In the media
ACCC not satisfied with proposed OxoPak marks
The ACCC is proposing to reject an application for four
certification trademarks for certain biodegradable plastics by
OxoPak Pty Ltd. OxoPak is seeking to register the marks as part of
its certification scheme for plastic bags and other packaging
materials that meet certain specified standards of
oxo-biodegradability (22 November 2018).
More...
Aurizon, Pacific National collusion case opens with
pruned ACCC claim
The ACCC alleges that Aurizon and Australia's biggest
freight train operator, Pacific National, breached section 45 and
section 50 of the competition law in formulating a deal over the
key rail bottleneck between Queensland and NSW (18 November 2018).
More...
Honey investigation concludes due to testing
uncertainty
The ACCC has concluded its investigation into allegations
Capilano Honey Limited (Capilano) breached the
Australian Consumer Law in relation to representations about its
'Allowrie' honey and other products. The ACCC is advised
NMR testing is not yet reliable enough to determine whether honey
is adulterated and therefore should not be used as a basis to
support legal action (17 November 2018).
More...
Record $18m fines for Consumer Law breaches
The sole director of a property spruiking business has
been personally fined $6 million, and his company a further $12
million. According to the ACCC, which prosecuted the case, both set
a new record for the size of a financial penalty handed down for
breaching Australian Consumer Law (ACL) for an
individual and a company, respectively (15 November 2018).
More...
More...
"Vegan honey" manufacturer dodges
prosecution
The nation's competition watchdog will not prosecute a
"vegan honey" manufacturer whose apple juice concentrate
product was accused of being deliberately misleading (13 November
2018).
More...
NBN users continue shift to higher speed plans
The ACCC's report for the September quarter shows the
number of NBN residential broadband connections rose from about 4.1
million last quarter (up almost 8.6 per cent). The ACCC will
continue to monitor the evolution of the NBN broadband market to
help consumers make an informed choices about broadband plans (13
November 2018).
More...
Federal Court dismisses Obeid appeal against refusal to
grant suppression order
The Federal Court has dismissed an application by Moses
Obeid for leave to appeal against the Court's decision to
refuse to grant a suppression order over part of its reasons for
decision in an alleged bid rigging case. The Federal Court
dismissed the ACCC's bid rigging proceedings, but the ACCC
filed an appeal on 3 August 2018 (yet to be heard) (12 November
2018).
More...
Practice and regulations
ACCC discussion paper: Electricity monitoring
The ACCC has released a discussion paper relating to how
it will conduct its new role of monitoring and reporting on supply
of electricity in the National Electricity Market. Submissions are
sought on three key areas. Submissions close 19 December. The first
report is due to the Treasurer on 31 March 2019. See
media release. View
discussion paper.(19 November 2018)
Therapeutic Goods Advertising Code
The Therapeutic Goods Advertising Code (the
Code) ensures that the marketing and advertising of
therapeutic goods is conducted in a manner that promotes the
quality use of the product, is socially responsible and does not
mislead or deceive the consumer. On 1 January 2019, the Therapeutic
Goods Advertising Code (No. 2) 2018 will take effect. The
differences between the first code and the second code are
summarised
here.
Digital radio multiplex transmission services in
Canberra, Darwin and Hobart: Consultation and position paper
Australian Competition and Consumer Commission: 19
November 2018.
On 30 October 2018, the ACCC received three new access undertakings
in relation to the commencement of digital radio services in
Canberra, Darwin and Hobart. This consultation paper is designed to
seek stakeholders' views on the degree to which the
undertakings meet the legislative requirements. More...
Cases
Director of Consumer Affairs Victoria v Melbourne South
Eastern Real Estate Pty Ltd [2018] FCA
1763
CONSUMER LAW – admitted contraventions of consumer
law by real estate agents regarding the advertising of properties
for sale on the internet – underquoting of prices to
potential purchasers including through use of "blind
pricing" – whether orders proposed by consent
appropriate in the circumstances – some amendments to
proposed orders necessary – appropriate form of declaratory
relief – some amendments necessary – pecuniary
penalties – compliance program – public notice –
costs.
Competition and Consumer Act 2010 (Cth), ss 18, 30;
Evidence Act 1995 (Cth), ss 191, 191(2)(b)
Australian Consumer Law and Fair Trading Act 2012 (Vic),
ss 18, 30, 224; Estate Agents Act 1980 (Vic), ss 29B, 47A,
47B, 47C
Australian Competition and Consumer Commission v We Buy
Houses Pty Ltd (No 2) [2018] FCA
1748
CONSUMER LAW – misleading or deceptive conduct
– contraventions of ss 18, 29(1)(f), 29(1)(g), 34 and 37 of
the Australian Consumer Law (being Sch 2 to the Competition and
Consumer Act 2010 (Cth) arising out of respondents'
promotion and conduct of real estate investment seminar business
found – enforcement and remedies – declarations –
pecuniary penalties – disqualification order –
compliance program – corrective advertising and adverse
publicity order – findings of fact order.
Australian Consumer Law (being Sch 2 to the Competition and
Consumer Act 2010 (Cth) ss 18, 29(1)(g), 29(1)(f), 34, 37,
224(2), 232(1), 232(4), 237(1), 239(1) 246(2)(b), 248;
Competition and Consumer Act 2010 (Cth) ss 5(1)(g),
5(1)(h), 137H; Federal Court of Australia Act 1976 (Cth) s
21; Trade Practices Act 1974 (Cth) s 76E.
Chhabra v McPherson as Trustee for the McPherson Practice
Trust [2018] FCA 1755
COPYRIGHT – infringement – co-ownership of
copyright – copyright licence – whether licence by one
co-owner granted with other co-owner's consent – whether
bare or contractual licence – whether licence revocable at
will.
CONSUMER LAW – passing off – misleading or deceptive
conduct – misleading or false representation of association
– whether use of trading name or style and logos represented
an association of one law firm with another.
Australian Consumer Law (Schedule 2 of the Competition and
Consumer Act 2010 (Cth), ss 18, 29
Copyright (International Protection) Regulations 1969 (Cth), reg 4;
Copyright Act 1968 (Cth), ss 10, 30, 35, 115, 120, 196,
197
Australian Securities & Investments Commission v
Westpac Banking Corporation [2018] FCA
1733
CONSUMER LAW – joint application for declarations of
contravention and penalty by consent – whether conduct
specified in proposed declarations and agreed statement of facts
constitutes contravention – whether agreed facts sufficient
to assess agreed penalty
National Consumer Credit Protection Act 2009 (Cth) ss 128,
129, 130, 166
Australian Securities and Investments Commission v Westpac
Banking Corporation (No 3) [2018] FCA
1701
CORPORATIONS – Pecuniary penalty –
declarations of contraventions – compliance program –
bank bill market – trading in prime bank bills – Bank
Bill Swap Reference rate (BBSW) – bank
accepted bill futures – interest rate swaps –
cross-currency swaps – market manipulation – artificial
price in traded BBSW referenced products – financial market
– false or misleading appearance in a market – false or
misleading appearance with respect to price for trading –
unconscionable conduct – financial instruments referencing
BBSW – non-disclosure of rate set trading practice to
counterparties – statutory unconscionability –
contraventions of the then s 12CC of Australian Securities and
Investments Commission Act 2001 (Cth) – penalty imposed
– declarations and other orders made.
Flash Lighting Co Ltd v Australian Kunqian Energy Co
Ltd [2018] VSC 711
CONTRACT – Sale of shares in company
(U&D) that owned a coal mining tenement in
Queensland – Vendors, two companies, FLC and ANB –
Purchaser (KQ) a wholly owned subsidiary of a
Chinese State Owned Entity(Yima) – Yima
instructed KQ to purchase the shares from the two shareholders
– Vendor (FLC) not paid agreed purchase
price – Proceedings by FLC for payment of balance of sale
price allegedly owed by KQ – Defence and counterclaim by KQ
alleging that Yima and KQ misled and deceived by a fraudulent
report on the coal resources of the tenement produced by a director
of ANB – Price of the shares in U&D to be determined by
Chinese valuer – Valuer used fraudulent report provided by
director of ANB in reaching valuation of the shares – Whether
Yima and KQ relied on the fraudulent report in approving the
purchase of the shares in U&D at the price determined by the
valuer – Whether provision of the fraudulent report
constituted a breach of the share sale agreement – Whether
breach of the share sale agreement led to any loss or damage to
KQ.
MISLEADING AND DECEPTIVE CONDUCT – Claim under
Competition and Consumer Act 2010 (Cth) and Fair
Trading Act 1989 (Qld) that Yima being misled and deceived by
the misleading and deceptive conduct constituted by the fraudulent
report caused KQ to suffer loss and damage in buying shares for
more than their worth – Claim by KQ for compensation under
the Acts and for the damages to be set off against any moneys
owed.
AGENCY – Whether the director of ANB acted as the agent of
FLC in the sale by FLC of its shares in U&D in providing
fraudulent report to Yima and the valuer.
AGENCY – Director of ANB acknowledged receipt of outstanding
purchase price due to FLC – Whether director acting as agent
for FLC – Whether FLC bound by actions of director of
ANB.
RECIEPT AS A VOLUNTEER – Moneys transferred by KQ to U&D
to be paid by U&D to FLC – Director of ANB, that provided
fraudulent report, misappropriated moneys paid by KQ for the
purchase of the shares from FLC – Director paid the
misappropriated moneys to his former wife and former intimate
friend – Proceedings by U&D to recover moneys
misappropriated from former wife and former intimate friend.
BARNES v ADDEY CLAIM – Knowing recipient claim.
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.
