In the media
ACCC flags concerns about Saputo-Murray Goulburn
deal
The ACCC says its concerns around the proposed
acquisition of the assets of Murray Goulburn by Saputo are solely
in relation to Murray Goulburn's Koroit dairy plant in western
Victoria. The ACCC view is that Saputo owning the Koroit plant
would substantially lessen competition for the acquisition of dairy
farmers' raw milk in the region (01 March 2018).
More...
East coast gas market supply imbalance needs to be
addressed
Australia's east coast gas market remains incredibly
tight and users are paying for this with high prices and limited
sources of competing supply. ACCC Chairman Rod Sims said "The
southern shortfall means that gas produced in Queensland will need
to be sent to the southern states to meet the needs of gas users in
those states, adding costs of transport and weakening southern
buyers' bargaining power to secure gas" (28 February
2018).
More...
Power prices tipped to fall for regional
Queenslanders
Network charges will decrease 5.5 per cent for households
and 9.5 per cent for small businesses. This is a result of the
Palaszczuk Government's intervention in 2015 directing Energex
and Ergon Energy not to challenge the Australian Energy
Regulator's decision. The QCA has also confirmed the
Government's direction to Stanwell Corporation to adjust its
bidding behaviour has also reduced wholesale electricity prices (28
February 2018).
More...
Netgear likely misled customers
Networking equipment manufacturer Netgear will provide
remedies and refunds to customers who were misled by its warranty
and technical support representations, following action by the
ACCC. Netgear admits that it is likely to have misled customers
about the remedies they were legally entitled to under the
Australian Consumer Law (27 February 2018).
More...
ACCC seeking views on news and digital platforms
inquiry
As part of its public inquiry into the impact of digital
platforms on media and advertising markets in Australia, the ACCC
is seeking feedback on whether digital platforms have bargaining
power in their dealings with media content creators, advertisers or
consumers and the implications of that bargaining power (26
February 2018).
More...
Consumers urged to fight back against record
retailers' margins
Average petrol prices in Australia's five largest
cities increased significantly in the December 2017 quarter and hit
their highest levels since 2015, according to the ACCC's latest
quarterly petrol report. The ACCC's role in monitoring petrol
prices was extended by the Treasurer in December 2017. This
monitoring role largely exists so that the ACCC can assist
consumers navigate this complex and fluctuating market. The ACCC
does not have the power to set prices or margins (23 February
2018).
More...
Antitrust: Commission fines maritime car carriers and
car parts suppliers a total of €546 million in three separate
cartel settlements
In three separate decisions, the European Commission has
fined four maritime car carriers €395 million, two suppliers
of spark plugs €76 million, and two suppliers of braking
systems €75 million, for taking part in cartels, in breach of
EU antitrust rules.. During its investigation, the Commission
cooperated with several competition authorities around the world,
including in Australia, Canada, Japan and the US (21 February
2018). More...
ACCC focusses on energy, broadband, net economy and
financial services in 2018
This year, the regulator will focus on consumer issues in
broadband services and energy, competition in the financial
services and commercial construction sectors, systemic consumer
guarantee issues, and conduct that may contravene the new misuse of
market power and concerted practices provisions (20 February 2018).
More...
The markets the ACCC will be watching closely
The Australian Competition and Consumer Commission
(ACCC) has laid out its priorities for 2018,
vowing to make use of new powers and resources as it targets the
car, energy and broadband industries (20 February 2018).
More...
ACCC puts big business on notice as larger fines for
consumer breaches tops 2018 priority list
The ACCC described planned bigger fines for big business
as the key to changing corporate culture, as it revealed its top
priorities for the year. Under new laws before Parliament, the
penalty for consumer breaches by a company will rise from $1.1
million to $10 million, or 10 per cent of turnover. Fines for
individuals will increase from $220,000 to $500,000 (20 February
2018).
More...
ACCC appeals Cussons decision
The ACCC has appealed from the Federal Court's
decision late last year to dismiss the ACCC's proceedings
against PZ Cussons Australia Pty Ltd (Cussons).
The ACCC took action against Cussons in 2013, alleging Cussons had
engaged in cartel conduct by arriving at, and giving effect to, an
understanding with two other laundry detergent manufacturers to
cease supplying standard concentrate laundry detergents in early
2009, and supply only ultra concentrates from that time (20
February 2018).
More...
Australia may be engaging in 'free trade' but
it's becoming more protectionist too
According to international trade law practitioners,
"dumping duties at high rates will give the Minister an
unprecedented price-fixing power over imported products, to the
extent that foreign exporters and their Australian importers may be
unable to compete in Australian markets" (20 February 2018).
More...
In practice and courts, published reports
ACCC remarks: Competition in the Australian Financial
System
The ACCC has welcomed the Productivity
Commission's draft report into Competition in the Financial
System at a
public hearing. At the public hearing, Marcus Bezzi (Executive
General Manager (Enforcement & Compliance Division)) focused
his remarks on: Competition Advocacy; The ACCC's Financial
Services Unit and 'Embedding greater transparency in
decision-making and a commitment to competition' (28 February
2018).
More...
ACCC digital platforms inquiry
The ACCC is looking forward to hearing the views of
consumers, media organisations, digital platforms, advertising
agencies and advertisers after outlining the key issues it will be
considering in its digital platforms inquiry. Submissions in
response to its issues paper close on 3 April 2018. The ACCC will
issue a preliminary report into its findings in December 2018.
Consumers may provide feedback to the inquiry more informally via
the
ACCC consultation hub (26 February 2018).
More...
Proposed acquisition of the assets of Murray Goulburn by
Saputo
The ACCC outlined its concerns in a Statement of Issues
paper and is seeking responses from interested parties by 13 March.
The ACCC invites further submissions from interested parties in
response to the Statement of Issues by 13 March. The ACCC's
final decision is due on 29 March. The Statement of Issues is
available on the ACCC's public register.
More...
2018 ACCC Compliance and enforcement policy and
priorities
Australian Competition and Consumer Commission: 20
February 2018
This year, the ACCC will focus on consumer issues in
broadband services and energy, competition in the financial
services and commercial construction sectors, systemic consumer
guarantee issues, and conduct that may contravene the new misuse of
market power and concerted practices provisions. (APO) More...
(ACCC) More...
National Information Standard on free range
eggs
The ACCC has issued
guidance on the new National Information Standard on free range
eggs. The Standard will apply to all egg producers who use
"free range" claims from 26 April 2018. Note: While the
ACCC has offered its guidance, the guide acknowledges that only a
court can provide a definitive ruling on compliance with the
Standard. Until there is enforcement action taken by the ACCC which
is heard before the courts, egg producers will need to rely mostly
on a 'common sense approach' and usual principles of
interpretation.
Competition Law Symposium
The symposium, Cartels, Optimal Enforcement and
Theories in Competition Law, will be held in
Brisbane on 27 March 2018. The
program, which can be
downloaded here, features keynote speakers from around the
world.
Dairy inquiry
The ACCC is conducting an inquiry into the
competitiveness, trading practices, and transparency of the
Australian dairy industry. On 28 September 2017 the Treasurer
extended the reporting period for the inquiry. The ACCC released
its interim report on 30 November 2017 and is seeking industry
feedback. The ACCC must submit its report following the inquiry to
the Treasurer by 30 April 2018.
Interim report
More...
Cases
Australian
Securities and Investments Commission v Australia and New Zealand
Banking Group Limited [2018]
FCA 155
CONSUMER LAW – credit contracts with consumers
– s128, s129 and s130 of the National Consumer Credit
Protection Act 2009 (Cth) – assessment of credit –
appropriateness of penalty – considerations to take into
account in setting penalties – multiple contraventions -
National Consumer Credit Protection Act 2009 (Cth).
Chowder
Bay Pty Ltd v Paganin [2018]
FCAFC 25
CONSUMER LAW – whether the primary judge erred in
rejecting a claim that the respondents engaged in misleading or
deceptive conduct under s52 of the Trade Practices Act
1974 (Cth) – where appellants invested in a joint
venture financed by a loan facility – whether valuations
prepared by the third and fourth respondents for the bank providing
the facility were misleading or deceptive on the basis
pleaded.
CONSUMER LAW – whether the primary judge erred in finding
that the appellants did not suffer loss or damage pursuant to s82
of the Trade Practice Act 1974 (Cth) – contention as
to whether appellants would have been entitled to recover a
proportion of legal costs incurred in related proceedings as found
by the primary judge.
EVIDENCE – whether the primary judge erred in finding that
there was a failure by the appellants to prove that the bank relied
on representations made as to value contained in valuations –
where no bank witnesses were called in the appellants' case but
business records were tendered without objection and subject to no
limitation.
Shah
v Hagemrad [2018]
FCA 91
CONSUMER LAW – whether first and second respondents
engaged in misleading or deceptive conduct in connection with the
sale by them of a franchise business to the first applicant –
whether first applicant was induced to purchase business by
misrepresentations with respect to sales made.
DAMAGES – whether first and second respondents' conduct
caused the first applicant loss – whether first applicant
entitled to recover difference between the price paid for the
business and its true value at the time of purchase –
assessment of true value of business at time of purchase.
EVIDENCE – significance of rejection of first
respondent's evidence – what inferences may be drawn in
circumstances where key aspects of first respondent's evidence
disbelieved – whether disbelief in the evidence that one
state of affairs exists supports the existence of another state of
affairs.
Competition and Consumer Act 2010 (Cth) s87CC(1)(b);
Corporations Act 2001 (Cth) s471B; Federal Court of
Australia Act 1976 (Cth) s51A; Federal Court Rules
2011 (Cth) r30.21.
Kobelt
v Australian Securities and Investments Commission [2018]
FCAFC 18
CONSUMER LAW – whether the primary judge erred in
finding that the appellant contravened s29(1) of the National
Consumer Credit Protection Act 2009 (Cth) by engaging in
credit activity within the meaning of s6(1) of the National Credit
Act when selling second-hand vehicles by way of a book-up without
holding a licence to engage in that credit activity – whether
the purchase of second-hand motor vehicles under the
appellant's book-up system fell within the terms of s11 of the
National Credit Code (contained in Schedule 1 of the National
Credit Act) – whether there was a charge for the
appellant's provision of credit within s5(1)(c) of the National
Credit Code.
CONSUMER LAW – whether the primary judge erred in finding
that the appellant had contravened s12CB(1) of the Australian
Securities and Investments Commission Act 2001 (Cth) in that,
in connection with the supply of financial services to customers,
the appellant engaged in a system of conduct or pattern of
behaviour which was unconscionable – whether the
appellant's conduct was unconscionable within the meaning of
s12CC(1) of the ASIC Act – where customers are indigenous
residents of the Anangu Pitjantjatjara Yankunytjatjara Lands
(APY Lands), and in most cases, have very limited
or no assets, limited net income and low levels of financial
literacy – where the book-up system is neither recent nor
unique – where the book-up system has advantages to customers
in terms of alleviating the disadvantages associated with demand
sharing and "boom and bust" expenditure – where no
undue influence or exerted undue influence – where no
dishonest use of debit cards or personal identification numbers
(PINs) – where no dishonest maintenance of
records by the appellant – where customers have low levels of
financial literacy, but basic understanding of the book-up system
– where customers voluntarily enter into the book-up
arrangements – where customers understand the basic elements
of the book-up arrangements – where conduct is not predatory
in the relevant sense.
CONSUMER LAW – whether the primary judge erred in granting
an injunction against the appellant under s12GD(1) of the ASIC
Act.
PRACTICE AND PROCEDURE – whether the orders made by the
primary judge ought to be set aside – whether an order by the
primary judge that the Amended Originating Application brought by
the respondent ought to be dismissed.
Australian Consumer Law (Schedule 2 to the Australian
Competition and Consumer Act 2010 (Cth)); Australian
Securities and Investments Commission Act 2001 (Cth) ss 12CB,
12CC, 12GD; Evidence Act 1995 (Cth) s 140; National
Consumer Credit Protection Act 2009 (Cth) ss 3, 6, 29, 131;
National Credit Code ss 5, 11, 13, 17, 204.
Swiss Re International SE v David Simpson
[2018] NSWSC 233
CONSUMER LAW – Competition and Consumer Act
2010 (Cth) – Schedule 2, ss18(1) and 236(1) –
Misleading or deceptive conduct – plaintiff insurers claimed
that they were induced to issue surety performance bonds for a
publicly listed company by misleading or deceptive conduct on the
part of the defendant individual officers of the company –
misleading or deceptive conduct claimed to be representations and
non-disclosures – no claim of accessorial liability –
HELD: no misleading or deceptive conduct on the part of the
defendants established – the alleged misleading or deceptive
conduct was not causative of the plaintiffs' loss.
Legislation
Commonwealth
Competition and Consumer Amendment (Misleading Representations
About Broadband Speeds) Bill 2018
Amends the Competition and Consumer Act
2010 to provide that, when a representation is made about the
speed, quality or price of a broadband service, that representation
must include information about typical speeds, typical busy periods
and their impact on average speeds, and any other factors that may
affect the performance of the service. House of Representatives
Second reading moved 26 February 2018.
National Consumer Credit Protection Amendment (Small Amount Credit
Contract and Consumer Lease Reforms) Bill 2018
Amends the National Consumer Credit Protection
Act 2009 to: impose a cap on the total payments that can be
made under a consumer lease (known as rent-to-buy schemes); require
small amount credit contracts (SACCs) (known as
payday loans) to have equal repayments and payment intervals;
remove the ability for SACC providers to charge monthly fees in
respect of the residual term of a loan where a consumer fully
repays the loan early; prevent lessors and credit assistance
providers from undertaking door-to-door selling of leases at
residential homes; introduce anti-avoidance protections; and
increase penalties. House of Representatives Second reading moved
26 February 2018.
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.