Lake v TPG Telecom Ltd (Civil Claims) [2025] VCAT 414

1. As a customer, Mr Lake has been purchasing NBN internet access from TPG Telecom since 14 May 2020,[1] and he remains a customer of TPG.
2. Mr Lake makes several claims against TPG. In the context of a civil claim in VCAT, where the relief most commonly granted to a successful applicant is an award of damages, the most significant claim is that Mr Lake experienced a loss of access to the internet periodically, which as well as causing him inconvenience meant that he was paying for services which he did not receive: for example, having paid for a month's access, a loss of access for a day would mean that he had overpaid by around one-thirtieth for that month (ie, depending on the length of the month). Mr Lake mitigated against loss of access by rigorously monitoring the amount of data he was using, and avoiding going over the limit which he was paying for under his "plan".
3. Mr Lake has not stated the number of days on which he lost access. It is common ground between the parties that Mr Lake's "plan" was costing him $29.99 per month [which equates to about $1.00 a day depending on the length of the month] and that TPG has offered Mr Lake $100.00 without admission of liability, which Mr Lake has declined to accept. As this offer would compensate Mr Lake for 100 complete days' loss of internet access, I am reckless enough to assume that Mr Lake has not lost internet access for 100 days and that this offer was within the range of what could be considered appropriate.
4. Mr Lake's other claims need to be considered. In my view none of them could lead to an award in his favour, in this civil claim in VCAT. That is not to say that Mr Lake could not refer TPG to a telecommunications regulator which might see his issues as being within their jurisdiction and which requires some intervention to protect consumers as a class.
5. One of the main reasons for VCAT being given its jurisdiction to hear civil claims[2] when it was established in 1998 was to enhance Victorians' ability to access the legal system by giving people an opportunity not to incur legal costs. Examples of the means by which this government policy appears or is reflected in the Victorian Civil and Administrative Tribunal Act 1998 are that VCAT is not bound by the strict rules of evidence, that corporations are not obliged to be represented by legal practitioners, and that VCAT is required to conduct proceedings with as little formality and technicality as a proper consideration of the matters before it permit, whilst complying with the rules of natural justice.
6. The Court of Appeal has stated that 'natural justice' does not require the inflexible application of a fixed body of rules, but instead requires fairness in all the circumstances.[3] The Court of Appeal has also observed that it is an essential requirement of a fair hearing that each party be given a reasonable opportunity of presenting its case, whether in writing, orally, or both and that what is 'reasonable' for this purpose will depend on the circumstances of the case which include both the significance to a party of any adverse decision and the competing demands on the time and resources of the Tribunal.[4] An important aspect of the concept that a party be able to present its case is that the party not be 'ambushed' by their opponent raising new issues at the last minute or the Tribunal deciding the case on a basis which the parties did not argue. The Tribunal makes 'timetabling Orders' which require parties to disclose their claims and defences, and their relevant documents, well before the hearing. A real challenge for the Tribunal arises when litigants fail to comply with those timetabling Orders. Justice delayed is justice denied[5] and the Tribunal seeks to avoid adjourning hearings, when it is possible and legally correct to do so.
7. VCAT must of course apply the law. Sometimes people who represent themselves misunderstand, or are not aware of, relevant legal principles. Whilst by no means common, one such error can be not to recognise the distinction between a citizen's private legal right to claim compensation when a legal obligation owed to them has been breached - for example, by a breach of contract or a failure to comply with legislation -, and a civil prosecution by a regulator when a breach of the law which can be punishable by a monetary penalty or the imposition of corrective measures. In some respects, Mr Lake has failed to appreciate this distinction. For example, Mr Lake has sought Orders from VCAT which would compel TPG to change colours and font sizes in some of its documents. Orders of that kind might be made (or agreed to) in a civil prosecution by a regulator, but not in a civil claim such as Mr Lake's.
8. Whilst TPG's marketing material speaks of Mr Lake having an "NBN bundle", and having chosen a "plan" which gives him the ability to use certain amounts of data, as distinct from other "plans" which provide other services at different costs, the law recognises Mr Lake and TPG being in a contractual relationship.
9. A contract is a legally enforceable agreement. Contracts can have express terms. The law of contract is so flexible that a contract can also have very few express terms, with other terms being implied by law.
10. The law also recognises Mr Lake as a consumer of services being supplied by TPG in trade or commerce. The Australian Consumer Law and Fair Trading Act 2012 (Vic), which can be understood as the "current version" of Victorian consumer protection legislation first enacted in the 1970s, gives Mr Lake certain rights. In addition, that Victorian Act makes the text of the Australian Consumer Law which appears in Schedule 2 of the Competition and Consumer Act 2010 (Cth) a law of Victoria, and calls it the Australian Consumer Law (Victoria). The provisions of the Australian Consumer Law (Victoria) relevant to most people are:

(a) Section 18, which provides that "A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive".

(b) Section 236, which relevantly[6] provides that "If a person [the claimant] suffers loss or damage because of the conduct of another person and the conduct contravened (amongst others, section 18) the claimant may recover the amount of the loss or damage by action against that other person...". In this section, the words "because of" are especially important as they signify that the loss must be caused by the conduct.

(c) Sections 60 and 61, which are 'consumer guarantee' provisions. Rather than these sections imposing obligations on suppliers by stating that the obligations are "implied terms" of the parties' contract, these sections impose the obligations by pronouncing them to be guarantees. Put simply, sections 60 and 61 provide that if a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill, and that they will be reasonably fit for purpose.

1. The words "in trade or commerce" basically mean 'in business'. The phrase creates two distinctions. First, for example, when people sell their own house and engage a real estate agent to market the property, the estate agent acts in trade or commerce but the owners of the property do not. Secondly, the estate agent who periodically turns over the car that they use to attend properties does not sell the car in trade or commerce. The sale of the car might be said to relate to the agent's trade, but the agent is not in the business of selling cars. Referring back to section 18, it follows that the prohibition imposed by that section is only applicable to a person who engages in the prohibited conduct "in" trade or commerce.
2. Because Mr Lake refers to some "fine print" in one of TPG's documents, I mention that section 163 of the Fair Trading Act 1999 - which was repealed and largely replaced by the Australian Consumer Law and Fair Trading Act 2012 (Vic) - used to provide that printed or typed statements, notices and other documents required by the Act had to be "in print or type of a size not less than 10 points". However, that requirement was not included in the Australian Consumer Law and Fair Trading Act 2012 (Vic) when the 1999 Act was repealed.
3. I note in passing that section 23 of the Australian Consumer Law (Victoria) provides that a term of a standard form consumer contract is void if it is unfair.
4. Mr Lake issued this proceeding in December 2022, and regrettably it was not heard until 31 March 2025. Over the intervening period, Mr Lake's understanding of his position evolved, and some facts emerged whilst others became irrelevant, and by the date of the hearing Mr Lake's claim was set out in Amended Points of Claim submitted on 10 February 2025. TPG consented at the hearing to that document standing as the statement of Mr Lake's claim.
5. TPG had filed Points of Defence to the original Points of Claim,[7] but not to the Amended Points of Claim. TPG was not in breach of an obligation in that respect, because Mr Lake filed and served his Amended Points of Claim without leave (ie, permission).[8] TPG's defence was still understandable, and Mr Lake was not disadvantaged by the absence of Amended Points of Defence.
6. Mr Lake's claim, as presented at the hearing, was as follow.

The contract document between Mr Lake and TPG could not be understood

1. The document, being appendix 2 to the Amended Points of Claim, is designed to be seen in landscape rather than portrait, and Mr Lake had filed a copy printed on an A4 sheet.
2. The top half of the page contains three boxes, summarising three different "plans". Mr Lake's plan is in the box on the left side. Its heading is "10GB" and a few lines below the heading there is text which explains that the customer receives "10.9Mbs Basic typical evening speed" for the monthly fee of $29.99.[9] The other two boxes are for "plans" which entitle the customer to 100GB and Unlimited data usage, at higher monthly fees.
3. The bottom half of the page contains the "fine print" which concerns Mr Lake. Underlying his concern is that when under his plan he uses up his entitlement to 10.9Mbs, he experiences his access to the internet being shut down.
4. It struck me during the hearing that Mr Lake's plan did not operate so that he received10.9Mbs for his monthly fee, and that if he exceeded 10.9Mbs he was charged more. Similarly, the plan did not operate so that if Mr Lake used less than 10.9Mbs, he received a credit for the unused portion.
5. A footnote against the words "10.9Mbs" in the boxes directs the reader to the "fine print" on the bottom half of the page.
6. The second line of the fine print, which applies to Mr Lake's "plan", says this:

Monthly usage quote: 1GB(Gigabyte) = 1000MB (Megabyte) . Unused quota forfeited each month. Speed will be shaped to 32Kbps/32Kbps for the billing cycle in which the monthly usage quota has been exceeded. Downloads and uploads are counted.

1. The third line of the fine print, which applies to the 100GB "plan" which is more expensive than Mr Lake's "plan" , says this:

Monthly usage quote: 1GB(Gigabyte) = 1000MB (Megabyte) . Unused quota forfeited each month. Data allowance consists of peak (8:30am - 2:30am) and off-peak (2:30am-8:30am) monthly usage quote. Speed will be shaped to 128Kbps/128Kbps for the period in which the monthly usage quota has been exceeded (peak and/or off-peak). Downloads and uploads counted. TPG may, on giving you 7 days notice by email, adjust the start/finish (but not the length) of peak/off-peak times.

1. The differences, then, between those two "plans" are that in Mr Lake's "plan" TPG charges all data uploads and downloads at the same rate, whereas the 100GB "plan" charges less for data usage at off peak times, and that if internet speed is shaped, it is shaped at a lower figure in Mr Lake's "plan". As I said, Mr Lake's experience when his speed was shaped was that his access to the Internet was shut down.
2. Mr Lake says, and I accept, that the fine print is in font size 5, which is indeed very small. [These Reasons will be printed in at least font size 11].
3. Because the document is designed to appear in landscape, Mr Lake says that it is not possible conveniently to read the clauses I have quoted above. He says that one loses one's place when reading such small text across a wide page. Perhaps a ruler could be placed under each line by the reader.
4. Mr Lake also says that the meaning of the word "shaped" in the fine print was obscure, and in fact unintelligible to Mr Lake, until TPG explained the concept to him leading up to the hearing.
5. Mr Lake argued that the shaping of his data, leading him to experience loss of access to the internet, constituted a contravention by TPG of its consumer guarantees under sections 60 and 61 of the Australian Consumer Law (Victoria), and that it was unfair. Mr Lake said that once he understood the meaning of "shaped" he took steps to monitor his data usage using a free app called Bitmeter and since doing so he has not exceeded his data usage and so has not lost his access to the internet. This has not been without inconvenience, though, because Mr Lake has used the computers at the public library, rather than his own computer, to minimise his data usage.
6. TPG's response to this point was that while the "fine print" on the document printed on paper is in font size 5, the document is intended to be read on a computer screen, and that the user can expand the document on their computer. Further, a reader can scroll across the computer screen to read the clause. Finally, in Mr Lake's contract "shaping" means that when Mr Lake has used up his entitlement to data, the speed is reduced to 32Kbps (and to a reduced but still higher speed in the 100BG "plan") which does have the effect of turning off access to the internet. According to TPG this is appropriate: the customer has sent or received the amount of data they have paid for, and once the customer reaches that point they are not entitled to more data in that month.
7. TPG asked Mr Lake what he thought would happen when he reached the limit of his data usage in a month. Mr Lake answered that would have thought about it. I take his answer to mean that he would have taken steps earlier in the month to monitor his data usage so that he did not exceed his monthly entitlement.
8. My conclusion on this part of Mr Lake's claim, is this:

(a) When the parties entered their contract, there was no relevant legislation dictating the size of the font that TPG had to use in the plan document. Therefore, even though Mr Lake found it unhelpful and inconvenient - as would any person relying on the paper version of the document - TPG's use of font 5 is not a breach of an obligation.

(b) Whilst section 23 of the Australian Consumer Law (Victoria) provides that a term of a standard form consumer contract is void if it is unfair, the clause in the second line of the fine print is not unfair within the meaning of that section. Even though the word "shaped" is an example of IT or communications jargon, the clause is not incomprehensible. Many industries use words in a particular way. It is even suggested that the legal profession has been known to do so. That does not make every clause that contains a technical word or some industry jargon void.

(c) Additionally, Mr Lake has not suffered any compensable loss because of the second line of the fine print. Mr Lake may have spent some time, and possibly a little money, going to and from the library. But he had entered a contract with TPG to "buy" 10GB of data per month, and once he found that he was using more, he could have changed his plan or gone to another supplier. He did not lose anything. Rather, he chose to use the library to acquire some free data usage, rather than pay for data exceeding 10GB per month.

1. Mr Lake says that in mid-2022 TPG advised that there would be a new way for customers to be able to monitor their data use ( he uses the expression "to access data"), with a PIN sent to a mobile phone. Mr Lake is deaf and does not have a mobile phone. Accordingly, he has not been able to monitor TPG's record of his data use since then. He has used his own means of monitoring his date usage - Bitmeter - but that is not the same as seeing TPG's record.
2. I pause here to note that I made an interim Order in the hearing, by consent, requiring TPG to send Mr Lake a document setting out its record of the megabytes downloaded and the megabytes uploaded by Mr Lake under his account for a 2 year period, and for Mr Lake to notify TPG if he disagreed with it. The parties exchanged information under the interim Order. TPG said that "no upload information is being measured for (Mr Lake's) service and is not counted towards (his) monthly usage" ,[10] Mr Lake was critical of this,[11] but if TPG was not counting uploads it must follow that Mr Lake might have exceeded his data limit more often in reality than his occasional loss of internet access suggested.
3. Mr Lake says that this new practice of TPG was discriminatory, because it was detrimental to customers who did not use mobile phones.
4. TPG's reply was that it could not make special arrangements for individual customers to allow them to access data. What it had done was to make it possible for all customers to access a range of information, including the data usage sought by Mr Lake, from TPG's website but that to protect the privacy of the customers' information it adopted an identity verification protocol of the kind used by banks and other organisations. When a customer sought to access data from the website, TPG would automatically send a code number to the customer's mobile telephone, and the customer would type that code number into a portal on the website. It is not to the point for Mr Lake to say that his required information was 'low risk', because once a person has logged into TPG's website via the portal, a range of tasks can be performed.
5. My conclusion on this part of Mr Lake's claim, is this:

(a) TPG has not breached its contract with Mr Lake, contravened section 18 of the Australian Consumer Law (Victoria) or failed to meet an applicable consumer guarantee.

(b) Even if TPG had not complied with the consumer guarantee under sections 60 or 61 of the Australian Consumer Law (Victoria) by not charging Mr Lake for data used to upload information, Mr Lake did not suffer 'damages', as that term is understood in civil litigation.

(c) The Civil Claims List of VCAT does not deal with claims of discrimination. The Human Rights List does. Mr Lake would need to carefully consider the Equal Opportunity Act 2010 (Vic), particularly the concept of "attributes" in section 6 and "discrimination" in section 7.

1. Mr Lake's claim under this heading is somewhat tied to his use of Bitmeter to monitor his data usage in the context of his difficulty in obtaining that information from TPG.
2. Appendix 7 to the Amended Points of Claim was an extract of a usage statement which Mr Lake had received from TPG around June 2022. The document contained columns, with headings including Log on Time and Connected Time. It also had columns for Peak and Off-Peak, although all of the information relevant to Mr Lake was in the Peak column. As there are 3 entries for 8 June 2022, Mr Lake read the document as asserting that he had been downloading data for 47 hours in one 24-hour day. Meanwhile, appendix 8 was a list of times that Mr Lake had obtained from his "mail reader", containing 5 entries for 8 June 2022 with the earliest being at 12:29am and the latest at 9:06am. I understand this document to be showing the times at which Mr Lake sent emails, because the document contains 3 columns, the last 2 of which are "From" and "Recipient". All 5 entries are in the From column. It follows that appendix 8 does not contain the same type of information as appendix 7.
3. TPG's response to this claim is that the perceived inconsistency between appendix 7 and appendix 8 does not show that TPG's data is inaccurate. TPG says that computer modems refresh automatically, and the system records the modem refreshing as connecting or logging on. The times at which the modem refreshes and so connects with the system are not an indication of the periods of time of usage / connected time. Mr Lake has misinterpreted the TPG document which appears as Appendix 7 to the Amended Points of Claim.
4. In Mr Lake's "plan" all data usage is charged at peak rates, hence the Off-Peak columns being blank.
5. I accept TPG's defence to this claim. Mr Lake has the burden of proof, and the different functions of the documents in appendix 7 and appendix 8, plus the fact that Mr Lake's "plan" does not charge at off-peak rates as appears in the discussion above about the contract document, appendix 2, convinces me that TPG's position is correct.

1. Appendices 10 and 11 to the Amended Points of Claim are a graph showing Mr Lake's data usage by month, in February and March 2022, and daily data usage in April and May 2022. They have been printed in purple.
2. Mr Lake says the documents are very difficult to read because they are printed in purple rather than black, and that appendix 11 is made even more difficult to read because the chart is very small.
3. TPG's response is that in 2022 when these documents were issued, purple was a corporate colour used by TPG. It is not prohibited from using any colour in its documents. Documents of this kind are almost obsolete now because TPG's customers can obtain information using the portal.
4. In closing, Mr Lake said that his complaint about the charts was 2 years old and now that he successfully uses Bitmeter, he is no longer concerned with this issue.
5. Whilst Mr Lake essentially withdrew this part of his claim, I would have dismissed it. I accept TPG's argument that it is not prohibited from showing documents in purple. If TPG breached an obligation, Mr Lake was not caused any 'damages' as understood in civil litigation.
6. There was a mention in the hearing that Mr Lake had suffered some inconvenience in various respects, and during the hearing I had referred the parties to a High Court case setting out the very limited circumstances in which a person might be compensated for inconvenience. In case the parties want to examine the High Court's judgment, the case is Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344, and it can be found on the website Austlii under [1993] HCA 4.

1. After discussing the legal principles underlying the claim for damages based on loss of income, Mr Lake said that, on reflection, the performance of his TPG account had not caused him a loss of income. For example, this was not a case in which Mr Lake practices as a consultant and confers with clients over the internet, and lost clients or work when he experienced loss of access to the internet. He had suffered some inconvenience, but not a loss of income, by attending the library to use the internet.

1. Towards the end of the Amended Points of Claim was a list of issues in relation to which Mr Lake would like to see improvement. If this part of his claim was read in a very lawyerly fashion, you could say that he was seeking mandatory injunctions. However, read in the spirit in which they were intended, these claims by Mr Lake are for TPG to introduce the sorts of "behaviours" which a regulator might seek in a civil prosecution against a corporation, or which a corporation might agree to introduce as part of a settlement agreement with such a regulator. Examples included orders that TPG had to clearly advise their customers whose accounts set data limits when their limit was about to be reached; that the contract document (appendix 2) be redesigned so that its text was in larger font and its margins several centimetres from the edges of the pages; and that TPG publishing documents in purple and adopt black ink.
2. VCAT does have jurisdiction to grant injunctions, both on interim and final bases, and in forms which prohibit behaviour or compel behaviour. However, Mr Lake has not established the grounds for injunctions of the kinds described above.
3. These parts of Mr Lake's claim must be dismissed.

1. Whilst TPG responded to Mr Lake's issues as described above, at the end of the hearing it made some final comments. The first was whilst this case was issued in 2022, Mr Lake remains a customer of TPG. He has never seen the need to end the contract with TPG and go to another supplier.
2. Mr Lake replied that on balance he is happy to remain a customer of TPG, but he does wish that they would make an effort to resolve some issues and to improve.

1. Returning to my interim Order of 31 March 2025 under which the parties exchanged information, I note that Mr Lake's responding document sent at 6:06am on 22 April 2025 was headed "Further information" and amongst its 50 numbered paragraphs Mr Lake sought to raise new issues, and ask question of TPG, which were not contemplated by that interim Order. As well as the principles of natural justice requiring that a party not be 'ambushed' by their opponent raising new issues, there is also a public interest in litigation being finalised. I will not reopen this case, after the hearing on 31 March 2025.
2. Mr Lake might wish to seek legal advice if he considers that he has other claims which can be made in VCAT.

1. It is regrettable that this case took so long to come to hearing. All of the issues which Mr Lake wanted raised were raised in the hearing.
2. At the end of the hearing I made the interim Order requiring TPG to file with the Tribunal and serve on Mr Lake a document setting out its record of the megabytes downloaded and the megabytes uploaded by Mr Lake under his account. Mr Lake received that document and replied.
3. TPG offered Mr Lake a payment of $100.00, which Mr Lake rejected. He cannot compel TPG to repeat its offer and VCAT cannot order TPG to pay Mr Lake $100.00 merely because it had offered to pay that sum.
4. For the reasons set out above, I dismiss Mr Lake's claim.

[1] This is stated in TPG's "Statement" (ie, properly called Points of Defence) dated 4 September 2023. Mr Lake had not alleged the starting date of his dealings with TPG. He did not deny this allegation by TPG.

[2] This is called its "original jurisdiction" because the Tribunal makes the first decision in a dispute. The Tribunal also has a "review jurisdiction" in which it considers decisions made by others, such as a government body which refuses to grant a licence.

[3] Herald and Weekly Times Limited v Victorian Civil and Administrative Tribunal [2006] VSCA 7 at paragraph 41.

[4] Roberts v Harkness [2018] VSCA 215

[5] Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229

[6] I only quote the relevant text, omitting the internal numbering '(a)' & '(b)' and inserting the text in (round brackets). The words in [square brackets] are in the original.

[7] The "Statement" dated 4 September 2023.

[8] Because of the volume of cases in the Civil Claims List, the Tribunal's registry necessarily sends standard form documents to parties. The Notice of the hearing held on 31 March 2025 was a standard form document. If registry had the capacity to spend the time to edit a Notice so that it suited the particular case, it would have resulted in the Notice simply telling the parties the date and time of the hearing. The standard form version sent by the registry was more suited to a new small claim, in which parties had not filed or served any documents by the date of the notice. The Notice of Hearing sent to the parties contradicted previous timetable Orders which Members of the Tribunal had made, and unsurprisingly it caused confusion to Mr Lake, who believed the Notice of Hearing to be an Order which imposed its own timetable.

[9] In its Points of Defence TPG said the price of $29.99 per month was for the first 18 months from 14 May 2020. In an email to the Tribunal dated 12:26pm on 8 December 2022 Mr Lake said that he was paying $35.00 per month.

[11] Paragraph 38 of Mr Lake's responding document emailed at 6:06am on 22 April 2025.