ACCC v Superfone Pty Ltd [2020] FCA 278: Penalties For Misleading Communications, Cold Calls

Thursday 1 April 2021 @ 7.40 a.m. | Legal Research | Trade & Commerce

In ACCC v Superfone Pty Ltd [2020] FCA 278 (26 March 2021), telecommunications provider Superfone (“Superfone”) has been ordered to pay a $300,000 penalty for making “false and misleading representations and breaching laws designed to protect consumers from unsolicited telemarketing sales, in proceedings which were brought by the ACCC” by the Federal Court of Australia (“the Court”).

The Court’s decision was focused on the actions taken by telemarketing companies acting on behalf of Superfone, including cold-calling consumers between June 2017 and December 2018, when the telco reseller offered discounted plans on their existing network if prospective customers signed up to a new contract through Superfone.


In June 2020, the Court declared that Superfone had contravened the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) by “making unsolicited consumer agreements”.

According to an ACCC Media Release, in December 2019 the ACCC instituted proceedings in the Court against Superfone after complaints were made by consumers that the company had transferred their services without their informed consent.

According to the media release, more than 1,400 consumers (including many elderly people), were contacted by Superfone’s telemarketing agents. Murphy J said at [para 70] of the judgment:

“… Superfone targeted vulnerable consumers, or at least were only successful in securing Agreements with vulnerable consumers, who as a class were less capable of protecting their consumer rights. There is or at least may be a predatory dimension to Superfone’s marketing strategy”.

Comment from the ACCC

ACCC Deputy Chair, Delia Rickard said in the Media Release:

“Superfone’s behaviour was unacceptable. After making unsolicited calls, it misled consumers into entering contracts which the consumers did not want, and did not provide them with information about the ten-day cooling-off period or their rights to terminate the contract. When some consumers tried to cancel their contracts, they were charged termination fees.”

The company admitted liability, but contested the penalty amount and other orders – see [para 36] of the judgment:

“Superfone opposes the ACCC’s application for imposition of a pecuniary penalty of $400,000. It does not contend that it is inappropriate to impose a pecuniary penalty, rather it argues that a penalty of $60,000 is appropriate.”

The Judgment

Commenting on the unsolicited phone calls, Murphy J said at [para 4]:

“The admitted contraventions stem from unsolicited telemarketing calls made to consumers by sales representatives … At Superfone’s direction, the sales representatives made unsolicited telephone calls … to prospective consumers in Australia …”

His Honour also noted Superfone’s remorse at [para 84]:

“Superfone has apologised and expressed remorse for the contravening conduct. It also consented to consumer redress orders which is further evidence of contrition...”

Consumer Redress

As well as imposing the penalty, the Court also ordered Superfone to email consumers who entered into an unsolicited agreement with them (and subsequently paid a termination fee on cancellation of their contract) advising them to contact Superfone for a full refund of the termination fee.

The company is also required to email other consumers whose unsolicited agreement have expired but who are continuing to receive services from Superfone on a month-to-month rolling basis, offering them the opportunity to exit their contract with Superfone without charge.

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