In the media
Appeal in laundry detergent cartel case
unsuccessful
The Full Court of the Federal Court has dismissed the
ACCC's appeal against a ruling that there was insufficient
evidence to find that PZ Cussons Australia (Cussons) engaged in
cartel behaviour in the laundry detergent market (24 May 2019).
More...
International competition regulators sign new
competition framework
The ACCC has joined the International Competition
Network's 'Framework on Competition Agency Procedures'
(CAP) alongside more than 60 other global agencies
(24 May 2019).
More...
Teeth whitening: Surging popularity brings issues to
resolve
Some consumer websites and online retail marketplaces that
ship to Australian consumers are selling teeth whitening products
containing concentrations of whitening agents that exceed legal
limits in Australia. Teeth whitening products are classed as
cosmetic, and the ACCC and its partner state and territory consumer
protection agencies that are responsible for monitoring misleading
advertising of teeth whitening products and services (24 May 2019).
More...
Kogan in Court for alleged false or misleading discount
advertisements
The ACCC has instituted proceedings against Kogan
Australia Pty Ltd (Kogan) in the Federal Court alleging that Kogan
made false or misleading representations about a 10% discount
promotion, in breach of the Australian Consumer Law (23 May 2019).
More...
ASIC powers to protect borrowers from 'poverty
trap'
The corporate regulator's new product intervention
powers have been welcomed by the CEO of the Financial Rights Legal
Centre, in the hope that they'll protect borrowers from credit
law evasion. The chief executive, Karen Cox, expects ASIC's new
powers to better protect consumers from the provision of misleading
or deceptive financial products by enabling the regulator to
intervene before they are released to market (22 May 2019).
More...
GSK and Novartis misled consumers with Voltaren Osteo
Gel claims
The Federal Court has accepted admissions by
GlaxoSmithKline Consumer Healthcare Australia Pty Ltd
(GSK) and Novartis Consumer Health Australasia Pty
Ltd (Novartis) that they breached the Australian Consumer Law by
making false or misleading representations in the marketing of
Voltaren Osteo Gel and Voltaren Emulgel pain relief products (17
May 2019).
More...
TGA continues action against Peptide Clinics Australia
for alleged advertising breaches
The Federal Court has granted leave to the Secretary of
the Department of Health to continue court proceedings against
Peptide Clinics Australia following the company's liquidation
in March this year. The alleged breaches relate to inappropriate
online advertisements for 'peptides' and other
prescription-only products which must not be misleading under
Australian law (17 May 2019).
More...
Court dismisses ACCC's proceedings against Pacific
National and Aurizon
ACCC Chair Rod Sims said Aurizon may have sought to
maximise its sale price by entering into these transactions with
its closest competitor, Pacific National, but the transactions will
create huge, likely insurmountable, barriers to new entrants who
may wish to enter the markets and compete with Pacific National.
More...
Cases
De Belin v Australian Rugby League Commission
Limited [2019] FCA
688
CONTRACTS – restraint of trade – where
applicant is a professional rugby league player contracted by a
club to play rugby league in the National Rugby League
(NRL) Competition – where applicant licenced
his name, image and reputation in his playing contract –
where applicant charged with aggravated sexual assault in company
– where applicant has pleaded not guilty but charges are not
yet determined – where the applicant was automatically stood
down from playing in the NRL Competition under a new rule
automatically subjecting players charged with criminal offences
punishable by a maximum penalty of 11 years to a "no-fault
stand down condition" – where player stood down on full
pay and permitted to continue to train with his club –
whether the new rule was reasonably necessary to protect the
legitimate interests of the respondents, having regard to the
seriousness of the restraint imposed upon the player – where
the evidence established a clear and present danger to the
legitimate interests of the respondents – whether the new
rule imposed an indefinite condition – whether the new rule
operated in a relevantly retrospective way – where no
opportunity for the applicant to make submissions or seek review of
the application of the no-fault stand down condition –
whether real danger of contempt of court if the NRL were to
determine whether there had been a breach of the NRL Code of
Conduct – application dismissed
TORTS – whether the imposition of the new rule constituted an
unlawful interference with the applicant's Playing Contract
with his Club – whether the applicant had established any
loss or damage as a result of the no-fault automatic stand down
condition – where no intention established to induce or
procure the interference in the Playing Contract – where the
NRL Rules and interlocking contractual matrix provided that players
are bound by the NRL Rules as amended from time to time
CONSUMER LAW – whether, before the new rule was adopted, the
respondents had made misleading or deceptive statements in breach
of s 18 of the Australian Consumer Law (ACL)
– where the representations are not properly pleaded –
whether any loss or damage established
CONSUMER LAW – whether, in imposing the new rule, the
respondents engaged in unconscionable conduct contrary to s 21 of
the ACL
Australian Consumer Law s 18, 21, 22
RRG Nominees Pty Ltd v Visible Temporary Fencing Australia
Pty Ltd (No 4) [2019] FCA
686
CONSUMER LAW – claims of misleading or deceptive
conduct contrary to s 18 of the Australian Consumer Law
(ACL) and s 1041H of the Corporations Act
2001 (Cth) – claim that misrepresentations made by the
Respondents induced the Applicants to invest in multiple companies
associated with the Respondents – the companies subsequently
wound up – whether each alleged misrepresentation was made
and whether it was misleading or deceptive – whether the
Respondents' misrepresentations were relied upon by the
Applicants in making their investments – whether the reliance
on the misrepresentations caused the loss of the investments
– contraventions of s 18 of the ACL and s 1041H of the
Corporations Act made out – Applicants entitled to recover
damages.
Australian Consumer Law ss 4, 18, 236; Australian Securities
and Investments Commission Act 2001 (Cth) ss 12BAA, 12BAB;
Competition and Consumer Act 2010 (Cth) ss 131A, 763A,
763B, 766A, 766B, 766C, 1041H, 1041I; Trade Practices Act
1974 (Cth) s 82(1); Misrepresentation Act 1972 (SA) s
7
Australian Competition and Consumer Commission v
GlaxoSmithKline Consumer Healthcare Australia Pty Ltd
[2019] FCA 676
CONSUMER LAW – where respondent sold identical gel
under both the sub-brand names "Osteo-Gel" and
"Emulgel" – whether respondent contravened the
Australian Consumer Law by suggesting "Osteo Gel" was
specifically formulated to treat osteoarthritis through revised
packaging, as was admitted to in relation to earlier packaging and
website representations – held: Onus of proving the disputed
contraventions not discharged. Australian Consumer Law (contained
in Sch 2 of the Competition and Consumer Act 2010 (Cth))
ss 18, 29(1)(g) and 33
Sino Iron Pty Ltd v Mineralogy Pty Ltd
[2019] FCA 675
CORPORATIONS - cross-vesting application - application to
cross-vest Federal Court proceedings to the Supreme Court of
Western Australia - where various extant proceedings in the Supreme
Court of Western Australia relating to same project - whether
potential overlap of issues - whether case management principles
favour management by one court - whether more appropriate and in
the interests of justice to transfer
Competition and Consumer Act 2010 (Cth) s 138C;
Jurisdiction of Courts (Crossvesting) Act 1987 (Cth) ss
5(4), 5(5)
Australian Competition and Consumer Commission v Pacific
National Pty Limited (No 2) [2019] FCA
669
COMPETITION – acquisition involving Queensland rail
terminal – Acacia Ridge Terminal including the Brisbane Multi
User Terminal – access to terminal – acquisition
producing vertical integration – discrimination against new
entrants by vertically integrated operator – ability to
discriminate – incentive to discriminate – reasonable
perception of ability and incentive to discriminate –
barriers to entry heightened by such acquisition –
availability of alternative terminals – Brisbane Multimodal
Terminal at Port of Brisbane – standard gauge terminal at
Bromelton, Queensland – narrow gauge terminal at Tennyson,
Queensland – Inland Rail Project – prospect of new
entry – efficiencies from vertical integration –
elimination of double marginalisation – intermodal and steel
rail interstate linehaul services – market definition –
defining market by reference to end users with no ready
substitutable services for rail services – two economic
conditions supporting definition by reference to end users –
capacity to price discriminate amongst users – no capacity
for profitable arbitrage – interstate market(s) –
north-south interstate market – east-west interstate market
– Queensland market – non-bulk steel – bulk steel
– competition in the relevant market(s) – substantial
lessening of competition – meaning of "likely"
– real chance – standard of proof of counterfactual
– contravention of s 50 of the Competition and Consumer
Act 2010 (Cth) – undertaking proffered by the acquirer
– terminal services subcontract – provisions having
likely effect of substantial lessening of competition –
comparison of factual and counterfactual scenarios –
alternative causation case – contravention of s 45(2) of the
Competition and Consumer Act 2010 (Cth)
DIF III – Global Co-Investment Fund LP v Babcock
& Brown International Pty Limited [2019]
NSWSC 527
EQUITY – Fiduciary relationships – Promoters
–whether fiduciary relationship existed on basis of being
promoter of commercial transaction – indicia of fiduciary
relationships –Corporations Act 2001 (Cth)
EQUITY– Remedies – equitable compensation – for
breach of fiduciary duty MISLEADING AND DECEPTIVE CONDUCT – s
1041H of the Corporations Act 2001 (Cth) – s 12DA of
ASIC Act 2001 (Cth) – representation – whether
approval of investment constituted representation as to
commerciality of investment – whether misleading and
deceptive – whether representation constituted representation
concerning a future matter – s 769C of Corporations Act
2001 (Cth) and s 12BB of ASIC Act 2001 (Cth) –
whether there were reasonable grounds for making representation
– evidential burden for establishing reasonable grounds
– on whose behalf was representation made
MISLEADING AND DECEPTIVE CONDUCT – s 1041H of the
Corporations Act 2001 (Cth) – s 12DA of ASIC Act
2001 (Cth) – silence – whether failure to disclose
information constituted misleading and deceptive conduct –
whether reasonable expectation that information would be
disclosed
MISLEADING AND DECEPTIVE CONDUCT - s 1041H of the Corporations
Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth)
– quantification of loss – Potts v Miller – time
at which loss should be assessed – whether to account for
subsequent events
MISLEADING AND DECEPTIVE CONDUCT - s 1041H of the Corporations
Act 2001 (Cth) – s 12DA of ASIC Act 2001 (Cth)
– defences – whether liability is excluded by
agreements – whether contrary to public policy –
whether void under s 12ED of ASIC Act 2001 (Cth) –
whether to excuse under s 1318 of the Corporations Act
2001 (Cth) – whether relevant defendants are concurrent
wrongdoers and as a consequence whether claims apportionable
– discretion of court under statute to apportion based on
responsibility for damage or loss – contributory negligence
TORT – negligent misstatement – whether duty of care
owed – whether existence of duty of care inconsistent with
contract – features of relationship – scope of
duty
CONTRACT – Implied terms – statute – whether
warranties under s 12ED of ASIC Act 2001 (Cth) are implied
– definition and characteristics of 'small business'
– whether liability excluded by relevant agreements –
whether clauses of relevant agreements void under s 12EB of
ASIC Act 2001 (Cth) – whether conduct of relevant
defendants constituted breach of express terms of agreement –
meaning of 'gross negligence' INSURANCE – Liability
insurance – professional indemnity insurance –
notification – whether evidence of knowledge of facts or
circumstances from which it might reasonably be concluded that
claim would be made – application of s 54 of Insurance
Contracts Act 1984 (Cth) – other express exclusions in
policy INSURANCE – directors and officers –
notification – whether claims made arise out of circumstances
notified during policy period – s 54 of Insurance
Contracts Act 1984 (Cth) – other express exclusions in
policy
Gallop Reserve Pty Ltd v Matton Developments Pty Ltd &
Anor [2019] QSC
113
CORPORATIONS – FINANCIAL SERVICES AND MARKETS
– MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT –
MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where the
plaintiff entered into an agreement to provide litigation funding
to the first defendant – where the litigation settled with a
substantial payment to the first defendant – where an earlier
debt owed by the first defendant to a bank was assigned by deed to
the plaintiff – where one director of the first defendant,
Kenward, executed the Deed of Assignment on its behalf pursuant to
a power of attorney – whether the plaintiff engaged in
misleading and deceptive conduct or unconscionable conduct in
relation to the execution of the Deed of Assignment
CORPORATIONS – where the second defendant alleges that the
plaintiff knowingly assisted Kenward in breaches of fiduciary
duties under ss 180 and 182–184 of the Corporations Act
CORPORATIONS – CHARGES – SECURITY INTERESTS
JA & JB Boyle Pty Ltd v Major Furnace Australia Pty Ltd [2019] QDC 75
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
where the plaintiff entered into a contract to purchase a cremator
from the defendant – where the defendant made representations
regarding performance and delivery time – whether the
representations were misleading or deceptive – whether
reasonable grounds existed for making the representations –
whether the plaintiff relied on the representations
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES –
OTHER ORDERS OR RELIEF – RESCISSION OR RESTITUTION –
where the plaintiff entered into the contract to purchase a
cremator in preference to an alternative product – where the
plaintiff communicated its desire to rescind the contract to the
defendant – where the cremator is now worthless – where
the defendant refused to retake possession – whether
avoidance of the contract and repayment of the purchase price is
the appropriate remedy. Australian Consumer Law 2009 Cth s 4, s 18,
s 29, s 236, s 237 and s 243
Rozenblit v Vainer & Anor [2019]
VSC 316
TRADE PRACTICES – Misleading or deceptive conduct
– Plaintiff transferred shares as consideration for second
defendant providing security for a loan – First defendant
proposed and arranged the share transfer – First defendant
failed to disclose that second defendant was entitled to retain the
shares if he did not provide security – First defendant
engaged in misleading or deceptive conduct – Second defendant
was not involved in first defendant's contravention –
Australian Consumer Law s 18.
TRADE PRACTICES – Unconscionable conduct – Plaintiff
was not under a special disadvantage or disability – First
and second defendants did not engage in unconscionable conduct
within the meaning of the unwritten law – First and second
defendants engaged in unconscionable conduct by expropriating or
retaining the plaintiff's shares for no consideration –
Australian Consumer Law ss 20 and 21 – Commercial Bank of
Australia v Amadio [1983] HCA 14; (1983) 46 ALR 402; Australian
Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd
[2000] FCA 2; (2000) 169 ALR 324.
RESTITUTION – Transfer of property – Plaintiff
transferred shares under a mistake of fact – Total failure of
consideration – Retention of shares by second defendant
unjust in all of the circumstances.
REMEDIES – Damages - Shares retained by second defendant
worthless – Company wound up – Nominal damages
awarded.
EQUITY – Breach of fiduciary duty – Plaintiff and first
defendant were shareholders and directors in a company –
First defendant wound up that company and incorporated a new
company – Plaintiff alleged that he had been improperly
excluded from new company – Whether first defendant owed
fiduciary obligations to plaintiff – Where parties alleged to
be in 'quasi-partnership' – First defendant did not
assume responsibility for interests of plaintiff –
Contractual arrangements and company and trust structures
inconsistent with fiduciary obligations – Plaintiff was not
vulnerable to and did not rely on first defendant – First
defendant did not owe fiduciary obligations to plaintiff –
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; Brunninghausen v
Glavanics [1999] NSWCA 199; (1999) 32 ACSR 294.
CONTRACT – Breach of contract – Parties entered into a
series of agreements to govern the operation, management and
structure of a company's business – Breach of the terms
of an earlier agreement alleged – Subsequent agreement
superseded the earlier agreements – No breach of contract
– Hillam v Iacullo [2015] NSWCA 196
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.
