The Australian Competition and Consumer Commission (ACCC) has
advised that EnergyAustralia Pty Ltd has been ordered by the
Federal Court of Australia to pay $1 million, and Bright Choice
Australia Pty Ltd (EnergyAustralia's former telemarketing
company) has been ordered to pay penalties of $100,000, for conduct
found to be in contravention of the Australian Consumer Law.
Representatives of Bright Choice, acting as agents of
EnergyAustralia, made marketing telephone calls between August 2012
and April 2013 to consumers in Victoria, New South Wales, and
Queensland regarding EnergyAustralia's electricity and gas
Bright Choice stated to those consumers that they were calling
as representatives of EnergyAustralia, and made the following
representations to those consumers:
that the purpose of the call was not to sign up the consumer to
an energy agreement;
that the consumer would be sent information and could then
decide whether or not to sign up to an energy agreement; and
that neither Bright Choice nor EnergyAustralia would treat
consumers as if they had agreed to enter into a new contract with
EnergyAustralia, unless they communicated further with the
Despite this, consumers were treated as having agreed to switch
to EnergyAustralia. Bright Choice's records of the calls noted
that those consumers had agreed to enter into a contract with
EnergyAustralia, and consumers were then sent a Welcome Pack
containing contractual documents.
The Court held that EnergyAustralia and Bright Choice had made
false or misleading representations, and engaged in misleading or
deceptive conduct when selling EnergyAustralia's electricity
and gas plans to consumers.
The Court imposed an injunction on Bright Choice prohibiting
them from engaging in similar conduct for five years, and ordered
that Bright Choice establish a three year ACL compliance program.
Both EnergyAustralia and Bright Choice were ordered to contribute
to the ACCC's costs.
EnergyAustralia and Bright Choice consented to the orders made
against them by the Court, and cooperated with the ACCC to file
joint submissions and a statement of agreed facts.
The ACCC Chairman Rod Sims commented that "this decision
demonstrates that companies cannot avoid their obligations under
the Australian Consumer Law by engaging sales agents" and that
"the Court has now ordered significant penalties against some
of Australia's largest energy retailers for misleading sales
tactics...[and] the ACCC will take action to ensure compliance with
the Australian Consumer Law".
This decision follows several other actions taken by the ACCC in
2012 and 2013, which included taking action against Neighbourhood
Energy, Australian Power & Gas Company, AGL, and Origin Energy
regarding their door to door marketing conduct, resulting in the
ceasing of such marketing activities by many of these energy retail
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The Federal Court decision is likely to encourage the ACCC to maintain unconscionable conduct as an enforcement priority.
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