In the media
ACCC to 'up the ante' against cartels:
report
A global law firm has released data on cartel activity around the
world, predicting increased activity from Australia's corporate
regulator in the second half of 2017. However, Allen & Overy
said the regulator may be more active over the rest of the year as
it is waiting on several judgments and penalty outcomes, including
its successful High Court case against Flight Centre for attempted
price-fixing (26 July 2017).
More...
See also Allen & Overy Global Cartel Enforcement 2017 Mid-Year report. The report notes that in the past six months the ACCC has issued only one cartel fine, but that increased activity is expected in the second half of 2017 as the ACCC awaits judgments and penalty outcomes in a number of proceedings (including the Flight Centre case).
ACCC focus on Brownes WA dairy contracts
The Australian Competition and Consumer Commission investigates new
Brownes milk producer contracts, as part of its on-going national
inquiry into the dairy industry (26 July 2017).
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ACCC takes action against Ford
The ACCC has instituted proceedings against Ford Motor Company of
Australia Limited (Ford) alleging that it engaged
in unconscionable and misleading or deceptive conduct, and made
false or misleading representations in its response to customer
complaints. The ACCC alleges that Ford misrepresented to customers
who made complaints that the issues with their vehicles were caused
by the way the driver handled the vehicle, even though Ford was
aware of systemic issues with the vehicles from at least 2013 (26
July 2017).
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ACCC to hold first public hearing into power
prices
The ACCC held its first
public hearing into power prices in Brisbane as part of its
inquiry into national electricity prices,
ordered by the Treasurer in March. Several other forums are
scheduled over the coming months. The ACCC has also released an
overview of the submissions made in response to the issues
paper (25 July 2017).
ACCC Begins Court Action against Heinz over Sugary
Products
Legal action against H.J. Heinz Company Australia Ltd
(Heinz) commenced on Monday 24 July 2017, with the
Australian Competition and Consumer Commission
(ACCC) alleging the "Little Kids Shredz"
range misleads the public about the nutritional content of the
product (25 July 2017). More...
Egg producer penalised $750,000 for misleading 'free
range' claims
The Federal Court has ordered Snowdale Holdings Pty Ltd to pay
penalties totalling $750,000 for making false or misleading
representations that its eggs were 'free range', in
proceedings brought by the Australian Competition and Consumer
Commission (25 July 2017).
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Lululemon pays infringement notices
Lululemon Athletica Australia Pty Ltd (Lululemon)
has paid penalties totalling $32,400 following the ACCC issuing
three infringement notices for alleged false or misleading
representations about consumer guarantee rights. The ACCC alleges
that Lululemon made representations to customers that they were not
entitled to a refund or replacement for products under any
circumstances, when that was not the case (24 July 2017).
More...
ACCC says Small Businesses just need a level playing
field
The Australian Competition and Consumer Commission has taken action
over the last six months to ensure small business have a level
playing field, as revealed in the 14th edition of the ACCC's
Small Business in Focus report (24 July 2017).
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Ezy Lite Pty Ltd and Adnan Dennaoui - Court
outcome
A building cladding company and its director have been convicted
and fined a total of $70,000, after pleading guilty to making false
and misleading representations about the fire ratings of some of
its products (21 July 2017).
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ACCC warns big four telcos over NBN internet speed
failures
The competition watchdog warns Australia's largest four telcos
they could find themselves in court for failing to deliver on their
NBN speed promises (20 July 2017).
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ACCC on changing telecommunications market
dynamic
Australian Competition and Consumer Commission Chairman Rod Sims
said he believed it was important that the promotion of competition
in relevant markets is included within the new spectrum framework.
Anti-competitive behaviour can be prevented in many ways, including
through spectrum caps, or establishing rules specifying how
spectrum can be traded by licensees (20 July 2017).
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ACCC statement on Aldi Flushable Wipes
The ACCC has this week, raised concerns with ALDI regarding its
promotion of ALDI Green Action Flushable Bathroom Cleaning Wipes
(100pk) in its Special Buys catalogue. The ACCC's concerns stem
from the use of the term 'flushable', in particular the
concern that such a claim may mislead consumers if the claim cannot
be substantiated. The ACCC is already pursuing alleged misleading
'flushable' claims more generally, with
two proceedings currently before the Federal Court against
Pental and Kimberly-Clark Australia Pty Ltd (19 July 2017).
More...
Uber surge pricing to be capped in Victoria after Metro
chaos
Exorbitant fares on Uber during major traffic incidents and public
transport delays could be stamped out by new Victorian laws, the
Andrews Government declares. The ridesharing company uses
"dynamic pricing", which means that when demand is higher
fares increase. Users are given a quoted price before they accept a
fare. Victorian Public Transport Minister Jacinta Allan said the
surge pricing behaviour was unacceptable (18 July 2017).
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Further action to create a more competitive banking
system for Australians
More competitive loans and other financial products for Australians
will be encouraged through new reforms announced by the Turnbull
Government in the 2017 Budget (17 July 2017).
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Huntley Management Ltd ordered to pay penalty for false
and misleading advertising
The Federal Court of Australia has ordered Huntley Management
Limited (Huntley) to pay a penalty of $50,000 for
false and misleading advertising that its investment projects were
'approved by the Australian Securities and Investments
Commission' Huntley, which is a responsible entity of various
managed investment schemes, admitted that the statements were false
and misleading (14 July 2017).
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In practice and courts, published reports
2017 AEMC retail energy competition review - final
report
Australian Energy Market Commission: 25 July 2017
The AEMC has released its fourth annual review of the state of
competition in retail energy markets across the national
electricity market. This review report makes a number of
recommendations to make it easier for customers to take advantage
of competition and make the best energy choices for their household
or business.
More...
Electricity supply and prices inquiry public
forums
The ACCC is inviting electricity customers to participate in a
series of public forums as part of the Electricity supply and
prices inquiry. Attendees will have the opportunity to raise
competition and pricing issues in the retail electricity sector
with ACCC Commissioners. Following the forums, a summary of issues
discussed at the forums will be published on the ACCC website.
Consultations close 14 August 2017.
More...
NSW Fair Trading: Have your say on retirement village
reforms
NSW Fair Trading is inviting public comment on draft reforms
affecting the state's retirement villages. The new regulation
will retain a number of existing provisions, while also making
amendments to reduce excessive administrative requirements for
operators, and improve protection for both prospective and current
residents.
More...
Cases
Island Helicopters Pty Ltd v Central (Qld) Aviation Pty Ltd &
Anor [2017] FCCA 1665
CONTRACTS – Lease agreement in relation to helicopter –
term that lessor at its cost would take out hull insurance for
helicopter - whether it was a term of the lease agreement that the
helicopter could operate only in Australia – whether lease
agreement was varied to the effect that lessee agreed to pay
additional insurance premium that became payable by lessor because
the helicopter was to operate in Papua New Guinea
(PNG) – no variation of lease
agreement.
CONTRACTS – Discharge of lease agreement by repudiation
– helicopter destroyed as a result of crash – lessee
makes no payments under lease agreement for period after date on
which helicopter crashed – whether by not making such
payments lessee repudiated the lease agreement – whether
lessor elected to terminate the lease agreement on account of
claimed repudiation by lessee of lease agreement so as to entitle
lessor to loss of bargain damages – no evidence lessor
elected to terminate lease agreement.
CONTRACTS – Discharge of lease agreement by frustration -
whether because helicopter was destroyed as a result of a crash the
lease agreement was discharged by frustration – whether at
the time the helicopter was destroyed the lessee bore the onus of
proving it did not induce the crash – lease agreement
frustrated.
CONTRACTS – Whether under the lease agreement the lessor was
required to insure not only the Helicopter but equipment that was
also hired to the lessee under the lease agreement.
CONSUMER LAW – Misleading or deceptive conduct –
whether terms in lease agreement constituted representations as to
future matters – whether lessee adduced evidence it had
reasonable grounds for making the representations constituted by
the terms of the lease agreement – whether lessor relied on
the terms to deliver the helicopter to lessee – whether
lessor suffered any loss by relying on the terms.
CONSUMER LAW – Misleading or deceptive conduct and
unconscionable conduct – whether lessee represented to the
lessor it would pay additional insurance premium that became
payable by lessor because the helicopter was to operate in PNG
– whether lessor suffered any loss or damage. Civil
Aviation Act 1988 (Cth), ss.3, 6, 7, 7(b); Federal Circuit
Court of Australia Act 1999 (Cth), s.76(3); Trade
Practices Act 1974 (Cth), ss.51AA, 51AC, 51A, 51A(2), 52,
52(1), 82.
Melbourne City Investments Pty Ltd v Myer Holdings Limited
[2017] VSCA 187
PROCEDURE – Abuse of Process – Applicant created as
vehicle for bringing class actions against listed corporations
– Applicant held shares in respondent purchased for less than
$1,000 –Applicant not concerned with being compensated for
loss nor with bring the proceedings for the benefit of the group
members – Applicant sought to profit through orders for
payment to it for acting as representative plaintiff and funding
litigation – Proceeding stayed by trial judge as abuse of
process because predominant purpose for bringing proceeding to gain
collateral advantage that was improper – Proceedings are
designed to redress wrongs - Relief applicant sought not for that
purpose but to gain benefit of ancillary orders – Such relief
'outside the scope of the remedy' as discussed in the
authorities – Appeal dismissed - MCI is the lead plaintiff in
a securities class action against Myer. It alleges that Myer
breached its continuous disclosure obligations under the
Corporations Act and that Myer engaged in misleading and deceptive
conduct.
Australian Competition and Consumer Commission v Snowdale Holdings
Pty Ltd (No 2) [2017] FCA 834
CONSUMER LAW – pecuniary penalty – representations made
that the eggs sold were "free range" eggs –
consumers paid a premium price on the basis that the eggs were free
range eggs – loss to consumers by contravening conduct
– benefit to contravenor – revised agreed penalty
– deterrence – whether revised agreed penalty an
appropriate penalty. Australian Consumer Law ss 18(1),
29(1)(a), 33, 134, 219(2), 224(1), 224(2) (Sch 2 of the
Competition and Consumer Act 2010 (Cth)); Competition
and Consumer Act 2010 (Cth) s 155(1)(b).
Central Queensland Development Corporation Pty Ltd (formerly
Bluechip Development Corporation Gladstone) Pty Ltd v BMT &
Assoc Pty Ltd [2017] NSWSC 992
(1) Order pursuant to UCPR 42.21 that the plaintiffs give security
for the costs of the defendant by providing it with a bank
guarantee in the sum of $120,000.
COSTS – security for costs – UCPR 42.21 or s1335(1)
Corporations Act 2001 – where evidence from
defendant suggests that neither plaintiff would be able to meet an
adverse costs order – where plaintiffs have not themselves
provided any evidence of their ability to pay the defendant's
costs of proceedings – where the plaintiffs' financial
position is not the result of the alleged conduct of the defendant
– whether there has been any delay in the present application
– whether the assessment of anticipated costs is reasonable.
The plaintiffs appear to allege that by reason of the
defendant's breach of contract and/or misleading and deceptive
conduct, the project could not be completed on budget but instead
suffered a substantial costs blowout amounting to more than
$1.65M.
Weatherill v Bartlett [2017] NSWCA 175
CONSUMER LAW – misleading or deceptive conduct – where
aircraft purchased in reliance upon misleading estimate of
transportation cost – where value of aircraft exceeded
purchase and transportation cost – whether loss
suffered.
PROCEDURE – leave to appeal – where application for
leave to appeal from appeal on question of law – whether
costs of proceedings at first and second instance included to
satisfy threshold in Supreme Court Act 1970 (NSW), s
101(2)(r) – no question of principle; Competition and
Consumer Act 2010 (Cth), Sch 2, ss 18, 236.
Gemini Energy and Minerals Pty Ltd -v- Luff [2017] WASC
190
Contract law - Share subscription agreement - Claim for a debt -
Whether parties intended to create legal relations - Whether
condition precedent - Whether concurrent obligations - Whether
agreement abandoned - Whether defendant induced by alleged
misleading or deceptive conduct - Turns on own facts.
Australian Consumer Law (Cth), s 18, s 237, s 243.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
