In the media
ACCC bid-rigging case against Cascade Coal
dismissed
The Federal Court has dismissed the ACCC's case
alleging Cascade Coal and others had engaged in bid rigging in
relation to mining exploration licences. Reasons for judgment have
been suppressed until 13 July. The ACCC has been granted extra time
to appeal the ruling until 3 August (06 July 2018).
More...
Funeral insurer targeting Indigenous Australians ignored
court orders
A funeral insurer that heavily targets Indigenous
Australian customers failed to include a disclaimer in some of its
advertising that it was not an Aboriginal organisation, breaching
Federal Court orders. The disclaimer that ACBF is neither an
Aboriginal body, nor linked to the government, had been required
since 1999 as a result of legal action from the ASIC, which had
accused the company of misleading and deceptive conduct (03 July
2018).
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Full Court finds LG made misleading
representations
The Full Federal Court has partially upheld an appeal by
the ACCC against an earlier judgment dismissing the ACCC's case
against LG Electronics Australia Pty Ltd (LG).The
Full Court found that LG made two representations to consumers that
were false, overturning the initial court decision, but dismissed
the ACCC's appeal in respect of other LG statements made to
consumers (27 June 2018).
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Air NZ penalised $15 million for price fixing
The Federal Court has ordered Air New Zealand
(Air NZ) to pay $15 million in penalties after
legal action by the ACCC against a global air cargo cartel. The
Court found Air NZ made and gave effect to agreements with other
airlines to fix the price of fuel and insurance surcharges on air
freight services from Hong Kong, and insurance and security charges
from Singapore, to various locations, including Australian
airports, between 2002 and 2007 (27 June 2018).
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Action against Mitolo for alleged unfair contract
terms
The ACCC has instituted proceedings against Mitolo Group
Pty Ltd and a related entity (together, Mitolo)
alleging that several terms in Mitolo's standard form contracts
with potato farmers are unfair contract terms, and that Mitolo has
breached the Horticulture Code in its dealings with farmers. The
contract terms which the ACCC alleges are unfair include terms that
allow Mitolo to unilaterally determine or vary the price Mitolo
pays farmers for potatoes (26 June 2018).
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Country of origin food labelling surveillance to
commence
After 1 July, Australian consumers will have much greater
certainty about the origins of the food they buy, due to the
introduction of mandatory Country of Origin food labelling. ACCC
Deputy Chair Mick Keogh said some consumers are willing to pay
extra for products grown, produced or made in Australia, and
producers and importers should be aware that any claim which is
likely to mislead consumers will also be a breach of the law (26
June 2018).
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ASIC wants AFCA to report mis-selling
The Australian Financial Complaints Authority should
report insurers to the regulator if they engage in unconscionable
conduct to sell cover that is not needed or could not be claimed
on, a guidance note for the new scheme says (25 June 2018).
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ACCC seeks special leave to appeal in Pfizer
The ACCC has applied for Special Leave to appeal to the
High Court against the Full Federal Court's decision. The Full
Federal Court last month dismissed an appeal against Justice
Flick's decision at first instance. The ACCC also failed to
have the Full Federal Court overturn Justice Flick's finding
that Pfizer had not supplied pharmacies on a relevant
'condition' as required for purposes of s.47 (exclusive
dealing) (25 June 2018).
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ACCC takes Pfizer competition case to High Court
The Australian Competition and Consumer Commission is
seeking special leave from the High Court to appeal a ruling in a
case alleging drug giant Pfizer misused its market power ahead of
the expiration of its patent for Lipitor. The ACCC wants to
challenge the Full Federal Court's decision on 25 May that let
stand a judgement in favour of Pfizer (25 June 2018).
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ACCC calls for simpler, more transparent health
insurance
The ACCC has released its annual report into the
private health insurance industry, calling for the industry to
make its products more consumer friendly by providing reliable and
transparent information about product features and changes to
private health insurance policies (25 June 2018).
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Former Kimberley Diamonds executive chairman acquitted
on two charges of misleading the market
Mr Alexandre Alexander, the former executive chairman of
Kimberley Diamonds Ltd, was on 25 June 2018 found not guilty on two
counts related to issuing false or misleading information to the
market following a jury trial in the District Court of NSW. On 26
June 2018 the jury was not able to reach a unanimous decision in
relation to two other charges of misleading the market (27 June
2018).
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House Economics Committee to scrutinise ACCC
The Standing Committee on Economics, which can inquire
into and report on any annual reports referred to it by the House
of Representatives, has agreed to undertake an inquiry into the
Australian Competition and Consumer Commission's Annual Report
2017 (27 June 2018).
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Cases
Australian Competition and Consumer Commission v LG
Electronics Australia Pty Ltd [2018] FCAFC
96
CONSUMER LAW – consumer protection – ss.18(1)
and 29(1)(m) of the Australian Consumer Law (the ACL)
–misleading or deceptive conduct – false or misleading
representations made concerning the existence, exclusion or effect
of consumer guarantee in contravention of provisions of the ACL
– appeal allowed in part. Competition and Consumer Act
2010 (Cth) ss.18, 29, 54, 259, 271, 274.
Actron Investments Queensland Pty Ltd v DEQ Consulting Pty
Ltd [2018] QCA 147
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
MISLEADING OR DECEPTIVE CONDUCT GENERALLY – MISLEADING OR
DECEPTIVE: WHAT CONSTITUTES – where the appellant purchased a
commercial lot in a community titles scheme which included a
corporate headquarters/warehouse – where the floor was a
floating concrete slab – where the first respondent (through
the second respondent) issued a Form 15 Compliance Certificate -
Design under the Standard Building Regulation 1993 (Qld)
by reference to the Building Code of Australia (2006)
– where this form was relied upon and used by the building
certifiers as conveying the engineering opinion that the
anticipated loads would be resisted by the floating concrete slab
without undue settlement – where the building certifier was
entitled to rely on the Form 15 for this purpose –where the
floating slab subsided due to marine clays in the subsurface
shrinking and swelling, and settlement occurred because of the
consolidation of compressible marine clays – where the
appellant claimed damages against the first respondent pursuant to
s.82 Trade Practices Act 1974 (Cth) for misleading and
deceptive conduct in contravention of s.52 Trade Practices Act
1974 (Cth) – where the appellant claimed damages against
the second respondent for being "a person involved in the
contravention" in terms of s.75B of that Act – whether
the settlement of the floating slab was "undue" –
whether the first respondent's communication of the Form 15 was
misleading conduct in contravention of s.52 Trade Practices Act
1974 – whether the second respondent possessed the
knowledge required to render him liable as a party to the first
respondent's contravention.
Leonards Pharmacy Pty Ltd v Double Up 888 Pty
Ltd [2018] NSWSC 974
TRADE AND COMMERCE – contract for sale of a
pharmacy – whether purchaser entitled to rescind –
whether purchaser discharged obligation to do all things and make
all applications and returns necessary to obtain approval under
s.90 of the National Health Act 1953 (Cth) – whether
purchaser used best endeavours to ensure that application was
determined expeditiously – whether vendor entitled to forfeit
deposit. TRADE AND COMMERCE – misleading and deceptive
conduct – whether vendor made positive representations that
he was not aware of an application for a second pharmacy in
Coonamble – whether vendor remained silent as to his
knowledge.
Murati v Belma Furniture Pty Ltd
(Civil Claims) [2018] VCAT 961
Retail sale of furniture – misleading and deceptive
conduct – breach of consumer guarantees – Australian
Consumer Law , sections 18, 56, 57 and 263.
Legislation
Commonwealth
Competition
and Consumer (Airservices Australia Prices Surveillance)
Declaration 2018
09/07/2018 - This declaration requires Airservices
Australia to notify the ACCC before increasing the price of
services relating to terminal navigation, airport firefighting and
rescue, en route air route and airway facilities, and safety
regulatory and other safety related activities.
Therapeutic
Goods Advertising Code 2018
29/06/2018 - This instrument sets out the requirements
for the advertising of medicines, medical devices and other
therapeutic goods, and includes information both about statements
which are required to be included in advertising material, and
statements, representations or implications which must not be
included in such advertising.
Therapeutic
Goods Information (Outcomes of Advertising Complaints
Investigations) Specification 2018
28/06/2018 - This instrument is made by the Minister
under subsection 61(5D) of the Act, and specifies the kinds of
therapeutic goods information that the Secretary may release to the
public under subsection 61(5C) of the Act regarding advertising
complaint outcomes.
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.