not compare all energy providers. 30 Both disclaimers are tiny and difficult to read. During the course of his oral submissions, Mr Strong conceded that "even on a big screen" it would be "difficult to say" that the disclaimer "would be taken in" by a viewer.

(a) Has the Comparison Representation been made in this advertisement? 31 ACCC alleges that in this advertisement Energy Watch compares for: A person with an existing energy connection, that person's existing energy rates with the rates of all or many of the other energy retailers available in that person's locale; and A person who requires a new energy connection, the rates of all or many of the energy retailers in that person's area. 32 Counsel for ACCC, Mr Star, contends that the Comparison Representation as defined in the Statement and referred to in the preceding paragraph of these reasons has been made in this advertisement. The Comparison Representation is said to be derived from the woman in the advertisement saying "start comparing electricity rates" and "you need to check with the electricity umpire, Energy Watch", as well as "Energy Watch is a free service that compares energy providers". 33 In his written submissions on the topic of this advertisement as well as another television advertisement and a radio advertisement, counsel for the respondents, Mr Strong, contends boldly that no reasonable person could discern the Comparison Representation from any of them. In contrast, in oral submissions he conceded that "in some cases it will be a matter of impression, what messages the advertisements [are] giving". 34 I have carefully considered this advertisement and replayed it countless times on my chambers computer. I have tried to be as reasonable and detached as I could be in viewing the advertisement to consider whether the comparison representation has been made. My distinct impression on viewing the advertisement, with a completely open mind, is that it would convey to the reasonable viewer that Energy Watch will compare the energy rates which an existing user is paying with rates that are being provided more generally in the electricity market. 35 If I did not have an energy connection, but was contemplating establishing one, I would interpret the advertisement as Energy Watch representing to me that it would find the cheapest available rate for me. 36 For the above reasons, I consider that the Comparison Representation has been made by Energy Watch with respect to this advertisement. In so doing, I observe that Mr Strong has not sought to place reliance on the fleeting and microscopic disclaimers in the advertisement which contain the words "we do not compare all energy providers". Those words are very difficult to read and only capable of being read by pausing the advertisement and using a magnifying glass. In any event, the value of disclaimers in television advertisements has been acknowledged to be low: see Gillette Australia Pty Ltd v Energiser Australia Pty Ltd (2002) 193 ALR 629; [2002] FCAFC 223 at [26] per Heerey J.

(b) Has the Past Residential Savings Representation been made in this advertisement? 37 It will be recalled that the Past Residential Savings Representation is that: Energy Watch has an adequate basis to say that it has saved residential customers …or…average residential customers, who changed to an energy retailer to whom they were introduced by Energy Watch $386 or an average of $386 from their energy supply bills in the 12 months following the change of energy retailer. 38 I adopt, without repetition, all that the Court said with respect to its approach to viewing the advertisement in the context of this representation as occurred with the consideration of the Comparison Representation. The advertisement contains the representation that Energy Watch saves the average householder $386. This is part of the dialogue of the Female Umpire. The advertisement previously refers to "saving 150,000 people every year". The reference to "$386" can only be sensibly interpreted as referable to a time period. No reasonable person would infer that the savings to be gained from using Energy Watch would be $386 over some long indeterminate period or immediately. The prior reference to saving a number of people every year gives the advertisement the flavour of suggesting that a householder would have saved an average of $386 per year. That is the only sensible way I was able to interpret the dialogue without the disclaimer being discernible on a typical transient viewing. The Past Residential Savings Representation has been made in this advertisement.

(c) Has the Past Business Savings Representation been made? 39 There is no material distinction in the advertisement between the Past Residential Savings Representation and this representation, save as to amount. This advertisement conveys the distinct impression to a reasonable viewer that Energy Watch has saved businesses an average of "a massive $1,878" per year following a change of energy retailer or the setting up of a new connection by comparison with a possible alternative provider.

(d) Has the Future Residential Savings Representation been made? 40 The advertisement conveys the impression that the savings obtained in the past will continue to apply to an average customer in the future over a 12 month period. This representation was made by Energy Watch.

(e) Has the Future Business Savings Representation been made? 41 For the same reasons that apply to the Future Residential Savings Representation the Future Business Representation was also made.

(ii) The television advertisements known as the "Door Knocker ads" 42 All five of the same representations as with the Big Screen advertisement are alleged to have been made in this advertisement. Below, the Court sets out its findings upon a viewing of that advertisement with respect to each representation alleged to be made.

(a) The Comparison Representation 43 This advertisement shows a door-to-door salesman canvassing a male resident about a 25 per cent discount on an electricity bill when the Female Umpire from the Big Screen Advertisement arrives on the scene and blows a whistle. A woman appears from the house and asks "what's going on?" The Female Umpire wearing a tee-shirt displaying an Energy Watch logo then says: He was about to sign up without shopping around. I know it sounds like a good deal but check first with the electricity umpire, Energy Watch, it's a free service. The advertisement then makes the same statement about savings as occurred in the Big Screen advertisement. 44 There is a 30 second and a 45 second version of this advertisement. In the 45 second version, the Female Umpire says after the words "free service" the following words, "that compares energy providers and helps over 150,000 people every year". The emphasised words do not appear in the 30 second version. 45 The Comparison Representation is made in this advertisement. In particular the 45 second version gives the impression that Energy Watch will compare a potential customer's electricity rates with those prevailing elsewhere in the relevant market. This is especially conveyed from the words "compares energy providers". It is also conveyed by the words "check with the electricity umpire". The inference being that the offer proposed by the door knocker can be compared by what else is available to the consumer in the energy market. The 45 second advertisement conveys the representation even more starkly than in the 30 second version.

(b) The Past Residential Savings Representation 46 The 45 second version of this advertisement gives the impression to the ordinary and reasonable viewer that Energy Watch has saved residential customers an average of $386 per year in energy bills. The statement that Energy Watch helps 150,000 people every year gives colour and context to the subsequent claim in the advertisement that "we save the average home $386". That is a statement to the effect that such savings have been achieved. The Past Residential Savings Representation was made in this advertisement.

(c) The Past Business Savings Representation 47 For the same reasons expressed concerning the residential savings representation, this representation has been made.

(d) & (e) The Future Savings Representation 48 The advertisement represents to residential and business customers that the savings that have been made to others in the past will continue for new customers into the future.

(iii) YCBGRO version 1 television advertisement 49 The YCBGRO is short for "You Could Be Getting Ripped Off". It is alleged that the Comparison Representation has been made in this advertisement. The advertisement commences with two women discussing the high cost of electricity bills. One woman says to the other that she was being ripped off until a friend put her onto Energy Watch. She then says "they compared our rates, found us a much better deal and didn't charge us anything". Then a young woman wearing an Energy Watch shirt in a call centre environment appears on the screen and says, "Energy Watch.com.au can compare your rates and find you a better deal". 50 The Comparison Representation is made out in this advertisement. Any fair minded, reasonable viewer would consider that the advertisement represents, that for those with an existing electricity provider, Energy Watch will examine rates available broadly elsewhere in the electricity market to get the best available deal for the consumer or at least a better deal than the consumer's current provider can offer. Alternatively, for those seeking an energy provider for a new connection, the advertisement gives the strong impression that Energy Watch will compare the rates of all or many energy providers in a consumer's area to source the best available deal for that consumer.

(iv) YCBGRO television advertisements - versions 2 and 3 51 The representative advertisement in this category is YCBGRO version 3. ACCC alleges that this advertisement makes the Future $386 Savings Representation. That representation is set out in paragraph 86(f) of the Statement. Briefly, it is a representation that Energy Watch will save a consumer who switches energy providers to an energy provider suggested by Energy Watch in the ensuing 12 months any of the following: $386 from electricity bills, and/or An average of $386 from electricity bills; and/or $386 from Energy Watch's broker services 52 This advertisement is very similar to YCBGRO version 1, except that the women both say that they were in a contract, presumably with their previous energy provider, but that was not an impediment to a switch arranged by Energy Watch. Then a man appears, partially covering a sign which says "…energy bills cheaper for you, save $386". The man then says words including "on average, we save customers $386". This was accompanied by the visual statement "we save our customers on average $386*". 53 There is no reference to "saving 150,000 people every year" in this advertisement. The $386 is mentioned without reference to a time frame. An ordinary and reasonable viewer would ask what time period the $386 relates to. It would be unrealistic to consider it would relate to a weekly, monthly or immediate saving and not unrealistic but inherently likely that it would relate to a yearly saving. Otherwise, the reference to a $386 saving is meaningless. The Future $386 Savings Representation is made out in this advertisement.

(v) The Jack Watts television advertisement 54 This advertisement features Mr Jack Watts, an Australian Rules footballer with the Melbourne Football Club (MFC). In the advertisement, Mr Watts announces that Energy Watch is the new major sponsor of the MFC. The advertisement commences with a father and son watching football on a small screen, because the family's power bills are too large for them to watch football on a big screen television. Mr Watts is wearing an MFC tee-shirt adorned by an Energy Watch logo and signs which say "Save $386!" and "Energy Watch No 1 energy broker". Mr Watts says "now you can watch the big game on the big screen. Call Energy Watch. They compare energy providers and are Australia's No 1 energy broker. They save the average house $386 and a massive $1878 for businesses". The advertisement contains a visual statement which includes the words "compare and save" in readable form. 55 ACCC claims that this advertisement makes the Past and Future Residential Savings Representations and the Past and Future Business Savings Representations. These claims are made out. They arise from the assertion made in the advertisement that Energy Watch saves the average house $386 and a massive $1878 for business. The representation can only be sensibly interpreted as one that those savings have been made and will continue to be made by Energy Watch customers.

(vi) The radio advertisements 56 Energy Watch engaged in a radio campaign. A representative advertisement of that campaign was played to the Court. It features the second respondent, Mr Polis. The representative advertisement was broadcast in Queensland. In the advertisement, Mr Polis says the following: We compare energy providers, rates and plans and find you a better deal. We help over 150,000 people save on their energy bills every year. The average family saves $386 and the average business saves $1878. 57 ACCC submits that in this radio advertisement, Energy Watch and Mr Polis make the Comparison Representation, the Past and Future Residential Savings Representations and the Past and Future Business Savings Representations. Those submissions are accepted. Mr Polis claims that Energy Watch compares energy providers' rates and plans to find the consumer a better deal. No fair minded person could interpret that boast as other than a claim that a person's existing energy rates will be compared with all or many of the other rates available from other energy retailers capable of selling to the consumer. 58 The Past and Future Residential and Business Savings Representations are also made in this advertisement. It gives the very strong impression that Energy Watch has made savings for residential and business customers in the circumstances identified and that such savings are expected to continue to apply to new residential and business customers. The future representations are emphasised by the concluding words of the advertisement where a voiceover person says "save now before it is too late".

(vii) The print advertisements 59 Energy Watch caused or authorised the publication of certain print advertisements in Victoria, details of which are set out in the Statement at sub-paragraphs 33 (a) to (f). The first four categories of print advertisement were alleged to make the Past and Future Residential Savings Representations and the Past and Future Business Savings Representations ("the Savings Representations") by the same express words. However, each print advertisement differs subtly in its overall get-up and so must be considered individually.

(a) The "case study" newspaper advertisements 60 The first representative advertisement was published in the Saturday Age on 9 July 2011 in the BusinessDay section on p 14. ACCC relies in particular on the express statements "residential average saving $386*" and "business average saving $1,878*" to claim that Energy Watch has made the Savings Representations. 61 Mr Strong directed the Court's attention to the two "case studies" in small writing underneath the express statements in this advertisement. The first case study states: "Melbourne resident Dean Williams saved $632* on electricity by using EnergyWatch.com.au" and "Dean is now saving $79 a quarter on his electricity bills". The second case study states that Energy Watch saved a Mr Goyne's business "at least $35k per annum". Mr Strong contends the combination of these two case studies would lead a reasonable person to be uncertain "what period of time these average savings related to". However, the case studies do not detract from the overall impression that Energy Watch has saved or will save business and residential customers the specified average amounts per year. Mr Strong conceded the words "per annum" support this impression. 62 Asterisks are visible after the monetary figures in this advertisement. The asterisks relate to the pithy statement "refer to website" in the bottom right hand corner of the advertisement. The words are unclear and not sufficiently prominent to counter the dominant message. They do not disclaim or qualify the representations in any way. The Savings Representations were made.

(b) The "Hate Energy Bills?" newspaper advertisements 63 The representative advertisement was published in the Saturday Age on 16 July 2011 in the BusinessDay section on p 4. ACCC alleges the Savings Representations were made in particular by express words identical to the first print advertisement. 64 The get-up of this advertisement is slightly different. It is a smaller banner and does not display any "case studies" or similar information. The banner reads "Hate energy bills?" Again, the disclaimer which features in the bottom left hand corner of the advertisement simply says "refer to website". It is practically illegible and insufficient to counter the Savings Representations which I find to have been made by the express words.

(c) The Melbourne Football Club advertisements 65 The representative advertisement in this category occupied around three-quarters of a page in the Saturday Age on 27 August 2011. It includes a photograph of the second respondent Mr Polis in a high five gesture with the late MFC player Mr Jim Stynes. ACCC alleges this advertisement makes the Savings Representations by the express statements already referred to in the previous print categories. I find that these representations were made. 66 The asterisks after the figures refer to a tiny disclaimer in the bottom left hand corner which states "www.energywatch.com.au/savingsdisclaimer". The disclaimer appears underneath the much larger and more arresting claim, "free footy!" Even if it was made sufficiently prominent, the disclaimer would be ineffective for the reasons addressed regarding the Energy Watch websites below.

(d) The AFL Record advertisement 67 This advertisement is a wrap-around to an edition of AFL Record for the period 26 August 2011 to 28 August 2011. The AFL Record in question was distributed in Victoria and had a circulation of approximately 28,000 copies. ACCC contends that the wrap-around makes the Savings Representations. The Past and Future Residential Savings Representations were claimed to be made, in particular, by the words on the front page "households average saving $386*" and the words on the back page "save $386*". The Past and Future Business Savings Representations were claimed to be made by the words on the front page "business average saving $1,878*". 68 I agree with ACCC's submissions that Energy Watch made the Savings Representations in this advertisement and that the small print does nothing to qualify those representations. The disclaimer which appears in tiny print on the bottom of the second page reads "terms and conditions at energywatch.com.au/freefooty". An ordinary or reasonable person would assume that such a disclaimer related to the terms and conditions of obtaining a free football, if anything.

(e) The Age newspaper advertisement 69 This smaller banner advertisement appeared in the Age on 5 July 2011. It was alleged to make the Savings Representations by the same express statements as for the prior print advertisements. I find these representations were also made in the context of this advertisement. 70 ACCC alleges the advertisement also made the Comparison Representation, particularly by the following statements: "we help homes, business and corporations save on energy bills", "compare and save!" and "we compare your current electricity rates and source you a better deal!" 71 I find that the Comparison Representation was made in this advertisement. Any fair minded, reasonable viewer would consider that the advertisement represents that for those with an existing electricity provider, Energy Watch will examine rates available broadly elsewhere in the electricity market to get the best available deal for the consumer, or at least a better deal than the consumer's current provider can offer. 72 Alternatively, for those seeking an energy provider for a new connection the advertisement gives the strong impression that Energy Watch will compare the rates of all or many energy providers in a consumer's area to source the best available deal for that consumer.

(f) The Age newspaper foldout 73 This advertisement consisted of a three-page foldout published in the Age on 26 August 2011. It contains more information in the form of words, pictures and colours than the previous print advertisements. However, it is alleged to make the Savings and Comparison Representations for similar reasons to the above advertisements. 74 In relation to the Residential Savings Representations, ACCC relies particularly on the words on the right hand side of the middle page "households average saving $386*" and the blue words next to the football on the front page "save $386*". I find that these representations were made in the context of this advertisement. 75 ACCC alleged that the newspaper foldout also makes the Comparison Representation by the following statements in particular: "compare energy providers and save $386*" and "compare your energy provider, get a better deal and a free footy" on the front page and in the middle two pages: "compare energy providers and get a better deal on your electricity from energywatch.com.au" and "compare and save!" 76 A reasonable person reading the advertisement would understand that Energy Watch compares a person's energy rates with all or many other retail energy providers in a person's area. The Comparison Representation was made. 77 The miniscule disclaimer in the bottom left hand corner of the front page and the bottom right hand corner of the middle page states "www.energywatch.com.au /savingsdisclaimer". Even if this disclaimer was sufficiently clear and prominent, it simply directs the reader elsewhere and is ineffective to counter the representations made.

(g) Other newspaper advertisements 78 The representative advertisement to be ruled upon appeared on the front page of the Saturday Age on 27 August 2011. The ACCC alleges it made the Future $386 Representation by the words "save $386*". The representation is made in the context of this advertisement. The disclaimer which appears in the bottom right hand corner of the advertisement, which is in the same terms as in the previous representative advertisement, is ineffective for the same reasons as discussed earlier in considering disclaimers.

(h) The Woman's Day advertisement 79 This advertisement is a full page in Woman's Day magazine (27 July 2011 edition). ACCC alleged Energy Watch made the Savings Representations by the words: "compare your energy provider and save $386*!" and "households average saving $386*". At the bottom of the page, there is a visible statement which reads: DISCLAIMER: *Energy Watch operates in all deregulated electricity markets. NSW, Vic, SA and South East QLD. The price rise refers to NSW only. However increases are being felt in all states. $386 is based on and average customer savings over 2 years. 80 Looking at this advertisement in the context in which it would be read, it is possible to say that the Savings Representations were not made. In ACCC v Harris Scarfe Australia Pty Ltd [2009] FCA 54 at [53] Mansfield J said in relation to print advertisements: …it is appropriate to consider not simply the words or images depicted but also their relative emphasis (whether by print size, location, colour or other manner of presentation) to determine whether the asserted representation has been made in its overall context…It is necessary to look to the way the asterisk is placed, the size of the footnote relative to the text in the body of the advertisement, and the terms of the footnote. 81 The disclaimer here is slightly larger than disclaimers in other advertisements. Moreover, unlike most of the other disclaimers, it contains pertinent information. In addition, it is possible to distinguish between the experience of watching a television advertisement such the Big Screen advertisement (discussed at [25] to [41] above) and the experience of reading a magazine like Woman's Day which is much more easily scrutinised. I find that the Savings Representations are not made out with respect to this advertisement.

(viii) Energy Watch website versions 1 and 2 82 Energy Watch maintained a website homepage which was altered from time to time. From at least 2 June 2011 to 7 June 2011, Energy Watch displayed, or caused to be displayed, on the website "http://www.energywatch.com.au" ("the Energy Watch website") content in the form of Energy Watch version 1. For at least the period from 15 June 2011 to 22 June 2011, Energy Watch displayed, or caused to be displayed content in the form described as Energy Watch Website version 2. ACCC alleged that Energy Watch versions 1 and 2 made the Comparison Representation by the following identical words: There are around 20 active energy retailers in Australia to choose from; Energy Watch is here to help you make an informed choice on which one fits your needs best. 83 I find that the Comparison Representation was made in this advertisement and note that this is a particularly strong example of Energy Watch representing to the public that it compares all, or many energy retailers available in a customer's area, through express words. 84 ACCC alleged that version 1 of Energy Watch's website also made the Future $386 Savings Representation by the words "on average we save customers $386*!" There is no disclaiming information despite the asterisk after the figure $386. I find this representation was made. 85 Version 2 of the Energy Watch website was alleged to have made the Savings Representations. It contains the following words "save on average…homes $386 business $1,878". There is no relevant disclaimer. I find the representations were made.

(ix) Energy Watch websites 3 to 5A 86 Energy Watch websites versions 3 to 5A are later versions of the Energy Watch homepage, displayed on its website from time to time. Each of the homepages was alleged to make the Comparison Representation by the words "compare and save", "we help over 150,000 people every year compare energy providers" and "we compare energy providers". The representative websites in this category are Energy Watch Websites 4 and 5. 87 The websites create the impression that the relevant comparison is with all or many energy retailers in the customer's area. This impression arises despite the words in the bottom middle paragraph of representative websites 4 and 5: "Energy Watch compares your current electricity company's rates with our preferred suppliers" (emphasis added). The emphasised words must be considered in context. Considering the website presentation as a whole, I find that the Comparison Representation was made. 88 ACCC alleged Energy Watch websites version 3 to 5A also made the Savings Representations by the words: "save on average Homes $386, Business $1,878". I find these representations were made. Again, the advertisement represents to residential and business customers that these savings have been made in the past and will continue for customers in the future. 89 The second representative website (Energy Watch website version 5) is slightly different to version 4. It includes the following disclaimer: Energy Watch disclaimer *The average saving forecast is an Australian national average amount of customers using the Energy Watch recommended electricity/gas energy product, compared to the customers remaining on the default electricity/gas energy rate, over a period of 2 years. Savings may differ, for full details please refer to www.energywatch.com.au/savingsdisclaimer. Energy Watch does not work with all suppliers, we recommend companies who provide our customers with competitive rates. Energy Watch cannot guarantee the best rate as we do not compare all providers. 90 Although it contains relevant information, this disclaimer is not, in my opinion, powerful enough to counter the representations. In order to read the fine print, it would be necessary to scroll down to the bottom of the webpage. Many, if not most reasonable persons would not scroll down the webpage or search for the disclaimer.

(x) Associated Energy Watch websites 91 This website category concerns Energy Watch "associated websites". These are defined in the Fast Track Statement at paragraph 60 as websites which Energy Watch authorised, caused or approved from 26 June 2011 until a date prior to 14 July 2011. The representative websites to be ruled upon are Polis Australia website versions 1 and 2. 92 ACCC submits both website versions make the Comparison Representation by the express statement "Energy Watch has compared electricity suppliers across the country to find you the best deals on your electricity prices". I find that the Comparison Representation is conveyed by each advertisement, particularly through these words. In so finding, I note there is no disclaimer or qualification on the website and no reference to "preferred suppliers".

(xi) Billboards E1 and E7 93 The Energy Watch billboards were placed in main traffic areas and would be seen by passing traffic. The representative billboard to be ruled upon in this category is the First Energy Watch Billboard. When considering the billboards, it is recognised that consumers are less likely to pay detailed attention to a billboard compared to other types of advertisement, as noted by Perram J in ACCC v Singtel Optus Pty Limited [2010] FCA 1177 at [5]. 94 ACCC contends that the billboard makes the Future $386 Savings Representation by the large words: "compare and save $386!" I find that this representation was made. No reasonable person would see the asterisked words "disclaimer information: refer to website". Even if the small print was visible to motorists and pedestrians, the words in the disclaimer are an insufficient to defy the overall impression that a consumer who uses Energy Watch's services will save either $386 and/or an average of $386 from their electricity bills and/or $386 by Energy Watch's brokering services.

(xii) Energy Watch billboards E5 and E6 95 ACCC alleges these billboards give rise to the Future $386 Savings Representation by the statement "compare and save $386!*" The representative advertisement in this category is the Seventh Energy Watch billboard. Unlike for the previous category, there is no disclaimer or qualifying information relating to the asterisk after the figure $386. However, the reasonable person viewing this billboard would understand that it related to energy bills, and would conclude that a consumer who uses Energy Watch's services will save either $386 or an average of $386 from their electricity bills and/or $386 by Energy Watch's brokering services. ACCC's claim is made out.

(xiii) Energy Watch billboards E2 to E4 96 The "Hate Energy Bills?" billboards were alleged to make the Savings Representations by the large words: "Compare and save! Homes $386* Business $1,878*" and the smaller words at the bottom of the billboard: "making energy bills cheaper for you". The Court was asked to rule on the second Energy Watch billboard. 97 The words "refer to website" in the bottom right hand corner of the billboard are not readable on the close-up photograph of the billboard which was tendered in Court. Nobody viewing the billboard from street level would see the disclaimer and it is ineffective in any event for the same reasons. I find the Savings Representations were made.

(xiv) MCG score board 98 This was a moving billboard which was flashed on and off the scoreboard during three AFL football games at the MCG. ACCC contends it made the Future $386 Savings Representation by the words "Save $386!" This is a specific claim about an amount of money which reasonable persons would assume would relate to a 12 month period. There is no relevant disclaimer. The Future Savings Representation is made out in this advertisement.

ConclusionS about the representations 99 The Court has found all the representations that ACCC alleged the respondents to have made were in fact made, with the exception of the representations alleged to be made in the Woman's Day advertisement. This means that (with one exception) the representations alleged by ACCC to have been made by the respondents at paragraphs 86 to 96 of the Statement have been made. The respondents admit that, apart from the Comparison Representation, if any other representations were made, they were false. The question now arises as to whether, as discussed in paragraph 97 of the Statement, the Comparison Representation was false, misleading and deceptive or was likely to mislead or deceive.

The Comparison Representation - False, Misleading and Deceptive? 100 ACCC alleges and the Court accepts that the Comparison Representation was false, misleading and deceptive or was likely to mislead and deceive. That is because for a person with an existing energy connection, Energy Watch does not and at no time did compare the person's existing energy rates with all or many of the other retailers' energy rates available in the person's area. 101 For a person who has acquired an energy connection, the evidence shows that Energy Watch does not and did not compare the rates of all or many of the energy retailers available in that person's area. The extent of Energy Watch's comparison was to compare the existing rate charged by a person's energy provider with the rates of Energy Watch's preferred retailers. Those preferred retailers are referred to at paragraph 5(d) of the Statement. They are: Energy Australia; Power Direct; AGL; ACTEW; and Momentum Energy 102 For a person who required a new connection, Energy Watch would only compare rates with those of its preferred retailers. At all material times, there were several other energy retailers. They are referred to at paragraphs 9, 10 and 11 of the Statement and are numerous. 103 Energy Watch points out that, at all material times, it maintained a database of products offered by energy retailers in Victoria, New South Wales and Queensland. Those suppliers included most of the businesses referred to in paragraphs 9 and 10 of the Statement as well as all of those referred to in paragraph 11. Energy Watch says that it updated this database and regularly compared the prices and plans offered by its preferred suppliers with those of other retailers on the database. Energy Watch says that if any of those other retailers had more favourable prices or plans to those of its preferred retailers, it would seek to negotiate an improvement in the prices and plans of its preferred retailers. 104 Energy Watch also refers to its advertising directing a potential customer to its website or phone number which would lead to contact with an Energy Watch representative before a customer enters into a transaction or commitment. The process that would occur in such a telephone conversation is set out at paragraph 99 (d) of the Statement. 105 It does not matter what database is kept by Energy Watch or what the process is for it to engage with potential customers when examining the question whether the comparison representations made in the advertisements are false, misleading or deceptive or are likely to mislead or deceive members of the public. Those comparison representations must be considered on their own merits. As Mr Addamo, Channel Manager at Energy Watch, conceded under cross-examination, Energy Watch compares a customer's existing rate with one of Energy Watch's preferred energy suppliers and does not have the ability to switch a customer to a retailer who is not one of Energy Watch's preferred suppliers. The fact that a customer may be advised that switching to a preferred supplier will not carry a cost saving does not mean that the representations made in the advertisements are not misleading when they give the very strong impression that a comparison will be made with all or many with the retailers in the relevant market. A comparison is made between what the customer is paying and what the customer would pay if obtaining power supply from one of Energy Watch's preferred retailers. The comparison representation, when made, does not give the impression that a comparison will be confined to Energy Watch's preferred retailers. The existence of an internal database identifying what is available in the market is irrelevant as to whether the comparison representation is false, misleading and deceptive. 106 The Comparison Representation where made in the advertisements, for the reasons expressed above, is false, misleading and deceptive and is likely to mislead or deceive. Any reasonable person seeing it, hearing it or reading it would assume that a comparison is being made with a much broader range of retailers than the very small group of Energy Watch's preferred retailers.

BREACHES OF THE ACL 107 Section 18 of the ACL has been breached by the respondents with respect to the identified advertisements. The respondents, by making the representations referred to at paragraph 86 of the Statement have, in trade or commerce, engaged in conduct that is misleading, deceptive or likely to mislead or deceive. They have made false representations which give wrong impressions to consumers about what is actually being offered to them in the advertisements. 108 Section 29(1)(g) of the ACL has also been breached by the respondents by their making of the abovementioned representations. The respondents have, in trade or commerce, in connection with the possible supply of services made false and misleading representations that those services have uses or benefits that they do not actually have. 109 Energy Watch and, in respect of the radio advertisement, Mr Polis, falsely gave the impression that Energy Watch compared energy prices more generally than it actually did. In the advertisements, it claimed that its services had a use or benefit that they did not possess because the comparisons were very limited. The same applied to its misleading assertions about savings of $386 or $1878 for household consumers and businesses respectively. The legal principles relevant to a finding that a representation is false or misleading in contravention of s 29(1)(g) of the ACL are identical to those relevant to a finding of breach of s 18; see ACCC v TPG Internet Pty Ltd [2011] FCA 1254 at [19] per Murphy J. 110 The respondents have also breached s 34 of the ACL. They have, in trade or commerce, engaged in conduct that is liable to mislead the public as to the characteristics of services. In this context, it is noteworthy that "liable to mislead" is a narrower term and which is easier to satisfy than "likely to mislead". Any conduct which is likely to mislead must, of necessity, be conduct which is liable to mislead. So much was held by Northrop J in see Westpac Banking Corporation v Northern Metals Pty Ltd (1989) 14 IPR 499 at 502. The unofficial internet version of that passage in the judgment is at [1989] FCA 187 at [13].

Further conduct of the proceeding 111 The Court will order that the parties bring in short minutes of draft orders necessary to give effect to these reasons for judgment. Those minutes may be accompanied, if necessary, by short submissions in support otherwise the proceeding is adjourned to a directions hearing to be held at 9.00 am on 25 May 2012. I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

aNNEXURE a - statement of agreed and disputed facts Statement of Agreed and Disputed Facts FAST TRACK No. VID 930 of 2011 Federal Court of Australia District Registry: Victoria Division: General Division AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant ENERGY WATCH PTY LTD (ACN 135 183 372) and another named in the schedule Respondents 1 This Statement of Agreed and Disputed Facts (Statement) is jointly made by: (a) the Applicant, the Australian Competition and Consumer Commission (ACCC); and (b) the First Respondent, Energy Watch Pty Ltd (Energy Watch) and the Second Respondent, Mr Benjamin Polis (Mr Polis), (the Respondents), collectively, the parties. 2 This Statement consists of the following sections: (a) Part A which sets out the matters on which the parties are in agreement, and is based upon: (i) the Further Amended Fast Track Statement (FTS) and the Fast Track Response of the First Respondent (EWR) and the Fast Track Response of the Second Respondent (BPR) to the FTS (the Pleadings); and (ii) some additional material not contained in the Pleadings, Part A is set out on pages 2 to 33 below (b) Part B which sets out the matters which the parties do not agree on and are therefore before the Court for determination. Part B is set out on pages 34 to 42 below 3 This Statement includes facts relevant to all of the advertisements that are the subject of the proceedings. The advertisements that are the subject of the bundle of representative advertisements (Representative Advertisements) are highlighted by a note in [yellow] in Part A and Part B of this Statement. Part A: Matters on which the Parties are in Agreement Note: The facts and matters in Part A are agreed by the parties for the purposes of s 191 of the Evidence Act 1995 (Cth). Applicant/ACCC 4 The ACCC is a body corporate established by s 6A of the Competition and Consumer Act 2010 (CCA), and is entitled to sue in its corporate name. First Respondent/Energy Watch 5 Energy Watch is and was at all material times: (a) a company duly incorporated under the Corporations Act 2001 (Cth); (b) a trading corporation within the meaning of s 4 of the CCA; (c) carrying on business in trade or commerce in Australia as a provider of brokering services for the retail of electricity and/or natural gas (energy) for residential customers and business customers; and (d) with respect to the services referred to in sub-paragraph (c) above, a party to marketing, broker, agency or other agreements (pursuant to which it received a commission and/or brokering fee) with energy retailers, namely: (i) Energy Australia (a New South Wales State-owned corporation incorporated under the Energy Services Corporations Act 1995 (NSW)) (Energy Australia); (ii) Powerdirect Pty Ltd (Power Direct); (iii) AGL Sales Pty Ltd (AGL); (iv) ACTEW AGL Retail (a partnership of AGL ACT Retail Investments Pty Ltd and ACTEW Retail Ltd) (ACTEW); and (v) Momentum Energy Pty Ltd (Momentum Energy), (preferred retailers); and (e) provided the services referred to in sub-paragraph (c) in respect of residential and business customers in at least New South Wales, Queensland and Victoria. Second Respondent / Benjamin Polis 6 Mr Polis is and was at all material times: (a) the Chief Executive Officer of Energy Watch having authority to speak on its behalf; and (b) the sole director, secretary and shareholder of Polis Australia Pty Ltd. 7 Mr Polis' statements in the Radio Advertisements (as defined in paragraphs 30 to 32 below) took place in, and was made accessible to consumers by, a radio broadcast. By s 6(3) of the CCA, the Australian Consumer Law (ACL) applied to Mr Polis as a law of the Commonwealth in relation to the statements said by him in the Radio Advertisements (as defined in paragraph 30 below). Polis Australia Pty Ltd 8 Polis Australia Pty Ltd (Polis Australia): (a) is and was at all material times a company duly incorporated under the Corporations Act 2001 (Cth); and (b) since August 2009 has been under external administration (in liquidation). Other relevant persons - energy retailers 9 The retailers of electricity and gas energy for residential and businesses customers (energy retailers) in New South Wales relevantly are and have been: (a) Actew AGL Retail Ltd (for electricity and gas); (b) AGL Energy Sales and Marketing Limited (for gas, large customers only); (c) AGL Retail Energy Limited (for gas); (d) AGL Sales (Queensland Electricity) Limited (for electricity and gas); (e) AGL (for electricity); (f) Aurora Energy Pty Ltd (for electricity, large customers only); (g) Australian Power and Gas (NSW) Pty Ltd (for electricity); (h) Cogent Energy Pty Limited (for electricity, large customers only); (i) Country Energy (for electricity and gas); (j) Energy Australia (for electricity and gas); (k) ERM Power Retail Pty Ltd (for electricity, large customers only); (l) Infigen Energy Markets Pty Ltd (for electricity, large customers only); (m) Integral Energy Australia (for electricity); (n) Lumo Energy (NSW) Pty Ltd (for electricity); (o) Momentum Energy (for electricity); (p) Origin Energy Electricity Ltd (for electricity and gas); (q) Power Direct (for electricity); (r) Red Energy Pty Ltd (for electricity); (s) Sanctuary Energy Pty Ltd (for electricity); (t) Santos Direct Pty Ltd (for gas, large customers only); (u) Sun Retail Pty Ltd (for electricity, large customers only); (v) Tarong Energy Corporation; (for electricity, large customers only); (w) TRUenergy Pty Ltd (for electricity and gas); and (x) TRUenergy Yallourn Pty Ltd (for electricity and gas, large customers only). 10 The energy retailers in Queensland relevantly are and have been: (a) AGL Sales (Queensland Electricity) Pty Ltd (for electricity and Origin Energy (Vic) Pty Ltd (for gas) and AGL Sales (Queensland) Pty Ltd) (for gas); (b) Australian Power and Gas Pty Ltd (for electricity and gas); (c) Click Energy Pty Ltd (for electricity); (d) Ergon Energy Queensland Pty Ltd (for electricity); (e) Lumo Energy (QLD) Pty Ltd (for electricity); (f) Momentum Energy (for electricity); (g) Origin Energy Electricity Limited (for electricity and gas); (h) Power Direct (for electricity); (i) Qenergy Pty Ltd (for electricity); (j) Sanctuary Energy Pty Ltd (for electricity); and (k) TRUenergy Pty Ltd (for electricity and gas). 11 The energy retailers in Victoria relevantly are and have been: (a) AGL Retail Energy Ltd (for electricity and gas); (b) Australian Power & Gas Company Limited (for electricity and gas); (c) Click Energy Pty Ltd (for electricity); (d) Country Energy Pty Ltd (for electricity and gas); (e) Dodo Power & Gas Pty Ltd (for electricity); (f) Energy Australia Pty Limited (for electricity and gas); (g) Lumo Energy Pty Ltd (for electricity and gas); (h) Momentum Energy (for electricity); (i) Neighbourhood Energy Pty Ltd (for electricity); (j) Origin Energy Electricity Limited (for electricity and Origin Energy (Vic) Pty Ltd (for gas); (k) Power Direct (for electricity); (l) Red Energy Pty Ltd (for electricity and gas); (m) Ipower Pty Ltd and Ipower 2 Pty Ltd trading as Simply Energy (for electricity and gas); and (n) TRUenergy Pty Ltd (for electricity and gas). Television Advertisements 12 From at least 31 January 2011 to at least 7 September 2011, Energy Watch caused to be broadcast, or authorised to be broadcast, on television in Melbourne and/or Brisbane: (a) the "Big Screen Advertisements" referred to in paragraph 13 below; in Melbourne between 27 June 2011 and 31 July 2011; (b) the "Door Knocker Advertisements" referred to in paragraph 18 below; (i) in Melbourne between 27 June 2011 and 2 August 2011; and (ii) in Brisbane between 27 June 2011 and 12 July 2011, (c) the "You Could Be Getting Ripped Off Advertisements" referred to in paragraph 23 below; and (i) in Melbourne between 21 February 2011 and 31 August 2011; and (ii) in Brisbane between 31 January 2011 and 11 July 2011, (d) the "Big Screen - Jack Watts Advertisement" referred to in paragraph 27 below in Melbourne between 25 August 2011 and 7 September 2011. Big Screen Advertisements 13 Energy Watch caused to be broadcast, or authorised to be broadcast, on television: (a) an advertisement of 45 seconds in duration: (i) in the form of the video file entitled "A.1 - Big Screen Advertisement (45 seconds)", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.1 of Annexure A to the FTS; (iii) on the television channels, the days and at the times identified in the schedule at Tab A.1 of Annexure A of the FTS; [the Representative Advertisement for Category 1] (b) an advertisement of 30 seconds in duration: (i) in the form of the video file entitled "A.2 - Big Screen Advertisement (30 seconds)", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.2 of Annexure A to the FTS; (iii) on the television channels, the days and at the times identified in the schedule at Tab A.2 of Annexure A of the FTS, (together, the Big Screen Advertisements). 14 The 45 seconds version of the Big Screen Advertisement contained: (a) the following audio statements: (i) Woman - "Guys, stop comparing size and start comparing electricity rates"; First man - "There's different rates?" Woman - "Yep, and that's why you need to check with the electricity umpire, Energy Watch. Australia's number 1 energy broker"; First Man - "They can reduce my bill?"; Woman - "Yep, Energy Watch is a free service that compares energy providers and helps over 150,000 people every year"; (ii) "We save the average home $386 and a massive $1,878 for businesses"; (b) the following visual statements: (i) "Compare and Save!"; (ii) "We save homes $386*"; (iii) "We save businesses $1,878*"; and (iv) the statement on the front of the t-shirt the woman is wearing: "EnergyWatch.com.au Making energy bills cheaper for you". 15 Further, the 45 Seconds version of the Big Screen Advertisement also contained the following visual statements: (a) at about 20 seconds until about 27 seconds: "Estimated calculated from average customer saving $386 over 2 years using Energy Watch recommended energy product. Savings will differ based on individual customer circumstances and energy usage. We do not compare all energy providers"; and (b) at about 35 seconds until the end of the advertisement: "Estimated calculated from the average business saving $1878 over 1 year & $386 residential use over 2 years using Energy Watch recommended energy product. Savings will differ based on business and residential circumstances and energy usage. We do not compare all energy providers." 16 The 30 second version of the Big Screen Advertisement contained: (a) the following audio statements: (i) Woman - "Guys, stop comparing size and start comparing electricity rates"; First man - "There's different rates?" Woman - "Yep, and that's why you need to check with the electricity umpire, Energy Watch. They compare energy providers and it's a free service"; (ii) "We save the average home $386 and a massive $1,878 for businesses"; (b) the following visual statements: (i) "Compare and Save!" (ii) "We save homes $386*"; and (iii) "We save businesses $1,878*". 17 Further, the 30 seconds version of the Big Screen Advertisement also contained the following visual statements: (a) at about 15 seconds until about 20 seconds: "Estimated calculated from average customer saving $386 over 2 years using Energy Watch recommended energy product. Savings will differ based on individual customer circumstances and energy usage. We do not compare all energy providers" (b) at about 20 seconds until the end of the advertisement: "Estimated calculated from the average business saving $1878 over 1 year & $386 residential use over 2 years using Energy Watch recommended energy product. Savings will differ based on business and residential circumstances and energy usage. We do not compare all energy providers." Door Knocker Advertisements 18 Energy Watch caused to be broadcast, or authorised to be broadcast, on television: (a) an advertisement of 45 seconds in duration: (i) in the form of the video file entitled "A.3 - Door Knocker Advertisement (45 seconds)", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.3 of Annexure A to the FTS; and (iii) on the television channels, the days and at the times identified in the schedule at Tab A.3 of Annexure A of the FTS; [the Representative Advertisement for Category 2(b)] (b) an advertisement of 30 seconds in duration: (i) in the form of the video file entitled "A.4 - Door Knocker Advertisement (30 seconds)", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.4 of Annexure A to the FTS; and (iii) on the television channels, the days and at the times identified in the schedule at Tab A.4 of Annexure A of the FTS, [the Representative Advertisement for Category 2(a)] (together, the Door Knocker Advertisements). 19 The 45 seconds version of the Door Knocker Advertisement contained: (a) the following audio statements: (i) Woman - "What's going on?" Woman umpire - "He was about to sign up without shopping around. I know it sounds like a good deal but check first with the electricity umpire Energy Watch, it's a free service that compares energy providers and helps over 150,000 people every year. So it makes sense to check first, doesn't it?"; (ii) "We save the average home $386 and a massive $1,878 for businesses."; (b) the following visual statements: (i) "Compare and Save!"; (ii) ""We save homes $386*"; and (iii) "We save businesses $1,878*". 20 Further, the 45 seconds version of the Door Knocker Advertisement also contained the following visual statements: (a) the statements referred to in paragraph 17(a) above from about 20 seconds to 27 seconds; and (b) the statements referred to in paragraph 17(b) above from about 35 seconds until the end of the advertisement. 21 The 30 seconds version of the Door Knocker Advertisement contained: (a) the following audio statements: (i) Woman - "What's going on?" Woman umpire - "He was about to sign up without shopping around. I know it sounds like a good deal but check first with the electricity umpire Energy Watch, it's a free service"; (ii) "We save the average home $386 and a massive $1,878 for businesses."; (b) the following visual statements: (i) "Compare and Save!"; (ii) "We save homes $386*"; and (iii) "We save businesses $1,878*". 22 Further, the 30 seconds version of the Door Knocker Advertisement also contained the following visual statements: (a) the statements extracted in paragraph 17(a) above from about 19 seconds to 23 seconds; and (b) the statements extracted in paragraph 17(b) above from about 23 seconds until the end of the advertisement. You Could Be Getting Ripped Off Advertisements 23 Energy Watch caused to be broadcast, or authorised to be broadcast, on television: (a) an advertisement of 30 seconds in duration: (i) in the form of the video file entitled "A.5 - You Could Be Getting Ripped Off Version 1", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.5 of Annexure A to the FTS; and (iii) on the television channels, the days and at the times identified in the schedule at Tab A.5 of Annexure A of the FTS, (the You Could Be Getting Ripped Off Advertisement Version 1); [the Representative Advertisement for Category 3] (b) an advertisement of 30 seconds in duration: (i) in the form of the video file entitled "A.6 - You Could Be Getting Ripped Off Version 2", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) in the form on the disc contained in Tab A.6 of Annexure A to the FTS; (iii) with the words in the transcript set out in Tab A.6 of Annexure A to the FTS; and (iv) on the television channels, the days and at the times identified in the schedule at Tab A.6 of Annexure A of the FTS, (the You Could Be Getting Ripped Off Advertisement Version 2); and (c) an advertisement of 45 seconds in duration: (i) in the form of the video file entitled "A.7 - You Could Be Getting Ripped Off Version 3", located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (ii) with the words in the transcript set out in Tab A.7 of Annexure A to the FTS; and (iii) on the television channels, the days and at the times identified in the amended schedule at Tab A.7 of Annexure A of the FTS, (the You Could Be Getting Ripped Off Advertisement Version 3). [the Representative Advertisement for Category 4] 24 The You Could Be Getting Ripped Off Advertisement Version 1 contained: (a) the following audio statements: (i) "They compared our rates, found us a much better deal"; (ii) "Energywatch.com.au can compare your rates and find you a better deal"; (b) the following visual statement: "Compare your rates". 25 Each of the You Could Be Getting Ripped Off Advertisement Version 2 and the You Could be Getting Ripped Off Advertisement Version 3 contained: (a) the following audio statement: "On average, we save customers $386"; (b) the following visual statement: "We save our customers on average $386*". 26 Further, the You Could Be Getting Ripped Off Advertisement Version 2 Advertisement and the You Could be Getting Ripped Off Advertisement Version 3 also contained the following visual statement: "Individual savings may vary. Average saving based on customer supplied data." This was displayed: (a) in the You Could Be Getting Ripped Off Advertisement Version 2, from about 19 seconds to 24 seconds; and (b) in the You Could Be Getting Ripped Off Advertisement Version 3, from about 30 seconds to 33 seconds. Big Screen - Jack Watts Advertisement 27 Energy Watch caused to be broadcast, or authorised to be broadcast, on television, an advertisement of 45 seconds in duration: (a) in the form of the video entitled "A.8 Big Screen - Jack Watts Advertisement" located in the Disc folder marked Annexure A - Television Advertisements, on the Disc containing the Annexures to the FTS; (b) with the words in the transcript set out at Tab A.8 of Annexure A to the FTS; and (c) on the television channels, the days and at the times identified in the schedule at Tab A.8 of Annexure A of the FTS. [the Representative Advertisement for Category 5] 28 The Big Screen - Jack Watts Advertisement contained (a) the following audio statement: "they save the average home $386 and a massive $1,878 for businesses"; (a) the following visual statements: (i) "Compare and save"; and (ii) "Save $386!" (on Jack Watts' t-shirt). 29 Further, the Big Screen - Jack Watts Advertisement contained the following visual statement from about 26 seconds until the end of the advertisement: "Estimation calculated from the average business saving $1878 over 1 year & $386 residential use over 2 years using Energy Watch recommended energy product. Savings will differ based on business and residential circumstances and energy usage. We do not compare all energy providers. To receive the free football you must change energy providers using Energy Watch" Radio Advertisements 30 From at least 22 June 2011 to 3 August 2011, Energy Watch caused to be broadcast, or authorised to be broadcast, nine radio advertisements in Queensland promoting the services of Energy Watch in the form of the audio files in the folder marked "Radio Advertisements", located in the Disc folder marked "Annexure B - Radio Advertisements," on the Disc containing the Annexures to the FTS, (a) being: (i) the Do We Starve Ourselves to Pay the Electricity Bills? (Script Change) Radio Advertisement; (ii) the In Just 3 Days (30 seconds) Radio Advertisement; (iii) the Do We Starve Ourselves to Pay the Electricity Bills? Radio Advertisement; (iv) the In Just 3 Days (45 seconds) Radio Advertisement; [the Representative Advertisement for Category 6] (v) the In Just One Day the Energy Price Rise Will Hit Radio Advertisement; (vi) the In Just 2 Days the Energy Price Rice Will Hit Radio Advertisement; (vii) the In Just One Day the Energy Price Rise Will Hit (Long Version) Radio Advertisement; (viii) The Electricity Price Rise Hit on July 1 Radio Advertisement; and (ix) The Electricity Price Rise Hit on July 1 (Long Version) Radio Advertisement, (b) with the words in the transcripts set out in Tabs B.1 - B.9 respectively of Annexure B to the FTS; and (c) on the radio channels, the days and at the times identified in the schedules at Tabs B.1 - B.9 of Annexure B to the FTS. Collectively, the nine radio advertisements identified in (i) to (ix) of paragraph (a) above are referred to as the Radio Advertisements. 31 Each of the Radio Advertisements contained the following statements by Mr Polis as set out in the transcripts located at tabs B.1 - B.9 to Annexure B to the FTS: (a) "EnergyWatch.com.au compares energy providers" which is a statement said by Mr Polis in two of the Radio Advertisements being: (i) the Do We Starve Ourselves to Pay the Electricity Bills? (Script Change) Radio Advertisement; and (ii) the Do We Starve Ourselves to Pay the Electricity Bills? Radio Advertisement); (b) "EnergyWatch compares energy providers, rates and plans" which is a statement said by Mr Polis in one of the Radio Advertisements being The Electricity Price Rise Hit on July 1 Radio Advertisement; (c) "We compare energy providers, rates and plans to/and find you a better deal" which is a statement said by Mr Polis in five of the Radio Advertisements being: (i) the In Just 3 Days (30 seconds) Radio Advertisement; (ii) the In Just 3 Days (45 seconds) Radio Advertisement; (iii) the In Just One Day the Energy Price Rise Will Hit Radio Advertisement; (iv) the In Just One Day the Energy Price Rise Will Hit (Long Version) Radio Advertisement); and (v) the In Just 2 Days the Energy Price Rice Will Hit Radio Advertisement); and (d) "We compare energy providers, rates and plans" which is a statement said by Mr Polis in one of the Radio Advertisements being "The Electricity Price Rise Hit on July 1 (Long Version) Radio Advertisement. 32 Each of the Radio Advertisements contained the following statements by Mr Polis: (a) "The average family saves $386 and the average business saves $1,878" which is a statement said by Mr Polis in seven of the Radio Advertisements being: (i) the Do We Starve Ourselves to Pay the Electricity Bills? (Script Change) Radio Advertisement; (ii) the In Just 3 Days (30 seconds) Radio Advertisement; (iii) the Do We Starve Ourselves to Pay the Electricity Bills? Radio Advertisement; (iv) the In Just 3 Days (45 seconds) Radio Advertisement; (v) the In Just One Day the Energy Price Rise Will Hit Radio Advertisement; (vi) the In Just One Day the Energy Price Rise Will Hit (Long Version) Radio Advertisement; and (vii) the In Just 2 Days the Energy Price Rice Will Hit Radio Advertisement; and (b) "The average family saves $386 and the average business saves a massive $1,878" which is a statement said by Mr Polis in two of the Radio Advertisements being: (i) The Electricity Price Rise Hit on July 1 Radio Advertisement; and (ii) The Electricity Price Rise Hit on July 1 (Long Version) Radio Advertisement. Print Advertisements Newspaper Advertisements 33 Energy Watch caused to be published, or authorised to be published, in Victoria, newspaper advertisements promoting the services of Energy Watch, being: (a) a form of advertisement in the "BusinessDay" section of The Saturday Age on 2 July 2011 (page 13), a copy of which is contained in Tab C.1 of Annexure C to the FTS; (b) a form of advertisement in the "BusinessDay" section of The Age on 5 July 2011 (page 3), a copy of which is contained in Tab C.2 of Annexure C to the FTS; [the Representative Advertisement for Category 8] (c) a form of advertisement published in: (i) The Saturday Age on 9 July 2011 (page 14 of the "BusinessDay" section); [the Representative Advertisement for Category 7(a)] (ii) The Age on 26 July 2011 (page 5); (iii) The Age on 2 August 2011 (page 7 of the "BusinessDay" section); (iv) The Age on 16 August 2011 (page 5 of the "BusinessDay" section); and (v) The Age on 23 August 2011 (page 5 of the "BusinessDay" section), copies of which are contained in Tab C.3 of Annexure C to the FTS; (d) a form of advertisement published in: (i) The Age on 13 July 2011 (front page); (ii) The Saturday Age on 16 July 2011 (page 4 of the "BusinessDay" section); [the Representative Advertisement for Category 7(b)] (iii) The Age on 18 July 2011 (front page of the "BusinessDay" section); (iv) The Age on 20 July 2011 (front page); (v) The Age on 25 July 2011 (front page of the "BusinessDay" section); (vi) The Saturday Age on 30 July 2011 (front page); (vii) The Age on 3 August 2011 (front page); (viii) The Saturday Age on 6 August 2011 (front page of the "Sport" section); (ix) The Age on 8 August 2011 (page 3 of the "BusinessDay" section); (x) The Age on 10 August 2011 (front page); (xi) The Saturday Age on 13 August 2011 (front page of the "Sport" section); (xii) The Age on 15 August 2011 (page 3 of the "BusinessDay" section); (xiii) The Age on 17 August 2011 (front page); (xiv) The Saturday Age on 20 August 2011 (front page of the "Sport" section); and (xv) The Age on 26 August 2011 (foldout around the "BusinessDay" Section), [the Representative Advertisement for Category 9] copies of which are contained in Tab C.4 of Annexure C to the FTS; (e) a form of advertisement published in: (i) the Herald Sun on 27 August 2011 (front page of the "Sport" section); (ii) The Saturday Age on 27 August 2011 (front page); [the Representative Advertisement for Category 10] (iii) the Sunday Herald Sun on 28 August 2011 (front page of the "Sport" section), copies of which are contained in Tab C.5 of Annexure C to the FTS; and (f) a form of advertisement published in: (i) The Saturday Age on 27 August 2011 (page 28 and page 11 of "Sport" section); [the Representative Advertisement for Category 7(c)] (ii) the Sunday Herald Sun on 28 August 2011 (page 49); (iii) The Age on 29 August 2011 (page 3 of the "BusinessDay" section); and (iv) The Age on 30 August 2011 (front page and page 5 of the "BusinessDay" section), copies of which are contained in Tab C.6 of Annexure C to the FTS. Collectively, (a) through (f) above are referred to as the Newspaper Advertisements. 34 The advertisement in The Age on 5 July 2011 referred to in paragraph 33(b) above contained the following statements: (a) "We help homes, business and corporations save on energy bills"; (b) "Compare and Save!"; and (c) "We compare your current electricity rates and source you a better deal!" 35 The advertisement in The Age on 26 August 2011 referred to in paragraph 33(d)(xv) above, contained the following statements: (a) on the front page: (i) "Compare energy providers and Save $386*"; and (ii) "Compare your energy provider, get a better deal and a free footy"; (b) in the middle two pages as follows: (i) "Compare energy providers and get a better deal on your electricity from energywatch.com.au..."; (ii) "Compare and Save!" (iii) "Households average saving $386*"; and (iv) "Business average saving $1,878*". 36 Further, the advertisement in The Age on 26 August 2011 referred to in paragraph 33(d)(xv) above contained the following statement: "www.energywatch.com.au/savingsdisclaimer" 37 Each of the Newspaper Advertisements except for the advertisements referred to at paragraphs 33(d)(xv) and 33(e) above contained the following statements: (a) "Residential average saving $386*"; and (b) "Business average saving $1,878*". 38 The Newspaper Advertisements referred to in sub-paragraphs 33(a), 33(b) and 33(c) above also contained further content in the form of a case study of a residential energy customer which referred to quarterly savings over a period of 2 years. 39 Each of the advertisements referred to in paragraph 33(e) contained the following statements: (a) the statement "Save $386*" in the advertisements published in: (i) the Herald Sun on 27 August 2011 (front page of the "Sport" section); and (ii) the Sunday Herald Sun on 28 August 2011 (front page of the "Sport" section); and (b) the statement "Compare and Save $386*" in the advertisement published in The Saturday Age on 27 August 2011 (front page). 40 The newspaper advertisements referred to in paragraph 33(f) above also contained the following statement: "www.energywatch.com.au/savingsdisclaimer" AFL Record Advertisement 41 Energy Watch caused to be published, or authorised to be published, in Victoria, an advertisement promoting the services of Energy Watch, as a wrap around to the AFL Record for the period 26 August 2011 to 28 August 2011, a copy of which is contained in Tab C.7 of Annexure C to the FTS. [the Representative Advertisement for Category 7(d)] 42 The AFL Record with the wrap around advertisement: (a) was only distributed in Victoria; and (b) had a circulation of approximately 28,000 copies. 43 This advertisement contained the following statements: (a) "Save $386*"; (b) "Households average saving $386*"; and (c) "Business average saving $1,878*". 44 This advertisement also contained the following statement: "Terms & Conditions at energywatch.com.au/freefooty" Woman's Day Advertisement 45 Energy Watch caused to be published, or authorised to be published, an advertisement promoting the services of Energy Watch in the 27 July 2011 issue of the Woman's Day magazine, a copy of which is contained in Tab C.8 of Annexure C to the FTS. [the Representative Advertisement for Category 11] 46 The Woman's Day advertisement contained the following statements: (a) "Compare your energy provider and save $386*!"; and (b) "Households average saving $386*". 47 The Women's Day advertisement also contained the following statement: "DISCLAIMER: Energy Watch operates in all deregulated electricity markets, NSW, Vic, SA and South East QLD. The price rise refers to NSW only. However increases are being felt in all states. $386 based on average customer savings over 2 years" Websites 48 For at least the period from 2 June 2011 to 7 June 2011, Energy Watch displayed, or caused to be displayed, on the website http://www.energywatch.com.au (the Energy Watch Website) of which it was the domain name registrant, content in the form contained in the webpages at Tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 1". [the Representative Advertisement for Category 12(a)] 49 The Energy Watch Website Version 1 contained the following statements: (a) "There are around 20 active energy retailers in Australia to choose from; Energy Watch is here to help you make an informed choice on which one fits your needs best". (b) On average we save customers $386*!" 50 The Energy Watch Website Version 1 also contained the following statements: (a) on the page of the Energy Watch Website Version 1 at www.energywatch.com.au/residential: "Energy Watch is a fast and easy way to get a better deal on your electricity & gas supply. We have researched electrically and gas retailers from around Australia, and sourced better energy deals and products for our customers. Simply submit your details and we will call you at a specified time, or call us now and get straight through to a real person. With the price of electricity and gas constantly increasing in every state, the potential savings for you or your business could be huge". (b) on the page of the Energy Watch Website Version 1 at www.energywatch.com.au/business: "Finding the right electricity and gas provider for your business is a time consuming and confusing task for most The Energy Watch Business team will ensure you get the right electricity and gas provider for your business. Unlike most energy brokers, we don't charge any upfront or additional fees to small and medium sized companies. We help all types of businesses save money on their power, from the small corner store, to large corporations with multiple accounts. In a short conversation, our business energy consultants will be able to save you money!" 51 For at least the period from 15 June 2011 to 22 June 2011, Energy Watch displayed, or caused to be displayed, on the Energy Watch Website content in the form also contained in Tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 2". [the Representative Advertisement for Category 12(b)] 52 The Energy Watch Website Version 2 contained the following statements: (a) "There are around 20 active energy retailers in Australia to choose from; Energy Watch is here to help you make an informed choice on which one fits your needs best". (b) "Save on average Homes $386 Business $1878!" 53 The Energy Watch Website Version 2 also contained: (a) on the page of the Energy Watch Website Version 2 at www.energywatch.com.au/residential, the statement set out at paragraph 50(a) above; (b) on the page of the Energy Watch Website Version 2 at www.energywatch.com.au/business, the statement set out at paragraph 50(b) above. 54 For the period from 22 June 2011 until a date presently unknown, but on or before 27 July 2011, Energy Watch displayed, or caused to be displayed, on the Energy Watch Website content in the form also contained in tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 3". 55 The Energy Watch Website Version 3 contained the following statements: (a) "Compare and Save!"; (b) "We help over 150,000 people every year compare energy providers"; and (c) "we compare energy providers". (d) "Save on average Homes $386 Business $1,878". 56 The Energy Watch Website Version 3 also contained the following statements: (a) on the home page: "Energy Watch Disclaimer: Energy Watch does not work with all suppliers, we recommend companies who provide our customers with competitive rates. Estimation calculated from the average business saving $1878 over 1 year & $386 residential use over 2 years using Energy Watch recommended products. Savings will differ based on business & residential circumstances and energy usage. Energy Watch cannot guarantee the best rate as we do not compare all energy providers." (b) on the page of the Energy Watch Website Version 3 at www.energywatch.com.au/residential, the statement set out at paragraph 50(a) above; (c) on the page of the Energy Watch Website Version 3 at www.energywatch.com.au/business, the statement set out at paragraph 50(b) above. 57 From at least 27 July 2011 until a date presently unknown, but on or before 25 August 2011, Energy Watch displayed, or caused to be displayed, on the Energy Watch Website content in the form also contained in Tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 4". [the Representative Advertisement for Category 13(a)] 58 The Energy Watch Website Version 4 contained the following statements: (a) "Compare and Save!"; (b) "We help over 150,000 people every year compare energy providers"; (c) "we compare energy providers"; and (d) "Save on average Homes $386 Business $1,878". 59 The Energy Watch Website Version 4 also contained, the following statements: (a) on the homepage, the statement set out at 56(a) above; (b) on the page of the Energy Watch Website Version 4 at www.energywatch.com.au/residential, the statement the statement set out at paragraph 50(a) above; and (c) on the page of the Energy Watch Website Version 4 at www.energywatch.com.au/business, the statement set out at paragraph 50(b) above. 60 For the period from a date presently unknown, but prior to 25 August 2011 until a date presently unknown, but prior to 5 September 2011, Energy Watch displayed, or caused to be displayed, on the Energy Watch Website content in the form also contained in Tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 5". [the Representative Advertisement for Category 13(b)] 61 Further, for the period from a date presently unknown, but from at least 5 September 2011, Energy Watch displayed, or caused to be displayed, on the Energy Watch Website content in the form also contained in Tab D.1 of Annexure D of the FTS and marked "Energy Watch Website Version 5A". 62 The Energy Watch Website Version 5 and the Energy Watch Website Version 5A each contained the following statements: (a) "Compare and Save!" (b) "We help over 150,000 people every year compare energy providers"; and (c) "we compare energy providers"; and (d) "Save on average Homes $386* Business $1,878*". 63 The Energy Watch Website Version 5 and the Energy Watch Website Version 5A also contained the following statements: (a) on the home page: Energy Watch Disclaimer: "The Average saving forecast is an Australian national average amount of customers using the Energy Watch recommended electricity/gas energy product in each state or Territory compared to the Australian national average of customers who remain on the default electricity/gas energy rate over a period of 2 years. Savings may differ, for full details refer to www.energywatch.com.au/savingsdisclaimer. Energy watch does not work with all suppliers, we recommend companies who supply our customers with competitive rates not work with all suppliers. Energy Watch does not guarantee the best rate as we do not compare all providers." (b) on the page at www.energywatch.com.au/savingsdisclaimer: "Households average saving $386 The $386 average saving forecast is based on our national average of a residential customer using the Energy Watch recommended energy product compared to the customer remaining on a default energy rate over a period of 2 years. Savings may differ based on individual customer circumstances. Energy Watch does not compare all energy providers." "Business average saving $1,878 Average saving forecast is an Australian national average amount of customers using the Energy Watch recommended electricity/gas energy product in each State or Territory compared to the Australian national average of customers who remain on the default electricity/gas energy rate in each state or Territory over a period of 2 years with an average annual consumption of 40Mwh. Energy costs charges and regulations vary between states. Savings may differ from the national average based on the customers circumstances and location in Australia indicative average annual savings by state for electricity/gas energy are NSW $754, Vic $1,040, QLD $1045." (c) on the page at www.energywatch.com.au/residential, the statement set out at paragraph 50(a) above; (d) on the page at www.energywatch.com.au/business, the statement set out at paragraph 50(b) above. 64 For the period from 26 June 2011 until a date presently unknown, but prior to 14 July 2011, Energy Watch authorised, caused or approved to be displayed on the following websites (for each of which, it was the domain name registrant): (a) http://www.electricityrates.com.au (the Electricity Rates Website); (b) http://www.gasconnection.com.au (the Gas Connection Website); (c) http://www.connectmypower.com.au (the Connect My Power Website); (d) http://www.electricitygas.com.au (the Electricity Gas Website); and (e) http://electricitycompanies.com.au (the Electricity Companies Website), content in the form contained in the webpages at Tab D.2 of Annexure D of the FTS (together the Associated Energy Watch Websites). 65 The Associated Energy Watch Websites each contained the following statement: "Energy Watch has compared electricity suppliers across the country to find you the best deals on your electricity prices". 66 The Associated Energy Watch Websites each also contained the following statement: "The cheapest electricity company is not always the best fit for the consumer. We also assess the customer service the type of energy and environmental attitude of these companies in our evaluation." 67 For the period from at least 2 June 2011 until on or about 14 July 2011, Energy Watch, authorised, caused or approved Polis Australia to display on the website http://www.connectpower.com.au (the Connect Power Website), content in the form contained in the webpages at Tab D.3 of Annexure D of the FTS and marked the "Polis Australia Website Version 1". [the first of two Representative Advertisements for Category 14] 68 The Polis Australia Website Version 1 contained the following statement: "Energy Watch has compared electricity suppliers across the country to find you the best deals on your electricity prices". 69 The Polis Australia Website Version 1 also contained the following statement: "The cheapest electricity company is not always the best fit for the consumer. We also assess the customer service the type of energy and environmental attitude of these companies in our evaluation." 70 Further, for the period from at least 26 June 2011 until on or about 14 July 2011, Energy Watch, authorised, caused or approved Polis Australia to display on the following websites: (a) http://www.victoriaenergy.com.au (the Victoria Energy Website); (b) http://electricitycompany.com.au (the Electricity Company Website); (c) http://electricitysupply.com.au (the Electricity Supply Website); (d) http://energy-companies.com.au (the Energy Companies Website); and (e) http://businessenergywatch.com.au (the Business Energy Watch Website), [the second of two Representative Advertisements for Category 14] content in the form contained in the webpages at Tab D.3 of Annexure D of the FTS (the Polis Australia Websites Version 2). 71 The Polis Australia Websites Version 2 contained the following statement: "Energy Watch has compared electricity suppliers across the country to find you the best deals on your electricity prices". 72 The Polis Australia Websites Version 2 each also contained the following statement: "The cheapest electricity company is not always the best fit for the consumer. We also assess the customer service the type of energy and environmental attitude of these companies in our evaluation." 73 Polis Australia is the registrant of the websites listed at paragraphs 67 and 70 above (collectively, the Polis Australia Websites). 74 From on a date presently unknown, but after 14 July 2011, to the date when this proceeding was issued, the Polis Australia Websites (with the exception of the Business Energy Watch Website), automatically diverted to the Energy Watch Website. Billboard Advertisements 75 At all material times, Energy Watch caused, authorised or approved, advertisements promoting the services of Energy Watch to be placed on billboards promoting the services of Energy Watch, being: (a) for the period since at least 27 July 2011 until at least 5 September 2011, at the corner of King and Flinders Streets, Melbourne, Victoria (the First Energy Watch Billboard), photographs of which are located at Tab E.1 of Annexure E to the FTS; [the Representative Advertisement for Category 15] (b) for the period since at least 27 July 2011 until a date presently unknown, but prior to 19 August 2011, at 152 Elizabeth Street, Melbourne, Victoria (the Second Energy Watch Billboard), photographs of which are located at E.2 of Annexure E to the FTS; [the Representative Advertisement for Category 17] (c) for the period since at least 18 August 2011 to at least 5 September 2011 at the start of the South Eastern Freeway in Melbourne, Victoria (the Third Energy Watch Billboard), photographs of which are located at E.3 of Annexure E to the FTS; (d) advertisements in the same form as the Third Energy Watch Billboard, located: (i) for the period since at least 18 August 2011 to at least 5 September 2011 between Brunswick and Moreland Roads on the Western Link in Melbourne, Victoria (the Fourth Energy Watch Billboard); (ii) for the period since at least 18 August 2011 to at least 5 September 2011 , near the off ramp at Dynon Road, West Melbourne on the Western Link in Melbourne, Victoria (the Fifth Energy Watch Billboard); and (iii) for the period since at least 4 August 2011 until a date presently unknown, but prior to 19 August 2011, on the corner of Nicholson Street and Alexander Parade, Fitzroy, Victoria (the Sixth Energy Watch Billboard), photographs of each of which are contained in Tab E.4 of Annexure E to the FTS; (e) for the period since at least 17 August 2011 until at least 5 September 2011, at 131 Johnston Street, Fitzroy, Victoria (the Seventh Energy Watch Billboard), photographs of which are located at Tab E.5 of Annexure E to the FTS; [the Representative Advertisement for Category 16] (f) advertisements in the same form as the Seventh Energy Watch Billboard from: (i) for the period since at least 18 August 2011 to at least 5 September 2011, near the on-ramp at Racecourse Road, North Melbourne on the Western Link in Melbourne, Victoria (the Eighth Energy Watch Billboard); (ii) for the period since at least 23 August 2011 until at least 5 September 2011, at the corner of Flemington Road and Harker Street, North Melbourne, Victoria (the Ninth Energy Watch Billboard); and (iii) for the period since at least 23 August 2011 until at least 5 September 2011, at the corner of Swanston and Latrobe Streets Melbourne, Victoria (the Tenth Energy Watch Billboard), photographs of each of which are located at Tab E.6 of Annexure E to the FTS; and (g) for the period since at least 30 August 2011 until at least 5 September 2011, at the corner of Punt and Toorak Roads , South Yarra, Victoria (the Eleventh Energy Watch Billboard), a photograph of which is located at Tab E.7 of Annexure E to the FTS. 76 The First Energy Watch Billboard contained the following statement: "Compare and Save $386*!" 77 The Second, Third, Fourth, Fifth and Sixth Energy Watch Billboards each contained the following statements: (a) "Compare and Save!" Homes $386* Business $1,878*"; and (b) "Making energy bills cheaper for you". 78 The Seventh, Eighth, Ninth, Tenth and Eleventh Energy Watch Billboards each contained the following statement: "Compare and Save $386*!". 79 Further, the First and Seventh Energy Watch Billboards also contained the following statement: "Disclaimer information. Refer to website." 80 Further, the Second, Third and Fourth Energy Watch Billboards also contained the following statement: "*Refer to Website" MCG Advertisements- Australian Football League advertising 81 Energy Watch caused, authorised or approved for advertisements to be displayed on a scoreboard at the MCG in Melbourne, Victoria during AFL matches on: (a) 6 August 2011 between Carlton and Melbourne, photographs of which are located at Tab F.1 in Annexure F to the FTS; [the Representative Advertisement for Category 18] (b) 21 August 2011 between Richmond and Melbourne, photographs of which are located at Tab F.2 in Annexure F to the FTS; and (c) 20 August 2011 between Collingwood and Brisbane, photographs of which are located at Tab F.3 in Annexure F to the FTS, Collectively, (a) through (c) above are referred to as the MCG Advertisements. 82 The parties agree that each of the MCG Advertisements was displayed: (a) on one scoreboard; (b) on consecutive rotation: (i) with two other unrelated advertisements; and (ii) with each advertisement displayed for 30 seconds out of every 90 seconds of time during a period of approximately 5 hours before, during and after each AFL match; and (c) for 33% of the time during each 5 hour period, and was therefore displayed for a total of 100 minutes. 83 Each of the MCG Advertisements contained the following statement: "Save $386!". Misrepresentations Residential Savings Representations 84 The: (a) Past Residential Savings Representation (defined in paragraph 86(b) in Part B below); (b) Future Residential Savings (defined in paragraph 86(d) in Part B below); and the (c) Future $386 Savings Representation (defined in paragraph 86(f) in Part B below), if made by either or both of the Respondents was not correct, because at all material times, the basis of Energy Watch's calculation of $386: (d) was a quarterly saving amount multiplied by eight to estimate a saving over a two year period and not over a 12 month period; (e) used an inadequate sample of residential customers and time period to substantiate the Past Residential Savings Representation in that it used a sample: (i) totalling only 133 residential customers across Victoria, New South Wales and Queensland constituted by: (A) five customers from New South Wales; (B) nine customers from Queensland; and (C) 119 customers from Victoria; and (ii) based on only nine days during the period January 2010 to October 2010 as follows: (A) three days for New South Wales residential customers, namely 4 August 2010, 28 September 2010 and 29 September 2010; (B) four days for Queensland residential customers, namely 28 September 2010, 1 October 2010, 2 October 2010 and 4 October 2010; and (C) nine days for Victorian residential customers, namely 10 January 2010, 10 April 2010, 4 August 2010, 28 September 2010, 29 September 2010, 30 September 2010, 1 October 2010, 2 October 2010 and 4 October 2010. Business Savings Representations 85 The: (a) Past Business Savings Representation (defined in paragraph 86(c) in Part B below); and (b) Future Business Savings Representation, (defined in paragraph 86(e) in Part B below), if made by either or both of the Respondents was not correct, because at all material times, the basis of Energy Watch's calculation of $1,878: (c) used an inadequate sample of business customers and time period to substantiate the $1,878 savings in that it used a sample: (i) totalling only 328 business customers across New South Wales, Queensland, Victoria and South Australia constituted by: (A) 19 customers from New South Wales; (B) one customer from Queensland; (C) 306 customers from Victoria; and (D) two customers from South Australia; and (ii) based on only 40 days for the months of December 2010, January 2011 and February 2011 as follows: (A) eight days for New South Wales business customers, namely 2 December 2010, 8 December 2010, 16 December 2010, 11 January 2011, 1 February 2011, 4 February 2011, 10 February 2011 and 15 February 2011; (B) one day for Queensland business customers, namely 16 December 2010; (C) the entire 40 days for Victorian business customers; and (D) one day for South Australian business customers, namely 27 January 2011; (d) was, since at least 25 August 2011, over a two year period and not over a 12 month period. Part B: Matters on which the Parties are in Dispute. The Representations 86 The ACCC alleges and the Respondents deny that Energy Watch and Mr Polis made representations to the following effect: (a) Energy Watch compares for: (i) a person with an existing energy connection, the person's existing energy rates with the rates of all or many of the other energy retailers available in the person's area; and/or (ii) person who needs a new energy connection, the rates of all or many of the energy retailers available in the person's area, (the Comparison Representation); (b) Energy Watch has an adequate basis to say that it has saved residential customers, further or alternatively average residential customers, who changed to an energy retailer to whom they were introduced by Energy Watch, $386 or an average of $386 from their energy supply bills in the 12 months following the change of energy retailer (the Past Residential Savings Representation); (c) Energy Watch has an adequate basis to say that it has saved business customers, further or alternatively average business customers, who changed to an energy retailer to whom they were introduced by Energy Watch, $1,878 or an average of $1,878 from their energy supply bills in the 12 months following the change of energy retailer (the Past Business Savings Representation); (d) Energy Watch will save residential customers, further or alternatively average residential customers, who change to an energy retailer to whom they are introduced by Energy Watch, $386 or an average of $386 from their energy supply bills in the 12 months following the change of energy retailer (the Future Residential Savings Representation); (e) Energy Watch will save business customers, further or alternatively average business customers, who change to an energy retailer to whom they are introduced by Energy Watch, $1,878 or an average of $1,878 from their energy supply bills in the 12 months following the change of energy retailer (the Future Business Savings Representation); and (f) Energy Watch will save a person who changes to an energy retailer to whom they were introduced by Energy Watch: (i) $386 from their electricity bills; and/or (ii) on average, $386 from their electricity bills; and/or (iii) $386 by their energy broker services, in the 12 months following the use of Energy Watch's services (the Future $386 Savings Representation). Collectively, (a) to (f) are referred to as the Representations. Whether the Advertisements made the Representations Television Advertisements (referred to at paragraphs 12 to 28 above) 87 With respect to the Television Advertisements, the ACCC alleges and Energy Watch denies that: (a) by each of the: (i) 45 seconds version of the Big Screen Advertisement; [the Representative Advertisement for Category 1] (ii) 30 seconds version of the Big Screen Advertisement; (iii) 45 seconds version of the Door Knocker Advertisement; and [the Representative Advertisement for Category 2(b)] (iv) 30 seconds version of the Door Knocker Advertisement, [the Representative Advertisement for Category 2(a)] Energy Watch made: (v) the Comparison Representation; (vi) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (vii) the Future Residential Savings Representation and the Future Business Savings Representation. (b) by the You Could Be Getting Ripped Off Advertisement Version 1, Energy Watch made the Comparison Representation; [the Representative Advertisement for Category 3] (c) by the You Could Be Getting Ripped Off Advertisement Version 2 and the You Could Be Getting Ripped Off Advertisement Version 3, Energy Watch made the Future $386 Savings Representation. [the You Could Be Getting Ripped Off Advertisement Version 3 is the Representative Advertisement for Category 4] (d) by the Big Screen - Jack Watts Advertisement, Energy Watch made: (i) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (ii) the Future Residential Savings Representation and the Future Business Savings Representation. [the Representative Advertisement for Category 5] Radio Advertisements (referred to at paragraphs 30 to 32 above) 88 With respect to the Radio Advertisements, the ACCC alleges and Energy Watch and Mr Polis each deny that Energy Watch and Mr Polis made: (a) the Comparison Representation; (b) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (c) the Future Residential Savings Representation and the Future Business Savings Representation. [the Representative Advertisement for Category 6] Newspaper Advertisements (referred to at paragraphs 33 to 40 above) 89 The ACCC alleges and Energy Watch denies that Energy Watch made the Comparison Representation by: (a) the advertisement in The Age on 5 July 2011 referred to at paragraph 33(b) above; [the Representative Advertisement for Category 8] (b) the advertisement in The Age on 26 August 2011 referred to in paragraph 33(d)(xv) above. [the Representative Advertisement for Category 9] 90 The ACCC alleges and Energy Watch denies that Energy Watch made the: (a) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (b) the Future Residential Savings Representation and the Future Business Savings Representation. by each of the Newspaper Advertisements except for the advertisements referred to in paragraph 33(e) above. [see the Representative Advertisements for Categories 7(a)-(c)] 91 the ACCC alleges and Energy Watch denies that Energy Watch made the Future $386 Representation by each of the advertisements referred to in paragraph 33(e) above. [see the Representative Advertisement for Category 10] AFL Record Advertisement (referred to at paragraphs 41 to 43 above) 92 With respect to the wrap around advertisement to the AFL Record, the ACCC alleges and Energy Watch denies that Energy Watch made: (a) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (b) the Future Residential Savings Representation and the Future Business Savings Representation. [the Representative Advertisement for Category 7(d)] Woman's Day Advertisement (referred to at paragraphs 45 to 47 above) 93 With respect to the Women's Day advertisement, the ACCC alleges and Energy Watch denies that Energy Watch made: (a) the Past Residential Savings Representation and, further or alternatively, (b) the Future Residential Savings Representation. [the Representative Advertisement for Category 11] Websites (referred to at paragraphs 48 to 74 above) 94 With respect to the websites, the ACCC alleges and Energy Watch denies that Energy Watch made: (a) the Comparison Representation, by: (i) the Energy Watch Website Version 1, 2, 3, 4, 5 and 5A; (ii) the Associated Energy Watch Websites; and (iii) authorising, causing or approving the Polis Australia Websites Version 1 and the Polis Australia Websites Version 2; (b) the Past Residential Savings Representation and the Past Business Savings Representation, the Future Residential Savings Representation and, further or alternatively, the Future Business Savings Representation by the Energy Watch Website Version 2 , 3, 4, 5 and 5A; (c) the Future $386 Savings Representation by the Energy Watch Website Version 1. [see the Representative Advertisements for Categories 12 to 14] Billboard Advertisements (referred to at paragraphs 75 to 78 above) 95 With respect to the billboards, the ACCC alleges and Energy Watch denies that: (a) each of the First, Seventh, Eighth, Ninth, Tenth and Eleventh Energy Watch Billboards made the Future $386 Savings Representation; [see the Representative Advertisements for Categories 15 and 16] (b) each of the Second, Third, Fourth, Fifth, and Sixth Energy Watch Billboards made: (i) the Past Residential Savings Representation and the Past Business Savings Representation; and, further or alternatively, (ii) the Future Residential Savings Representation and the Future Business Savings Representation. [see the Representative Advertisement for Category 17] MCG Advertisements (referred to in paragraphs 81 to 83 above) 96 With respect to the MCG Advertisements the ACCC alleges and Energy Watch denies that Energy Watch made the Future $386 Savings Representation. [see the Representative Advertisement for Category 18] Whether the Comparison representation was false, misleading and deceptive 97 The ACCC alleges and the Respondents deny that the Comparison Representation, if made by either of the Respondents was false, misleading and deceptive, or likely to mislead and deceive, because the ACCC alleges that at all material times: (a) for a person with an existing energy connection, Energy Watch does not and did not compare the person's existing energy rates with the rates of all or many of the other energy retailers available in the person's area; (b) for a person who needs or needed a new energy connection, Energy Watch does not and did not compare the rates of all or many of the energy retailers available in the person's area; and (c) Energy Watch in fact only compares and compared: (i) for a person with an existing energy connection, the existing rate of the person and the rates of the preferred retailers referred to in paragraph 5(d) above and (ii) for a person who needs or needed a new energy connection, the rates of Energy Watch's preferred retailers, in circumstances where at all material times: (iii) the preferred retailers of Energy Watch are and have been the businesses referred to in paragraph 5(d) above; (iv) all or many of the available energy retailers in New South Wales, Queensland and Victoria are and have been the businesses referred to in paragraphs 9 to 11 above; and (v) Energy Watch did not have any preferred retailers other than in New South Wales, Queensland, and Victoria. 98 The Respondents further say to the ACCC's allegations in paragraph 97 above, and the ACCC contends that it is no answer to its allegations, even if factually correct that: (a) Energy Watch maintained a database of the products offered by energy retailers in the Victorian, New South Wales and Queensland Markets; (b) the database covered: (i) all of the suppliers listed in paragraph 9 above other than

those named in sub-paragraphs 9(f), 9(h), 9(k) and 9(l), each of which serviced only large customers (with electricity requirements greater than 160 Mw per annum) not relevant to Energy Watch's operations;
those named in sub-paragraphs 9(s), 9(t), 9(u) and 9(v); (ii) all of the suppliers listed in paragraph 10 above other than those named in sub-paragraphs 10(d), 10(i) and 10(j); (iii) all of the suppliers listed in paragraph 11 above; (c) Energy Watch updated this database on a constant basis using information about plans and prices obtained: (i) by monitoring the marketing of the retailers; (ii) by regular visits to retailer websites and telephone calls to retailer call centres from consumers who informed Energy Watch representatives of their existing energy supply arrangements. (d) Energy Watch regularly compared the prices and plans offered by its preferred suppliers with the prices and plans of other retailers on the database. It did this in order to be aware of which, if any, of those retailers has prices or plans on more favourable terms to consumers or businesses than those which its preferred suppliers offered. In cases where this occurred, Energy Watch sought to and did negotiate an improvement in the prices and plans offered by its alternative suppliers. 99 The Respondents further say to the ACCC's allegations in paragraph 97 above, and the ACCC contends that it is no answer to its allegations, even if factually correct that at all relevant times: (a) Energy Watch's advertising directed a customer either to the Energywatch.com.au website or to a 1300 number. (b) consumers who visited the website were directed either to call a 1300 number or complete a web-form with some contact details and a request to Energy Watch to make contact with them; (c) as a result, no consumer responding to any of Energy Watch's advertisements was given the opportunity to enter into any transaction or commitment before they had spoken to an Energy Watch representative; (d) in the course of the telephone interview resulting from the consumer's call, or the call to the consumer based on the web-form: (i) the consumer would be asked to supply details from one or more recent energy accounts (either electricity, gas or both, according to the consumer's preference). Those details would include:
the supply address and or the National Meter Identification number;
the existing supplier;
the relevant tariff;
the amount of energy supplied during the billing period;
the amount charged by the existing supplier for that energy. (ii) if the consumer was unable to supply details from a recent energy account, they would provide details of the supply address and their estimate of the amount of energy; (iii) the Energy Watch representative would then inform the consumer of the best rates and discounts available to them for the supply address based on the database maintained by Energy Watch. The representative would select these from the rates available from Energy Watch's preferred suppliers. (iv) the Energy Watch representative would then identify the possible alternative supplier and take the customer through:

Signed by Daniel Marquet Lawyer for the applicant Dated: 21 March 2012

Signed by George Schifter Lawyer for the respondents Dated: 21 March 2012 Schedule FAST TRACK No. VID 930 of 2011 Federal Court of Australia District Registry: Victoria Division: General Division Respondents Second Respondent: BENJAMIN HEINRICH POLIS

Trade Practices Act 1974(Cth)ss 52, 53(c), 55A

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Judgment (41 paragraphs)

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