The Australian competition watchdog has been given the all clear by the Federal Court of Australia to serve legal action over the local fallout of Apple’s “error 53” incident against the company in its home country.
On 21 April, Australian Federal Court Justice Moshinsky ruled that the Australian Competition and Consumer Commission (ACCC) should be able to serve court documents on Apple US in the United States over allegations the company engaged in misleading or deceptive conduct in Australia.
The move comes just weeks after the ACCC revealed it had commenced legal proceedings against the California-based tech giant and its local subsidiary, with the industry watchdog seeking pecuniary penalties, injunctions, declarations, compliance program orders, corrective notices, and costs against Apple.
Proceeding were subsequently brought against Apple Pty Ltd, the company’s Australian corporate entity, as well as Apple Inc (Apple US), its US-based parent company.
However, while the ACCC has served the originating application and its statement on Apple Australia locally, according to Federal Court documents, Apple US has not provided an address for service in Australia, even though court documents have been provided to a senior lawyer at Apple US.
Consequently, the ACCC sought leave to serve the court documents out of its jurisdiction in Australia, on Apple US in its home country.
In a decision dated 21 April, Moshinsky ruled that it is appropriate to give the ACCC leave to serve the court documents on Apple Inc in the US, out of jurisdiction.
“It is proposed to serve the court documents in the USA,” Moshinsky stated. “The proposed method of service is to use a private service agent retained through a firm of lawyers based in San Francisco.
According to Moshinksy, the ACCC has a “prima facie” case for the relief claimed against Apple US in the proceeding.
“There are two aspects to the case brought by the ACCC against Apple US,” Moshinsky said. “The first aspect concerns an alleged false or misleading representation by Apple US on the Apple website.
“The second aspect of the ACCC’s case against Apple US is as follows. It is alleged that Apple US is liable for certain conduct of Apple Australia on the basis that Apple Australia engaged in the relevant conduct both on its own behalf and on behalf of Apple US.
“In my view, it is appropriate in the circumstances to make such an order…the allegations against the respondents are closely intertwined. It is desirable that the claims against both respondents proceed together in the one proceeding,” he said.
The substance of the ACCC’s claims against Apple Australia and Apple US revolve around claims the companies made in relation to a fault, known as “error 53”, experienced by some iPhone and iPad users from September 2014 to at least February 2016, which rendered their devices inoperable.
The error 53 software fault occurred when those iPhone or iPad users attempted to update the iOS software on their device by connecting their device to Apple iTunes through a personal computer, according to the ACCC’s application.
“Apple US represented that iOS8 and iOS9 would improve the functionality and performance of iPhones and iPads,” the ACCC’s concise statement supporting its application said.
“When the iPhone or iPad users downloaded, and attempted to install, iOS8 or iOS9 on their device by connecting it to Apple iTunes through a personal computer, an error message appeared on Apple iTunes stating that the device could not be restored, and the device had stopped functioning.
“This occurrence was commonly referred to as ‘bricking’,” it said.