In the media
Seednet to pay $1m penalty for misleading barley
performance claims
The Federal Court has ordered Landmark Operations Limited
(trading as Seednet) to pay a $1 million penalty
for making false, misleading and deceptive claims in a fact sheet
for its barley variety known as 'Compass'.
"Seednet's conduct was unacceptable because it misled
farmers into sowing barley crops under a false impression about the
qualities of the crops they were planting" (07 December 2018).
More...
Fines from Hobart's new infra-red parking system may
not be enforceable, expert says
The council's general manager Nick Heath said APARC
were successful over a number of other bidders for this contract
and we are aware that this has caused some angst among their
competitors. There is currently a similar, but even larger, tender
process for smart parking underway in Perth, Western Australia,
where a number of APARC competitors have made various claims in
order to disadvantage others in that process (07 December 2018).
More...
Former Murray Goulburn boss Gary Helou fined $200,000
following Federal Court settlement approval
The Federal Court has approved a settlement reached
between Murray Goulburn and the ACCC which will see its former
managing director hit with a $200,000 fine. The ACCC launched
proceedings against Murray Goulburn last year, alleging it had
engaged in unconscionable conduct and made false or misleading
representations in breach of Australian consumer law (06 December
2018).
More...
ACCC statement
here.
Internet provider Activ8me in court for alleged
misleading advertisements
The ACCC has instituted proceedings against internet
provider Australian Private Networks Pty Ltd (trading as
Activ8me) in the Federal Court for allegedly making false
or misleading representations in three direct mail advertisements
and five online banner advertisements marketing its Opticomm
fibre-to-the-premises (FTTP) packages (05 December
2018).
More...
PM fast-tracks divestment powers amid High Court
threat
Powers enabling the forced divestment of energy assets
could be law early next year with the government rushed legislation
though the lower house, sight unseen. But the energy companies
signalled a fight, confirming they were actively considering a High
Court challenge to the laws on the grounds they were still
unconstitutional despite being watered down, and that they allowed
unprecedented interference in terms of price fixing (05 December
2018).
More...
ACCC takes action against TPG for misleading
customers
The ACCC has instituted proceedings in the Federal Court
against TPG Internet Pty Ltd (TPG) for engaging in
misleading conduct about a $20 'prepayment' made by
consumers, and including unfair prepayment contract terms in some
of the telco's plans. The ACCC alleges that TPG's
representations to customers about the forfeiture and automatic
'top-up' function are misleading (04 December 2018).
More...
It's crunch time for tech giants, as ACCC probe
enters home stretch
The ACCC is expected to release a draft report from its
'world-first' inquiry into the impact of digital platforms
such as Facebook and Google on traditional media. The inquiry is
supposed to focus on the market power of the digital platforms,
whether that is impacting the quality of news consumers receive,
and how it is affecting media and advertising markets more broadly
(03 December 2018).
More...
Court rules fish oil capsules not 'Made in
Australia'
The Federal Court has ruled that the encapsulation in
Australia of imported fish oil and Vitamin D by Nature's Care
Manufacture Pty Ltd (Nature's Care) would not
permit the capsules to be labelled 'Made in Australia'
under the Australian Consumer Law's (ACL)
Country of Origin labelling provisions (03 December 2018).
More...
Visy Recycling, Cleanaway and Suez remove potentially
unfair contract terms
Visy Paper Pty Ltd (trading as Visy
Recycling), Cleanaway Pty Ltd and Suez Recycling &
Recovery Pty Ltd have agreed to make changes to their price
variation and liquidated damages clauses that previously allowed
them to unilaterally increase their prices in specified
circumstances and impose penalties on customers who wanted to exit
their contracts before the end of the contract term (03 December
2018).
More...
Melbourne South Eastern Real Estate Pty Ltd - Court
outcome
A company that operates three Barry Plant estate agent
offices in Melbourne will pay $720,000, after the Federal Court of
Australia found it engaged in misleading or deceptive conduct and
making false representations about property sales (30 November
2018).
More...
Canberra petrol stations to be banned from advertising
discount fuel prices
Canberra already has some of the highest petrol prices in
the country, but changes announced will stop the cost of fuel being
understated by retailers that often advertise discounted prices
prominently (28 November 2018).
More...
Supré fined for misleading consumers on
price
The Queensland Office of Fair Trading has fined fashion
company Supré Pty Ltd $12,600 after finding the company made
misleading representations about the price of clothing at its
Chermside store (28 November 2018).
More...
Belle Gibson faces jail time if $410k fine for cancer
fraud goes unpaid
A Federal Court judge has warned fake wellness blogger
Belle Gibson she could go to jail if she does not pay $410,000 for
duping customers and breaching Australian consumer law (27 November
2018).
More...
Practice and Regulation
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 the media
release
here and to view the discussion paper
here.
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 2018 code and the 2018 code #2 are
summarised here.
Competition law should remain focused on consumer
welfare
Keynote address delivered to the RBB Economics Annual
Conference, Sydney 29 November 2018
ACCC Chair Rod Sims defended the consumer welfare standard, stating
that competition law and policy 'should be first and foremost
about protecting and promoting competition for the welfare of
consumers' and while this might achieve other objectives, like
income distribution, these broader public interest considerations
should not be introduced into the core of competition law
enforcement. See full transcript
here.
Report to the Australian Senate on anti-competitive and
other practices by health insurers and providers in relation to
private health insurance
Australian Competition and Consumer Commission: 26
November 2018
This report analyses key competition and consumer developments and
trends in the private health insurance industry between 1 July 2017
and 30 June 2018, including ACCC enforcement and other actions
relating to the health sector. More...
Cases
Australian Competition and Consumer Commission v Landmark
Operations Limited (t/a Seednet) [2018] FCA
1977
CONSUMER LAW – where applicant and respondent
reached agreement as to liability and applicable penalties for
respondent's breach of the Australian Consumer Law –
where respondent made representations about quality and
capabilities of a new agricultural product on the market –
consideration of principles for penalties – court approved
parties' agreement and made orders sought.
Competition and Consumer Act 2010 (Cth),
Sch 2, ss 18, 29(1), 33, 224
Australian Competition and Consumer Commission v Murray
Goulburn Co-Operative Co Limited [2018] FCA
1964
CONSUMER LAW – assessment of pecuniary penalty
– number of contraventions – course of conduct
principle –misleading or deceptive conduct – decline in
commodity prices – representations made to dairy farmers
– representations as to the forecasted final Farmgate Milk
Price – contraventions of the Australian Consumer Law –
involvement of managing director in contraventions –
co-operation by way of agreed facts and joint submissions –
penalty assessed – declarations granted.
Competition and Consumer Act 2010 (Cth),
Sch 2, Australian Consumer Law Pt 3-1, ss 18, 29(1)(i),
224(1)(a)(ii), 224(1)(e), 224(2) and 224(3); Evidence Act
1995 (Cth) s 191
Nature's Care Manufacture Pty Ltd v Australian Made
Campaign Limited [2018] FCA
1936
CONSUMER LAW – Australian Consumer Law s 255 –
safe harbour provisions – country of origin representations
– whether fish oil and vitamin D capsules substantially
transformed in Australia – where fish oil and vitamin D
imported into Australia – where Applicant seeks to continue
using 'Australian Made' logo on product. Competition
and Consumer Act 2010 sch 2 s 255
Stowe v Johnson [2018] QSC
278
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – where the plaintiff invested in a
property management business and lent money to the business –
where the plaintiff lost the money he invested, and failed to
recover it as an unsecured creditor – where the plaintiff now
claims damages under s1041I of the Corporations Act 2001
(Cth) for misleading or deceptive conduct; s 12GF
of the Australian Securities and Investment Commission Act
2001 (Cth) for misleading or deceptive
conduct; s 82 of the Trade Practices Act 1974
(Cth) for misleading or deceptive conduct/false or
misleading representations or for negligent misstatement –
whether the defendant made false or misleading representations to
the plaintiff which induced him to invest in the business.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – where the plaintiff claimed damages
for unconscionable conduct under section 12GF of the ASIC
Act – whether the defendant's dealings with
"the funding of the Cameo business" constituted
unconscionable conduct
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE
BREACH AND DEFENCES TO ACTIONS FOR BREACH – PERFORMANCE
– where the plaintiff claimed damages for breach of contract
– whether the defendant breached a term that she be
"just and faithful" in her dealings with the plaintiff
– whether the defendant breached a term that she would
"ensure" that the trust would pay its debts and meet its
obligations.
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.