Consideration
120 As noted above, Honda has admitted that:
(a) it made the alleged representations by sending Service Reminder Communications to customers of Astoria and Tynan (in the period 1 February 2021 to 26 April 2021) and to customers of Burswood (in the period 1 April 2021 to 26 April 2021). These communications are set out at Tabs 1 and 2 of Annexure A to the SOAF; and
(b) on 17 occasions in the period 24 December 2020 to 15 April 2021, Call Centre staff acting on Honda's behalf made statements that conveyed the alleged representations. These communications are set out in Tabs 8 to 23 of Annexure A to the SOAF and item 11 of Annexure A to the ACCC's amended concise statement.
121 Honda admits that it contravened ss 18 and 29(1)(j) of the Australian Consumer Law by making those representations.
122 On the basis of the factual findings set out earlier in these reasons, and these admissions, I accept that Honda did make the alleged representations by the communications set out in [120] above and that it thereby contravened ss 18 and 29(1)(j) of the Australian Consumer Law.
123 As noted above, there is a dispute between the parties as to whether the alleged representations were conveyed by certain other communications, namely:
(a) Exit Communications that were sent to customers of Astoria and Tynan on about 1 February 2021, and to customers of Burswood on about 1 March 2021 and 31 March 2021. The communications are set out in Tabs 3 to 7 of Annexure A to the SOAF;
(b) statements made on the Honda website. These statements are set out in Tabs 24 and 25 of Annexure A to the SOAF; and
(c) one of the Call Centre communications relied on by the ACCC. This communication is set out in item 22 of Annexture A to the ACCC's amended concise statement.
124 I will deal with each disputed communication in turn.
125 In relation to the Exit Communications, I have set out, at [87] above, the email that was sent by Honda to customers of Astoria on about 1 February 2021. The Exit Communications sent by Honda to customers of Tynan on about 1 February 2021 were in substantially the same terms. The Exit Communications sent by Honda to customers of Burswood on about 1 March 2021 and 31 March 2021 are set out at [97]-[98] above.
126 The ACCC submits that, by sending these Exit Communications, Honda expressly or impliedly made the No Servicing Representation. The ACCC submits that the emails represented that, for servicing requirements (and future sales), the customer would have to attend another Honda service centre in the customer's area and (at least implicitly) could not have their car serviced by attending Astoria, Tynan or Burswood.
127 In my view, the Exit Communications referred to at [125] above did not make the No Servicing Representation. It is necessary to read each communication as a whole and in context. The communications did not say that the relevant dealer was "closing"; merely that they would cease, or had ceased, to be an authorised Honda dealer. In my view, the ordinary and reasonable member of the relevant class (owners of Honda vehicles who had their vehicles serviced at the relevant dealer) would understand the distinction between the dealer ceasing to be an authorised Honda dealer and the dealer closing down. They would understand that, if the relevant dealer was ceasing to be an authorised Honda dealer, the dealer might nevertheless continue to operate. In these circumstances, I am not satisfied that the communications conveyed a representation that the relevant dealer would no longer service, or was no longer servicing, Honda vehicles.
128 In relation to the statements on the Honda website (Tabs 24 and 25 of Annexure A to the SOAF), the ACCC notes that Honda's webpage included information referring to the "closure of some current Honda dealerships". The ACCC relies on the following text (which appeared in both forms of the webpage):
How do I know if my local Honda dealership is one that is closing and what do I do if it is?
Customers that are impacted by a change in their service location will be notified, providing Honda has your accurate and up-to-date contact information. For a list of Honda sites please visit: www.honda.com.au/dealers, alternatively, you can reach our team on 1800 804 954 (8.30am to 6.00pm weekdays)
129 The ACCC submits that the above text directed users of the website to "a list of Honda sites" that did not include Astoria or Tynan. The ACCC submits that the webpage conveyed both the Closure Representation and the No Servicing Representation because it:
(a) referred to the closure of dealers and directed customers to a list of Honda dealers that were not closing (which excluded Astoria and Tynan); and
(b) addressed a concern about "what to do" if the customer's dealer was closing by directing customers to the list of dealers that excluded Astoria and Tynan and, by doing so, at least implicitly conveyed that it was necessary for customers to attend one of those (non-closing) dealers for their servicing requirements.
130 In my view, the part of the webpage relied on by the ACCC did not convey the alleged representations. Although the question is, "How do I know if my local Honda dealership is one that is closing …", the first part of the answer is that customers will be notified of a change in their service location. It is only in the next sentence that reference is made to "a list of Honda sites". I consider that the ordinary and reasonable person in the relevant class (users of the website) would understand the list to be a list of authorised Honda dealers. The absence of Astoria and Tynan on the list would indicate that they are not authorised Honda dealers. I am not satisfied that the ordinary and reasonable person in the relevant class would understand from this that Astoria and Tynan had closed or that they were no longer servicing Honda vehicles.
131 In relation to item 22 of Annexure A to the ACCC's amended concise statement (set out at [51] above), which is a conversation that took place in January 2021, the ACCC submits that the Call Centre staff member made the Closure Representation and the No Servicing Representation in relation to Burswood. I accept that the Call Centre staff member did convey that Burswood had closed, which was incorrect. However, in the context of the call, the error was inconsequential. First, it appears that the caller was interested in purchasing a new Honda vehicle. As at January 2021, Burswood was no longer an authorised Honda dealer for sales. Therefore, the caller would not have been able to buy a new Honda vehicle from Burswood. Secondly, it appears that the caller was looking to purchase a vehicle in Victoria. Burswood is located in Western Australia. Therefore, the information about Burswood was irrelevant. In light of these matters, I am not satisfied that Honda contravened the statutory provisions by this conversation.
132 In summary, in relation to the communications in respect of which there is a dispute between the parties, I conclude that Honda did not contravene ss 18 and 29(1)(j) of the Australian Consumer Law.
133 In respect of the admitted contraventions, it is appropriate to make declarations reflecting these contraventions. The requirements for the making of declarations are satisfied in the present case, in that: (a) the question whether Honda contravened the provisions is a real and not a hypothetical one; (b) the applicant, the ACCC, has a real interest in raising the question; and (c) there is a proper contradictor (notwithstanding that Honda has admitted the contraventions).
134 In the amended originating application, the ACCC seeks two declarations: one referable to the No Closure Representation; the other referable to the No Servicing Representation. Each proposed declaration applies for the period January to June 2021 and in relation to all three dealers. I consider that it would be preferable for the declarations to be recast so that they refer to the relevant communications, namely the Service Reminder Communications and the statements made by Call Centre staff. Further, I consider that the declarations should reflect the fact that the time periods were different for the Service Reminder Communications relating to Astoria and Tynan and those relating to Burswood. In light of these matters, and subject to any submissions the parties may wish to make, I propose to make declarations along the following lines:
IT BE DECLARED THAT:
1. Between about 1 February 2021 and 26 April 2021, the respondent (Honda), in trade or commerce:
(a) in connection with the promotion and supply of automotive servicing and repair services to Australian consumers, made false or misleading representations concerning the availability of facilities for the repair of vehicles, in contravention of s 29(1)(j) of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law); and
(b) engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18(1) of the Australian Consumer Law;
by:
(c) sending service reminder emails and text messages (Service Reminder Communications) to customers of Brighton Automotive Holdings Pty Ltd (Astoria) and Tynan Motors Pty Ltd (Tynan) that represented that Astoria or Tynan (as applicable):
(i) would close or had closed; and
(ii) would no longer service, or were no longer servicing, Honda vehicles,
when in fact:
(d) Astoria and Tynan were not closing, did not close, and during that period continued to operate vehicle servicing departments and were able to service, repair and provide spare parts for vehicles, including Honda vehicles.
2. Between about 1 April 2021 and 26 April 2021, Honda, in trade or commerce:
(a) in connection with the promotion and supply of automotive servicing and repair services to Australian consumers, made false or misleading representations concerning the availability of facilities for the repair of vehicles, in contravention of s 29(1)(j) of the Australian Consumer Law; and
(b) engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18(1) of the Australian Consumer Law;
by:
(c) sending Service Reminder Communications to customers of Buick Holdings Pty Ltd (Burswood) that represented that Burswood:
(i) would close or had closed; and
(ii) would no longer service, or were no longer servicing, Honda vehicles,
when in fact:
(d) Burswood was not closing, did not close, and during that period continued to operate a vehicle servicing department and was able to service, repair and provide spare parts for vehicles, including Honda vehicles.
3. Between 24 December 2020 and 15 April 2021, Honda, in trade or commerce:
(a) in connection with the promotion and supply of automotive servicing and repair services to Australian consumers, made false or misleading representations concerning the availability of facilities for the repair of vehicles, in contravention of s 29(1)(j) of the Australian Consumer Law; and
(b) engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18(1) of the Australian Consumer Law;
by:
(c) call centre staff acting on Honda's behalf making statements to callers that represented that Astoria, Tynan or Burswood:
(i) would close or had closed; and/or
(ii) would no longer service, or were no longer servicing, Honda vehicles,
when in fact:
(d) Astoria, Tynan and Burswood were not closing, did not close, and during that period continued to operate vehicle servicing departments and were able to service, repair and provide spare parts for vehicles, including Honda vehicles.