Australian Competition and Consumer Commission v Spreets Pty Ltd - [2015] FCA 382 - FCA 2015 case summary — Zoe

CTHFCA

Australian Competition and Consumer Commission v Spreets Pty Ltd

[2015] FCA 382

Federal Court of Australia|2015-04-23|Before: Collier J

View original source

At a glance

Source facts

Court

Federal Court of Australia

Decision date

2015-04-23

Before

Collier J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

BACKGROUND FACTS 43 As I have already observed, this proceeding was commenced by the ACCC as a result of an investigation by it into the conduct of Spreets. 44 At all material times, from at least around 19 March 2010 to 1 March 2013 ("the relevant period"), Spreets operated an online group buying ("OGB") business in Australia. Around December 2012 Spreets began to change its business model, with the change taking full effect from 6 March 2013, such that I understand Spreets now operates as a deal aggregator for other OGB businesses. 45 Spreets operates a website, which functioned as a platform for merchants to offer various types of goods and services to consumers at significantly discounted prices by way of voucher deals. These offers were made in the following forms: sending emails advertising deals offered nationally and locally to consumers who had requested to be included on the Spreets' database; posting deal details on social media including Facebook and Twitter; and promoting deals on the Spreets website, both on the front page of the Spreets Website and on a specific webpage for the deal, which was available to the public for a limited period of time. 46 Where Spreets promoted its deals to consumers, those promotions typically included a link to the relevant deal page on the Spreets Website, which included an advertisement for the deal, specified terms and conditions that applied to the deal and a link where vouchers could be purchased. 47 Spreets used a voucher system to enable consumers to purchase a voucher for the deals from Spreets that was redeemable for particular goods and services from a particular third-party merchant, subject to various terms and conditions including redemption of the voucher within a specified period. In summary, terms and conditions for the voucher deals were made up of: specific terms and conditions disclosed on the voucher deal page on the Spreets website which were then printed on vouchers purchased by consumers; and general terms and conditions for Spreets' consumers which were available on the Spreets Website and relevant to vouchers purchased by consumers. 48 Person who purchased voucher deals from Spreets were consumers as defined by s 3 of ACL and were directed to Spreets' consumer terms and conditions before they completed a purchase. 49 Features of Spreets' business model included: merchants offering to supply goods or services at discounted prices by way of vouchers sold by Spreets on the Spreets website; a pre-condition that a minimum number of vouchers must be sold during the "voucher selling period" before the deal was "activated" or is "tipped"; and a cap on the number of vouchers that Spreets could sell for the voucher deal that could be imposed. 50 As part of its business operations, Spreets provided the following services to merchants in accordance with an agreement between it and the merchant: advice to merchants about terms and conditions that would be appropriate for the particular type of deal that the merchant would offer; online marketing and editorial services, including development of the vouchers and deal pages on the Spreets Website; and promoted the deals to consumers. 51 Spreets provided the following services to consumers: facilitating the purchase of vouchers through the Spreets Website; and accepted payment for the voucher deals and supplied vouchers for the deals to consumers (retaining a percentage - generally 10%-30% - of payments as commission, remitting the remaining revenue to merchants); and handled enquiries and complaints from consumers about voucher deals. 52 The redemption process for Spreets' vouchers varied from merchant to merchant with the process including a consumer, in summary: making a booking with the merchant; presenting the voucher in exchange for goods or services the subject of the deal; and providing a delivery address (to either Spreets or the merchant) to which a merchant could deliver the goods the subject of the deal. 53 In the joint submissions and statement of agreed facts and admissions filed 21 November 2014, it is agreed that during the relevant period Spreets was one of the larger OGB businesses in Australia. As at May 2011, Spreets had an active national database of over 1 million members. During 2011 and 2012, Spreets promoted around 6,000 deals and sold around 2 million vouchers to consumers over the Spreets Website. 54 Importantly, the parties submit that the contraventions admitted by Spreets fall into four broad categories:

[3]

Representations to consumers about the price of deals 55 The parties agreed that this aspect of the case particularly concerned three voucher deals promoted by Spreets and offered for sale on the Spreets website for tandem skydives, each redeemable from different merchants, namely the Melbourne City Skydive Centre Deal, the Coffs City Skydivers Deal and the Rainbow Beach Skydive Deal. 56 The parties submit that the admitted contraventions for both the Melbourne City Skydive Centre Deal and the Coffs City Skydivers Deal involved both: (a) promotional emails sent by Spreets to persons subscribed to receive deals from Spreets; and (b) deals as offered on the deal pages on the Spreets website. 57 The admitted contravention for the Rainbow Beach Skydive Deal related solely to the deal pages on the Spreets website. 58 In each case, the contraventions involved Spreets prominently promoting a "headline" price for which the voucher deals could be purchased, without adequately disclosing that voucher purchasers would also be required to pay a compulsory Australian Parachute Federation levy (APF Levy) in the amount of either $25 or $35 to the relevant merchant when purchasers sought to redeem their voucher. A purchaser would not need to pay this levy if he or she were already a member of the APF at the time of redemption of the voucher, however this fact was not disclosed in the conditions for the relevant deals. 59 The parties jointly submitted a table in the following form, summarising the nature of each convention: Table 1: Representations about prices Deal Contravention Type Number of vouchers sold Voucher purchase price Compulsory APF Levy Total cost to redeem voucher (incl. APF Levy) Melbourne City Skydive Centre Email and Spreets Website 207 $375 $25 $400 Coffs City Skydivers Email and Spreets Website 93 $129 $35 $164 Rainbow Beach Skydive Spreets Website only 432 $130 $35 $165

[4]

(a) Representations about the price of deals - email advertisements 60 The email contraventions related to promotional emails sent by Spreets to subscribers maintained on the Spreets database, who had subscribed to receive promotional emails and other material from Spreets about deals offered nationally and in the localities in which the consumers lived. Contraventions alleged by the ACCC concerned two emails ("the contravening emails") sent by Spreets: the Melbourne City Skydive Centre email sent to over 200,000 subscribing consumers located in Victoria on or about 30 June 2011; and the Coffs City Skydivers email sent to approximately subscribing consumers located in Sydney and approximately 200,000 subscribers in Brisbane on or about 23 December 2011. 61 The contravening emails contained a number of common features, in particular: in relation to the Melbourne City Skydive Centre: o a list of voucher deals available for purchase by consumers; o a short "headline" description of each listed voucher deal (which in this case stated: "The Ultimate Adventure Experience! Tandem Sky Dive & Scenic Flight into Yarra Valley Winery with TwoCourse Lunch & Wine for Only $375, Value $750!"); o a further prominent, unqualified statement of the price of each deal ("$375"); o a description of the savings stated to be available to voucher purchasers ("Value $750. Discount 50%. You Save $375"); and o a link to the relevant deal page on the Spreets website where further details of the voucher deal, including any applicable terms and conditions were provided ("See Today 's Deal"). In relation to the Coffs City Skydivers: o a list of voucher deals available for purchase by consumers; o a short "headline" description of each listed voucher deal (which in this case stated: "Experience the Thrill of Your Life! Incredible Tandem Skydive from 8,000 Feet- JUST $129! Normally $265!"); o a further prominent, unqualified statement of the price of each deal ("$129"); o a description of the savings stated to be available to voucher purchasers ("FULL PRICE $265. SAVE 51%"); and o a link to the relevant deal page on the Spreets website where further details of the voucher deal, including any applicable terms and conditions were provided ("View deal"). 62 To purchase a voucher for the Melbourne City Skydive Centre deal or Coffs City Skydivers deal, the recipient of the email clicked on the link in the relevant email. 63 The parties agreed that the contravening emails: did not make reference to the Australian Parachute Federation ("APF") levy; represented that by paying the advertised "headline" price, a consumer could purchase a voucher for the relevant skydiving deal; and advertised "headline" price was the only price that a consumer needed to pay to redeem a voucher for each voucher deal from the specified merchant. 64 However, the parties also agreed that notwithstanding these representations: unless the consumer was already a member of the APF, consumers who purchased a voucher for either deal were required to pay the APF Levy ($25 in the case of the Melbourne City Skydive Centre Deal and $35 in the case of the Coffs City Skydivers Deal) in addition to the headline price advertised by Spreets in the contravening emails; to become aware of the APF levy applicable to each voucher deal, a consumer would have to view the relevant deal page on the Spreets Website and scroll down to the section titled "The Fine Print"; the contravening emails and the website pages all three merchants did not refer to the payment of the APF levy being unnecessary if a consumer was already a member of the APF". 65 Having regard to Spreets' target audience, the parties agreed that most voucher purchasers would not already have been members of the APF. Moreover, in making the representations as summarised above and in the joint submissions and statement of agreed facts and admissions filed 21 November 2014, Spreets admitted that, in trade or commerce, and in connection with the supply, possible supply or promotion of the supply of Spreets' services to consumers, being the supply of vouchers to voucher purchasers (Spreets' services), it, on each occasion: (a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL; and (b) made false or misleading representations with respect to the price of services in contravention of s 29(1)(i) of the ACL.

[5]

(b) Website advertisements and offers 66 The parties agreed that this particular aspect involved a series of deal pages published on the Spreets website for each of the Melbourne City Skydive Centre, Coffs City Skydivers and Rainbow Beach Skydive deals from on or about 30 June 2011 until approximately 25 December 2011 ("the contravening deal pages"), which allowed customers to purchase vouchers for the relevant deal via a website link. 67 The contravening deal pages were active on the Spreets website, on multiple deal pages, during the following periods: (a) the Melbourne City Skydive Centre deal on four occasions between about 30 June 2011 and about 19 September 2011; (b) the Rainbow Beach Skydive deal on two occasions from approximately 16 September 2011 to approximately 19 September 2011; and (c) the Coffs City Skydivers deal on two occasions from about 23 December 2011 to approximately 25 December 2011. 68 In relation to these offers, consumers could access the contravening deal pages either by following a link from the email advertisement relating to the deal or by directly accessing the deal pages through the Spreets website. Once each deal had expired, the relevant deal page remained on the Spreets website with a message stating "THE DEAL IS OVER" or "Deal is over" and vouchers could no longer be purchased. 69 The contravening deal pages contained a number of common features for all merchant providers, as summarised below: a deal headline which matched the headline in any email sent to subscribers; o the Melbourne City Skydive Centre headline read "The Ultimate Adventure Experience! Tandem Sky Dive & Scenic Flight into Yarra Valley Winery with Two-Course Lunch & Wine for Only $375, Value $750!"; o the Coffs City Skydivers headline read "Experience the Thrill of Your Life! Incredible Tandem Skydive from 8,000 Feet- Just $129! Normally $265!"; and o the Rainbow Beach headline read "Ultimate Skydiving Experience! Tandem Skydive Over Rainbow Beach for Just $130 (Value $260). See the Sights From New Heights!"; the prominent statement of the price of the voucher, in the largest text on the deal page; o the Melbourne City Skydive Centre price was "$375"; o the Coffs City Skydivers price was "$129"; and o the Rainbow Beach price was "$130"; a picture related to the deal, which in all instances was a picture of a tandem skydive; a "Highlights" section setting out features of the deal and what the consumer would be entitled upon purchasing a voucher; and a section below the "Highlights" section labelled "The Fine Print" containing specific terms and conditions relevant to the deal; o the Melbourne City Skydive Centre condition referring to the APF levy appeared as the fifth condition out of the 16 conditions listed under the "Fine Print" section; o the Coffs City Skydivers condition referring to the APF levy appeared as the eighth condition out of the 13 conditions listed under the "Fine Print" section; and o the Rainbow Beach condition referring to the APF levy appeared as the ninth condition out of the 14 conditions listed under the "Fine Print" section. 70 It was agreed by the parties that the unqualified deal headlines and prominent statement of price conveyed a representation for each of the contravening deal pages that a consumer need pay no more than the advertised headline price in order to be able to redeem the voucher for the skydiving service. The parties agreed that this representation was misleading, as most consumers would not have been able to redeem their voucher without payment of the additional APF levy to the relevant merchant. 71 The parties further agreed that these representations were not sufficiently corrected by the conditions in the respective fine print sections for each deal because: there was no qualification in the "headline" price alerting customers to the fact that additional fees or charges applied; the conditions were inconsistent with the representations conveyed by the "headline" message; the "Fine Print" section in each of the Contravening Deal pages was not immediately visible to consumers when they first arrived at the deal webpage and consumers had to scroll down the page before this section became visible; and the relevant conditions were in significantly smaller font than the headline and were one of a number of conditions in the "Fine Print" section. 72 Spreets has admitted to making these representations, in each of the contravening deal pages. Further, they have admitted that, in trade or commerce, and in connection with the supply, possible supply or promotion of the supply of Spreets' services, on each occasion that they engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations with respect to the price of services in contravention of s 29(1)(i) of the ACL.

[6]

Representations to consumers about consumer guarantees 73 This aspect of the matter concerns statements by Spreets to consumers pursuant to four available deals. 74 The parties jointly submitted a similar table detailing the respective deals and summarising the nature of each alleged convention. In each case, the statements along with a number of other terms and conditions for the deals were printed on the face of the vouchers provided to consumers by Spreets. Table 1: Representations about consumer guarantees Deal Data advertised and offered on the Spreets website Number of vouchers sold Voucher price Misleading representation Melbourne City Skydive Centre Deal 30 June 2011 to about 5 July 2011 134 $375 • Refunds are not applicable. • Not available with any other offer and no refunds; not redeemable for cash. Joint submissions by the parties detail that the misleading representations were only published on vouchers for the Melbourne City Skydive Centre Deal sold in late June and early July 2011, and were not present in vouchers sold for the deals as advertised and offered in September 2011. Travel Smoove Hong Kong Deal From on or about 7 December 2011 to about 9 December 2011 303 $445 • Non-refundable and non-exchangeable. Vivere Products Storage System Deal From on or about 12 March 2012 318 $54 • Refund on faulty products accepted up to 7 days after receipt of delivery (return shipping no included). Deals in Australia Wine Aerator Deal From on or about 15 April 2012 424 $39 • Refund on faulty products accepted up to 7 days after receipt of delivery (return shipping on included).

[9]

Ms Liana Kovacevic - Zensara Day Spa 81 In summary, the parties agreed in respect of the following facts concerning Ms Kovacevic: (a) In or about June 2011, Spreets advertised and offered a voucher deal on the Spreets Website for hair removal services redeemable from the merchant, Zensara Day Spa, at the purchase price of $399. (b) Ms Kovacevic purchased two vouchers at a total cost of $798. (c) On 6 July 2011, Ms Kovacevic complained by email to Spreets that she had unsuccessfully attempted to contact the merchant by "ringing every day several times during the day, and had left voicemails". Ms Kovacevic advised that if she was unable to "get in touch" with the merchant in the "next few days" she felt that she had no choice but to ask Spreets for a refund. (d) On 7 July 2011, Spreets replied by email thanking Ms Kovacevic for bringing the matter to their attention. They advised that Spreets could not control how the merchant operated on a daily basis and that the merchant could be busy servicing their existing customer base as well as Spreets customers. (e) On 8 July 2011, Ms Kovacevic complained by email to Spreets that her attempts to contact the merchant continued to be unsuccessful. Ms Kovacevic advised that if she were unable to contact the merchant by 9 July 2011, she sought a full refund from Spreets. (f) On 11 July 2011, Ms Kovacevic complained by email to Spreets that her attempts to contact the merchant continued to be unsuccessful and that her attempts had now lasted nine days. Ms Kovacevic advised that in light of this, she sought a full refund from Spreets. (g) On 20 July 2011, Spreets responded to Ms Kovacevic by email explaining that "it is often the case that due to the increased business generated from running a deal with Spreets, companies are initially too busy to call back or reply to emails". Spreets advised Ms Kovacevic that she should continue to call or email the merchant as Spreets were confident that she would still be able to redeem her vouchers within the validity dates. Spreets gave Ms Kovacevic the name and number of a suggested contact person at Zensara Day Spa. (h) On 20 July 2011, Ms Kovacevic responded to Spreets that she wanted a refund as soon as possible as she did not wish to deal with "this company" any longer. (i) Having received no response to her email by 28 July 2011, Ms Kovacevic sent a further email to Spreets reiterating her request for a refund as she no longer wished to deal with Zensara Day Spa. (j) On 29 July 2011, Spreets replied to Ms Kovacevic stating that they were "not be able to process any refunds for this deal as [they] have already made all payments to Zensara and if a refund is desired, [it] must be directed to the business themselves and they will issue it to you". 82 It is submitted by the parties that the purported term that Spreets was not required to assist Ms Kovacevic with her request was not part of the terms and conditions applying to the Zensara Day Spa Deal.

[10]

Ms Janet Davis - Urban Spa 83 The ACCC pleaded both a general contravention and a specific contravention of the ACL involving representations made by Spreets to Ms Davis concerning the Urban Spa Deal. However, in the joint submissions and statement of agreed facts and admissions filed 21 November 2014, I note that the ACCC no longer seeks a separate declaration or separate penalty in relation to the misrepresentations to Ms Davis. 84 Rather, I note that Spreets admits to the pleaded conduct concerning Ms Davis. The parties jointly submit that the conduct of Spreets should be considered as part of the conduct constituting the general contravention. 85 The parties submitted, in summary, the following facts in relation to Ms Davis: In or about August 2010, Spreets advertised and offered a voucher deal on the Spreets Website for massage and beauty services redeemable from the merchant, Urban Spa, at the purchase price of $79. The terms and conditions applying to the deal included "Voucher valid 12/8/10- 12/8/11" and "Bookings essential". On or about 12 August 2010, Spreets sold a voucher to Ms Davis for this deal, valid until 12 August 2011. Ms Davis attempted to make a booking with Urban Spa to redeem her voucher. On 9 August 2011, a representative of Urban Spa advised Ms Davis that Urban Spa had no times available for her to redeem her voucher up until the expiry date; however she could be placed on the waiting/cancellation list. On 10 August 2011 (two days before the expiry of the validity period), Ms Davis emailed Spreets advising that she was having trouble redeeming her voucher and that she would like to claim a refund. On 18 August 2011, Spreets respondent to Ms Davis by email stating that they were unable to provide her with a refund. Spreets advised that their "deals are "subject to availability" and that this terms is "not only stipulated on our terms and conditions under section 12, but also on the fine print of the deal itself". Spreets went further to explain that if Ms Davis had contacted them (Spreets) within a reasonable time frame to assist her in redeeming her purchase, rather than two days before the expiry date, they "could of [sic] resolved this issue" for her. Ms Davis responded to Spreets email on 18 August 2011 pressing her request for a refund. Another Spreets representative subsequently replied to Ms Davis request reiterating that their (Spreets) deals are subject to availability and that had she got in touch with Spreets sooner they could have investigated the issue earlier for her. 86 It is submitted by the parties that the purported term that customers were to contact Spreets within a reasonable time from prior to the expiry of the deal was not part of the terms and conditions applying to the Urban Spa Deal.

[11]

Bernard - Nirvana Beauty 87 The parties submitted, in summary, the following facts in relation to an individual customer known only as Bernard: In or about January 2011, Spreets advertised and offered a voucher deal on the Spreets Website for a "princess package" (comprising a massage, facial and other services) with the merchant Nirvana Beauty, at the purchase price of $89. The voucher was redeemable from 17 January 2011 to 17 July 2011. On 27 July 2011, Spreets received an email complaint from Bernard stating that he/she had made several unsuccessful attempts to book an appointment with the merchant "at a few locations". Bernard explained that he/she had subsequently left booking the appointment for a later time however he/she realised that the voucher had expired. Bernard asked Spreets for their assistance in this regard. On 27 July 2011, Spreets responded by email stating that all vouchers have a specific time frame to redeem services. Spreets explained that had Bernard contacted Spreets within the validity period they would have been able to assist him/her in redeeming his/her purchase. Spreets explained that they were unable to extend the voucher period or provide a refund. Spreets explained that the nature of their business required a strict protocol in relation to the expiration period of their deals as they had contracted with all merchants, which affected payment both to Spreets and the merchants. Spreets reiterated the terms and conditions on their website, which stated: 11.2(e) the expiration date of a Voucher will be specified on the Voucher and disclosed on the Site. Once a Voucher has expired, Spreets considers the Voucher to be invalid and it will not be honoured by Spreets or the Merchant. Spreets will not provide any refunds in whole or in part for any expired Vouchers. Bernard responded to Spreets stating that he/she had attempted "more than 3 times" in the few days prior to the expiry date to make an appointment. Bernard explained that it was obvious that he/she had paid his/her money in advance and that the merchant was not willing to give an appointment. Bernard questioned Spreets as to why he/she should lose his/her money for not obtaining an appointment despite several unsuccessful attempts. On 10 August 2011, Spreets replied to Bernard with a standard form response, stating, in summary that they were unable to provide a refund for this deal as it has expired. Spreets referred Bernard to their terms and conditions, namely 12.1, which stated: 12.1 All vouchers relating to the provision of services by Merchants is [sic] subject to availability and may require you to make a booking in advance. Spreets cannot guarantee that services will be available at your preferred times. It is your responsibility to arrange your booking directly with the Merchant. Spreets also advised that if Bernard had contacted Spreets earlier, they would have been able to investigate the issue earlier. 88 The parties submitted that the purported terms upon which Spreets relied, namely that Spreets would not provide refunds for expired vouchers and the requirement to contact Spreets within a reasonable time frame prior to the expiry of the deal, were not part of the terms and conditions applying to the Nirvana Beauty deal.

[12]

Ms Rachel Moftah - Glamour Day Spa 89 The parties submitted, in summary, the following facts in relation to Ms Moftah: In about April 2011, Spreets advertised and offered a voucher deal on the Spreets Website for a manicure or pedicure with the merchant, Glamour Day Spa, redeemable from 4 May 2011 to 4 August 2011 at the price of $39. Ms Moftah purchased one voucher for this deal. On 4 August 2011, Ms Moftah emailed Spreets to the effect that she had called the merchant on numerous occasions to book an appointment. Each attempt was unsuccessful. Ms Moftah asked whether it would be possible to have her money refunded as the voucher expired on that day and she had not heard back from the merchant. Spreets responded by email stating that they were unable to extend the voucher period or provide a refund in this instance. Spreets explained that had Ms Moftah contacted Spreets within the validity period they would have been able to assist her in redeeming her purchase. Spreets gave explanation that the nature of their business requires a strict protocol in relation to the expiration period of their deals as they are contracted with all merchants, of which affect payment both to Spreets and the merchants. Spreets reiterated the terms and conditions on their website, which stated: 11.2(e) the expiration date of a Voucher will be specified on the Voucher and disclosed on the Site. Once a Voucher has expired, Spreets considers the Voucher to be invalid and it will not be honoured by Spreets or the Merchant. Spreets will not provide any refunds in whole or in part for any expired Vouchers. Ms Moftah replied to Spreets, outlining that she had in fact contacted them within the validity period (being the last day of the validity period), and that she would therefore like a refund. On 5 August 2011, Spreets responded to Ms Moftah stating that they felt that by contacting Spreets on the last day of the validity date to resolve the issues, Ms Moftah was making an unreasonable request. Spreets referred Ms Moftah to the terms and conditions in which they state she purchased the deal under, namely 12.1, which stated: 12.1 All Vouchers relating to the provision of services by Merchants is subject to availability and may require you to make a booking in advance. Spreets cannot guarantee that services will be available at your preferred times. It is your responsibility to arrange your booking directly with the Merchant. Spreets went further to explain that whilst they could not control how the merchants operated, but that they were willing to offer Ms Moftah a $10 credit to her Spreets account as a gesture of goodwill. Ms Moftah responded to Spreets' email stating that within the 12 week validity period, she had tried unsuccessfully to contact the merchant. She advised that contacting Spreets, the seller of the product, was a last resort, as the expiry date approached. Ms Moftah explained that she understood why Spreets could not extend the validity period, however she did not believe that it was an unreasonable request to ask for a refund in the circumstances. Ms Moftah advised that if she did not receive a refund, she would contact consumer protection for resolution of the matter. On 15 August 2011, Spreets continued to reject Ms Moftah's request for a refund, reiterating that they were unable to give her a refund and that had she contacted them sooner, they could have investigated the issue sooner. 90 The parties agreed that the purported term that customers were to contact Spreets within a reasonable time from prior to the expiry of the deal was not part of the terms and conditions applying to the Glamour Day Spa Deal.

[13]

Lindsay - Apollo Bay Shark Fishing Tours 91 The parties submitted, in summary, the following facts in relation to an individual customer known only as Lindsay: In about September 2011, Spreets advertised and offered a voucher deal on the Spreets Website for a six hour shark fishing trip with the merchant, Apollo Bay Fishing, & Adventure Tours", redeemable from 8 September 2011 to 24 December 2011 at the price of $99. On 22 December 2011, Spreets received an email complaint from Lindsay which stated that he/she had purchased 4 x voucher deals for the Apollo Bay Shark Fishing Tour. Lindsay explained that he/she has made numerous calls to the merchant to book, however has only reached their voicemail on each occasion. Lindsay explained that as a result of the merchant not returning his/her calls; he/she was formally requesting a refund from Spreets of all monies paid. On 10 January 2012 (after the expiry of the voucher), Spreets responded to Lindsay referring him/her to the fine print of the portion of the deal which provided details concerning the validity period. Spreets explained that to ensure availability on the tour, Lindsay must book one month before the end of the validity period, otherwise bookings were subject to availability and not guaranteed. Spreets further stated that had Lindsay contacted them earlier, within the validity period, they could have assisted him/her with this issue. Spreets advised that all deals were subject to availability, as detailed in their terms and conditions and in the fine print of each deal. Spreets referred Lindsay terms 12.1, which stated: 12.1 All Vouchers relating to the provision of services by Merchants is subject to availability and may require you to make a booking in advance. Spreets cannot guarantee that services will be available at your preferred times. It is your responsibility to arrange your booking directly with the Merchant. Lindsay responded to Spreets explaining that he had attempted to contact the merchant on numerous occasions in November (one month before the expiry of the validity period). On each attempt Lindsay explained that he/she had received the merchant's voicemail, had left a message, and that he/she did not receive a return call from the merchant. Lindsay explained that he/she had used his best endeavours to contact the merchant, they failed to respond, and as a result the matter was out of his/her control. Lindsay asked for the matter to be reviewed once more. On 20 January 2012, Spreets responded to Lindsay and continued to deny liability. Spreets explained that they were not able to process Lindsay's request as the deal has expired and that they have already paid the merchant. Spreets advised that Lindsay should contact the merchant directly to negotiate whether the voucher can be used or refunded at the discretion of the merchant. 92 The parties agreed that the purported terms upon which Spreets relied were not part of the terms and conditions applying to the Apollo Shark Fishing Tours deal.

[14]

Ms Michelle Braggins - Walhalla Star Hotel 93 In summary, the parties agreed the following facts concerning Ms Braggins: On or about 1 February 2011, Spreets advertised and offered a voucher deal on the Spreets website for two nights ' accommodation at the Walhalla Star Hotel in Victoria redeemable from 4 February 2011 to 4 February 2012 at the price of $149. Ms Braggins purchased a voucher for the deal. On 25 December 2011, Ms Braggins sent an email request to Spreets for a refund. Ms Braggins explained that although there were six weeks left before the expiry of the validity period and that the merchant had rooms available during that period; the merchant was not renting any rooms without customers paying an upgrade fee, over and above the voucher price, of $80 - $135 per night. In an email dated 12 January 2012, Spreets offered to contact the merchant on Ms Braggins 's behalf. Ms Braggins consented to this course of action. On 30 January 2012, Spreets sent a further email to Ms Braggins stating that they apologised for any delay in the response to her query. Spreets explained that they had upgraded their support systems, making some customer queries temporarily unavailable for answer. Spreets asked whether the merchant had been in contact with Ms Braggins. On 10 February 2012, Ms Braggins responded to Spreets, explaining that she had made attempts at resolution in this matter, but to no avail. Ms Braggins sought a full refund, on the basis that her voucher had contained misrepresentations by Spreets. Ms Braggins stated that if she did not receive a full refund within 48 hours she would take her complaint to an independent ombudsman for assistance. On 16 February 2012, Spreets responded by email, explaining that they were unable to process refunds as they needed to escalate this issue to their management and sales team. Spreets requested five working days for them to investigate the matter fully. On 20 February 2012 (after the expiry of the validity period), Spreets emailed Ms Braggins and explained that whilst they have been in contact with the merchant, they would not be issuing Ms Braggins with a refund. Spreets explained that all deals were subject to availability, as detailed in their terms and conditions and in the fine print of each deal. Spreets referred Ms Braggins to their term 12.1, which stated: 12.1 All Vouchers relating to the provision of services by Merchants is subject to availability and may require you to make a booking in advance. Spreets cannot guarantee that services will be available at your preferred times. It is your responsibility to arrange your booking directly with the Merchant. Spreets went further to explain that the additional charges were only for the times that the merchant was "booked out of rooms" as allocated to Spreets customers, such as during their peak season. Spreets explained that the hotel offered available dates where there were rooms allocated for Spreets customers. Following Ms Braggins' attempt to continue to press her request for a refund, Spreets responded by email on 24 February 2012 stating that they were unable to provide her with a refund because they had paid the merchant in full and the voucher had expired. Moreover, they reiterated that there was availability for Spreets customers for bookings where a surcharge payment was not required. Spreets explained that if Ms Braggins still wished to redeem the vouchers, she should contact the merchant directly but such redemption was at the merchant's discretion. Spreets explained that the merchant had advised Spreets not to process a refund for Ms Braggins. 94 The parties agreed that the purported terms that Spreets was not required to assist Ms Braggins because Spreets had already paid the merchant and that Spreets would not assist consumers with expired vouchers, were not part of the terms and conditions applying to the Walhalla Star Hotel deal.

[20]

CONSIDERATION 103 In summary, Spreets have admitted to the following conduct: By making representations to consumers about the price of deals in each of the contravening deal pages, they have, in trade or commerce, and in connection with the supply, possible supply or promotion of the supply of Spreets' services, on each occasion, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and made false or misleading representations with respect to the price of services in contravention of s 29(1)(i) of the ACL; By making representations to consumer about consumer guarantee in each of the four deals, they have, in trade or commerce, and in connection with the supply of Spreets' services, in relation to each voucher sold, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and have made a false or misleading representation concerning the existence, exclusion or effect of a condition, warranty, guarantee, right or remedy in contravention of s 29(1)(m) of the ACL; By making representations to individual consumers about their rights under, and the effect of Spreets' terms and conditions, they have, in trade or commerce, and in connection with the supply of Spreets' services, engaged in conduct in that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL and have made false or misleading representations concerning the existence, exclusion or effect of condition in contravention of s 29(1)(m) of the ACL; and By failing to disclose limitations on deals, have contravened section 18 of the ACL. 104 In this matter, I have been requested jointly by the parties to make particular orders by way of resolution, in light of the conduct of Spreets. In deciding whether to make these orders as jointly submitted by the parties, I must be satisfied that I have the power to make such orders and that they are appropriate in the circumstances. It is a well-known principle in circumstances such as this that parties cannot, by consent, confer power to make orders that the Court otherwise lacks the power to make: cf for example Thomson Holdings Pty Ltd v TPC (1981) 148 CLR 150 at 163 and Australian Competition & Consumer Commission v Alvaton Holdings Pty Ltd [2010] FCA 760 at [23]. 105 Notwithstanding this, it is equally recognised that co-operation of a respondent with regulatory authorities and agreement as to orders to be put to the Court in respect of cases under the Competition and Consumer Act 2010 (Cth) ("CCA") is a matter to be taken into account by the Court as being in the public interest. Further, as the law currently stands the Courts acknowledge the persuasiveness of orders agreed by the parties and put to the Court to resolve such matters. As Burchett and Kiefel JJ observed in NW Frozen Foods Ply Ltd v ACCC (1996) 71 FCR 285 at 291: There is an important public policy involved. When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. It appears to us that the authorities in both Australia and New Zealand have provided unanimous support for the approach we have outlined … 106 Relevantly, I note that it is also appropriate to treat the consent of Spreets to the joint submissions put to the Court as admission by Spreets of all facts necessary or appropriate to the grant of the relief sought: Thomson Australian Holdings Proprietary Limited v Trade Practices Commission (1981) 148 CLR 150 at 164.

[21]

Proposed declarations 107 Under s 21 of the Federal Court Act the Court has a wide discretionary power to make declarations. Moreover, the Court does not lack jurisdiction or power to grant declaratory relief merely because the relief is sought with the consent of the parties: IMF (Australia) Ltd v Sons Of Gwalia Ltd (administrator appointed) (2004) 211 ALR 231 at (47]; Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at [30]. 108 In Forster v Jododex Australia Ltd (1972) 127 CLR 421 at 437-8, the High Court held that before making declarations, three requirements should be satisfied: the questions must be a real and not a hypothetical or theoretical one; the applicant must have a real interest in raising it; and there must be a proper contradictor. 109 The parties have submitted that each of these requirements is satisfied in this case because: the proposed declarations relate to conduct that contravenes the ACL and the matters in issue have been identified and particularised by the parties with precision; it is in the public interest for the ACCC to seek to have the declarations made and for the declarations to be made; there is a significant legal controversy in this case, which is being resolved. The ACCC, as a public regulator under the ACL, has a genuine interest in seeking the declaratory relief; and Spreets is a proper contradictor because it is a company, which has contravened the ACL and is the subject of the declarations. It therefore has an interest in opposing the making of them. 110 In addition, the parties further submit that by having regard to the reasoning of Nicholson J in Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] ATPR 42-140 at [6], the declarations sought in this case are appropriate because they serve to: record the Court's disapproval of the contravening conduct; vindicate the ACCC 's claim ACCC's claim that Spreets contravened the ACL; assist the ACCC to carry out the duties conferred upon it by the CCA; inform consumers of Spreets' contravening conduct; and deter other corporations, including Spreets' competitors operating with similar business models, from contravening the ACL. 111 To the extent that the Court required evidence in support of the declarations pursuant to s 191 of the Evidence Act, the parties submit that the joint submissions and statement of agreed facts and admissions filed 21 November 2014 provide such evidence, and that the proposed declarations contain sufficient indication of how and why the relevant conduct is a contravention of the ACL. 112 In this case material before the Court indicates repeated and clear instances of contravention of the ACL as claimed by the ACCC. These contraventions are admitted by Spreets. I consider that it is appropriate to make the declarations sought, both in the interests of justice and in the public interest.

[24]

Statutory consideration 118 Section 224(2) of the ACL provides that, in determining the appropriate pecuniary penalty, the Court must have regard to all relevant matters including: the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; the circumstances in which the act or omission took place; and whether the person has previously been found by a Court in proceedings under Chapter 4 or Pt 5-2 of the ACL to have engaged in any similar conduct. 119 Section 224(4)(b) of the ACL provides that a person is not liable to pay more than one pecuniary penalty in respect of the same conduct. 120 The factors relevant to the assessment of a pecuniary penalty under earlier equivalent legislation to s 224 of the ACL were identified by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 1141-076 at 52, 152-153 as: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; the size of the contravening company; the degree of power of the contravener, as evidenced by its market share and ease of entry into the market; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of the conduct of senior management of the contravener or at a lower level; whether the contravener has a corporate culture conducive to compliance with the legislation as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and whether the contravener has shown a disposition to cooperate with the authorities responsible for the enforcement of the legislation in relation to the contravention. 121 Those considerations have since been approved with the following extensions by Full Courts of this Court: similar conduct in the past; effect on the functioning of the market and other economic effects of the conduct; the financial position of the contravening company; and whether the conduct was systematic, deliberate or covert. (NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290, 292-294 and 297; J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 at [158] and [163]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission (2012) 210 FCR 277 at [141].)

[26]

Determining penalty 127 The process to be applied in arriving at a penalty figure was considered in the context of criminal sentencing by the High Court in Markarian v The Queen (2005) 228 CLR 357. This "instinctive synthesis" approach is also relevant to the assessment of pecuniary penalties under s 224 ACL (for a recent example of this application I note the decision of Murphy J in Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (in liq) (No 2) [2015] FCA 257). 128 In Markarian, Gleeson CJ, Gummow, Hayne and Callinan JJ held, in summary, that: assessment of the appropriate penalty is a discretionary judgment based on all relevant factors; careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick (at [31]); it will rarely be appropriate for a Court to commence with the maximum penalty and proceed by making a proportional deduction from that maximum; the Court should not adopt a mathematical approach of increments or decrements from a predetermined range, or assign specific numerical or proportionate value to the various relevant factors; it is not appropriate to determine an 'objective' sentence and then adjust it by some mathematical value given to one or more factors such as a plea of guilty or assistance to authorities; the Court "may not add and subtract item by item from some apparently subliminally derived figure" to determine the penalty to be imposed; and since the law strongly favours transparency, accessible reasoning is necessary in the interests of all, and, while there may be occasions where some indulgence in an arithmetical process will better serve the end, it does not apply where there are numerous and complex considerations that must be weighed. 129 When applying this process to all relevant factors when exercising the discretion to impose a pecuniary penalty, consideration should be given to the one transaction (or one course of conduct) principle and the totality principle.

[27]

Nature of contravening conduct, and damage caused 130 First, the conduct of Spreets over a period of ten months affected consumers who purchased vouchers for specific services. In my view this is a significant period of time. 131 Second, this conduct occurred at a time when I understand that Spreets was a relatively new company in a relatively new industry, and did not have in place adequate systems or processes to prevent the admitted contraventions from occurring. However, notwithstanding the fact that Spreets was a new company, the material before the Court indicates that it was a company of some substance and indeed was one of the larger online group buying companies in Australia. 132 Third, the contraventions went to the core of Spreets' business and constituted conduct of Spreets involving a variety of contraventions of the ACL. 133 Fourth, it is likely that the contravening advertisements would have been viewed by a large number of consumers. Further, it is clear from the material before the Court that consumers suffered harm from these contraventions. While it is likely that not every consumer redeemed his or her voucher, it is apparent that 732 consumers did redeem vouchers which were subject to additional costs of between $25-$35 for all customers other than APF members. The parties have put to the Court - and I accept this submission - that if each voucher purchaser was required to pay "on the day" fees in addition to the purchase price of the voucher, then the total cost of these fees (across all vouchers) totalled $23,550 to those purchasers. Indeed the loss or damage suffered by the six individual consumers to whom I have referred in this judgment varied from $39 to $798 in each reported case, as a result of Spreets' misrepresentations about their rights. 134 Fifth, to the extent that Spreets misrepresented the nature of consumer guarantees available to consumers, I consider that these misrepresentations were serious, being contrary to the express effect of the consumer guarantees contained in the ACL. I note further that these misrepresentations continued after Yahoo had acquired Spreets, commenced reviewing its compliance practices and had identified historical compliance concerns with Spreets' business. 135 Moreover, the very nature of the conduct of Spreets in misrepresenting the nature of the consumer guarantees available to purchasers means that it is likely that consumers would not have sought assistance where they had an issue with the products or service the subjects of the deals. Whilst is it not possible to quantify the precise loss as a result of Spreets' representations, the parties agree that Spreets received a high volume of complaints specifically in relation to the Vivere Products Storage System Deal. In that instance, almost one in three consumers who purchased this product, totalling 103 customers out of 318 sales, contacted Spreets to request a refund and it appears that 22 of those customers had their request refused by Spreets.

[33]

Conclusions on appropriate penalties 146 I have already noted concerning the importance of penalties being of sufficient magnitude to achieve general deterrence in the relevant industry and to specifically deter repetition of the contravening conduct by the respondent. 147 The maximum penalty for a body corporate for each act or omission that relates to a provision of Pt 3-1 of the ACL, which includes s 29, is $1.1 million as per Item 2 of s 224(3) of the ACL. 148 In this case there has been a course of conduct which has resulted in the investigation and action by the regulator. As the majority of the Full Court explained in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at [41]: … the principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, the court must ensure that the offender is not punished twice for the same conduct. In other words, where two offences arise as a result of the same or related conduct that is not a disentitling factor to the application of the single course of conduct principle but a reason why a court may have regard to that principle, as one of the applicable sentencing principles, to guide it in the exercise of the sentencing discretion. 149 Applying these principles, the parties submit that it would be appropriate to group the various categories of contravening conduct of Spreets in order to assess penalty. More particularly, the parties submit that these categories are: conduct involving Melbourne City Skydive Centre, Coffs City Skydivers and Rainbow Beach Skydive deals; and representations concerning consumer guarantees; representations to individual consumers. 150 In my view it is appropriate to group the categories of conduct for the purposes of assessing penalties. 151 Further, in determining the appropriate penalty, it is also relevant to take into account the "totality principle", namely the Court should not order a total penalty for related offences which exceeds what is proper for the entirety of the contravening conduct involved: Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375; Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383. 152 Taking all of these factors into account, the parties submitted that a total pecuniary penalty in the amount of $600,000 is appropriate, comprising the following:

Representations about the price of deals: $40,000 for the contravention of s 29(i) of the ACL relating to the Melbourne City Skydive Centre Deal email advertisement; $60,000 for the contravention of s 29(i) of the ACL relating to the Melbourne City Skydive Centre Deal website advertisement and offer; $40,000 for the contravention of s 29(i) of the ACL relating to the Coffs City Skydivers Deal email advertisement; $40,000 for the contravention of s 29(i) of the ACL relating to the Coffs City Skydivers Deal website advertisement and offer; and $40,000 for the contravention of s 29(i) of the ACL relating to the Rainbow Beach Skydive Deal website advertisement and offer.
Representations about consumer guarantees: $50,000 for the contravention of s 29(1)(m) of the ACL relating to the Melbourne City Skydive Centre Deal voucher representations; $50,000 for the contravention of s 29(1)(m) of the ACL relating to the Travel Smoove Hong Kong Holiday Deal voucher representations; $50,000 for the contravention of s 29(1)(m) of the ACL relating to the Vivere Products Eight Cube Storage System Deal voucher representations; and $50,000 for the contravention of s 29(1)(m) of the ACL relating to the Deals in Australia Wine Aerator Deal voucher representations. 3. Representations to individual consumers: $180,000 for the contravention of s 29(1)(m) of the ACL relating to the representations to individual consumers. 153 In light of the seriousness of the contravening conduct, the fact that it was systemic in Spreets, the need for general and specific deterrence, and the size and financial position of Spreets, I consider it proper to order a total penalty of $600,000. I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Parties

Applicant/Plaintiff:

Australian Competition and Consumer Commission

Respondent/Defendant:

Spreets Pty Ltd

Legislation Cited (4)

Evidence Act 1995(Cth)s 191(3)(a)

Competition and Consumer Act 2010(Cth)

Federal Court of Australia Act 1976(Cth)ss 21, 43

Federal Court Rules 2011(Cth)r 40.02(b)

Cases Cited (17)

REASONS FOR JUDGMENT 1 Before the Court is an originating application filed on 30 July 2014 by the Australian Competition and Consumer Commission ("ACCC") against Spreets Pty Ltd ACN 142 688 524 ("Spreets"), in respect of alleged false representations and misleading conduct by Spreets. The ACCC seeks a number of orders by way of: Declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). Orders for civil penalties under s 224 of Sch 2 to the Competition and Consumer Act 2010 (Cth), comprising the Australian Consumer Law ("ACL"). Non-punitive orders under s 246 of the ACL. Costs. 2 The application relates to the alleged conduct of Spreets in respect of their supply, possible supply or promotion of the supply of Spreets' services, being the supply of vouchers to voucher purchasers, which the ACCC claims was in contravention of s 18 and s 29 of the ACL. 3 While it is necessary to shortly turn to examine the facts of this case in greater detail, I note in particular that before the Court are joint submissions and a statement of agreed facts and admissions pursuant to s 191(3)(a) of the Evidence Act 1995 (Cth) ("Evidence Act") filed 21 November 2014 on behalf of the ACCC and Spreets. Ms Brennan, Counsel for the ACCC, also tendered a draft short minute of orders at the hearing before me on 10 April 2015, with no objection from Mr May, Counsel for Spreets. 4 At the oral hearing both parties also noted the unresolved question whether the decision of the High Court in Barbaro v The Queen (2014) 305 ALR 323 affected the ability of the ACCC to make submissions as to the appropriate range and penalty in proceedings for a civil penalty. As was recently noted by the Chief Justice of this Court in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330 at [11], the majority of the Court of Appeal of Victoria expressed the view in Matthews v The Queen [2014] VSCA 291 at [29] that the comments in Barbaro were inapplicable to proceedings for civil penalties. As was the case in Coles Supermarkets, this issue has not been the subject of argument before me, and I make no findings in that regard for the purposes of this judgment. 5 In the circumstances of this case, I am of the view that I ought make the orders in the form tendered by the ACCC with the addition of an order that Spreets pay a pecuniary penalty in the amount of $600,000. Before turning to my reasons for doing so, it is useful to set out the background facts to this case, including the specific claims of the ACCC against Spreets.

[2014] VSCA 291

(2012) 201 FCR 378

(2013) 250 CLR 640

(2014) 305 ALR 323

(2010) 269 ALR 1

(1972) 127 CLR 421

(2004) 211 ALR 231

(2000) 172 ALR 532

(2005) 228 CLR 357

(2008) 168 FCR 383

(1996) 71 FCR 285

(2012) 287 ALR 249