In the media
ACCC releases draft guidelines on repeal of subsection
51(3) of the CCA
The ACCC has released draft guidelines on the repeal of
subsection 51(3) of the Competition and Consumer Act 2010
(Cth) (CCA) for consultation. The guidelines also
provide examples of conduct that the ACCC would now consider likely
or unlikely to breach the anti-competitive conduct provisions of
the CCA (21 June 2019).
More...
NBN Co set to issue wholesale pricing review paper
featured
The NBN Co, the company rolling out Australia's
national broadband network, is set to issue a wholesale pricing
review to a number of telecommunications providers on Thursday in a
bid to quell disquiet in the industry (20 June 2019).
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CATO chairman takes aim at "deceptive and
misleading" advertising by industry disruptors
In his address to members, Bunnik hit out at the
proliferation of travel packages now being advertised with
disingenuous discounts by high-profile travel industry disruptors,
saying it undermines the credibility of the industry and diminishes
retail travel agent revenue as consumers are lured by misleading
pricing claims (19 June 2019).
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Jump Swim in court for alleged misleading conduct
The ACCC has instituted proceedings against franchisor
Jump Loops Pty Ltd and its parent company Swim Loops Holdings Pty
Ltd (collectively Jump Swim) in the Federal Court, alleging that it
made false, misleading or deceptive statements about Jump Swim
School franchises, in breach of the Australian Consumer Law (18
June 2019).
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Guide for energy retailers on new Retail Code
Energy retailers in South East Queensland, New South Wales
and South Australia must comply with obligations under a new
Electricity Retail Code from July 1 this year, including by
advertising electricity plans in a way that makes it easier for
consumers to compare prices and offers (18 June 2019).
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TGA guidelines on 'natural' claims in
therapeutic goods advertising
The TGA has indicated that the published guidance is more
streamlined than the versions provided for consultation and is
broadly consistent with the ACCC's guidelines about the use of
natural claims in relation to food advertising. The Code requires
that any claims made in therapeutic goods advertising must be
valid, accurate, truthful, balanced and not misleading or likely to
mislead (11 June 2019).
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Dover case arising from banking royal commission hits
court
The first trial arising from the banking royal commission
has wrapped up, with an already shuttered financial planner accused
of misleading and deceptive conduct (13 June 2019).
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Online lingerie seller fails to deliver
A Coomera online retailer was fined $8,000 and ordered to
pay more than $1,600 in compensation in the Southport Magistrates
Court (11 June 2019) after being found guilty of three counts of
failing to supply goods and four counts of making false or
misleading representations under the Australian Consumer Law
(ACL) (11 June 2019).
More...
Practice and Regulation
ACCC draft guidelines on repeal of subsection 51(3) of
the CCA
The
draft guidelines outline the ACCC's approach to enforcing
the CCA following the repeal, where certain conduct involving
intellectual property rights was exempt from certain parts of the
competition law, from 13 September 2019. Comments or suggestions on
the draft guidelines close on 19 July 2019 via the
ACCC consultation hub (21 June 2019).
Guide to the
electricity retail code
Australian Competition and Consumer Commission: 18 June
2019
The ACCC promotes, monitors and enforces compliance with the
Competition and Consumer (Industry Code—Electricity Retail)
Regulations 2019 (the Code). As part of this role,
the ACCC has published this guide for electricity retailers. The
code comes into force on 1 July 2019.
TGA:
Therapeutic goods advertising: Ensuring 'natural'
claims are not misleading
11 June 2019 - Guidance on how advertisers can use terms
such as 'natural' without misleading consumers.
TGA:
Using 'natural' claims when advertising to the
public
11 June 2019 - Reasons for releasing guidance and how it
was developed
ACCC Consultation:
Wine grape market study - June interim
report
The ACCC is seeking feedback on the interim report by 28
June 2019 and expects to release a final report in September 2019.
The interim report is available at.
Cases
Australian Securities and Investments Commission v
Kobelt [2019] HCA
18
Appeal dismissed with costs.
Trade practices – Consumer protection – Unconscionable
conduct – Where s 12CB(1) of Australian Securities and
Investments Commission Act 2001 (Cth) relevantly prohibited
"unconscionable" conduct in trade or commerce in
connection with supply or possible supply of financial services
– Where respondent provided "book-up" credit to
Anangu customers of general store – Where book-up credit
allowed deferral of whole or part of payment for goods subject to
respondent retaining customer's debit card and personal
identification number – Where respondent used debit card to
withdraw whole or nearly whole of wages or Centrelink payments
shortly after credited to prevent customers having practical
opportunity to access monies – Where respondent applied part
of withdrawn funds to reduce customer's indebtedness and made
remainder available for provision of future goods and services
– Where respondent's record-keeping inadequate and often
illegible – Where customers vulnerable due to remoteness,
limitations on education, impoverishment and low levels of
financial literacy – Where book-up system "tied"
Anangu customers to general store – Where customers had
understanding of basic elements of book-up system – Where
withdrawals authorised by customers – Where customers
generally supportive of book-up and respondent's business
– Where book-up protected customers from cultural practices
requiring sharing of resources with certain categories of kin
– Where book-up ameliorated effects of "boom and
bust" cycle of expenditure and allowed purchase of food
between pay days – Whether respondent's conduct
unconscionable within meaning of s 12CB(1) of Act.
Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty
Ltd [2019] FCA
TRADE MARKS — where the applicants seek relief for
trade mark infringement — whether the first respondent
contravened s 120(1) of the Trade Marks Act 1995 (Cth) by
using a mark that is deceptively similar to the applicants'
registered trade marks — consideration of the principles
relevant to deceptive similarity in relation to a word mark —
whether the use of a common surname would lead customers to have
cause to wonder about the applicants' products and the
respondents' products originating from the same source —
whether it is necessary to consider surrounding circumstances
— whether deceptive similarity is to be assessed having
regard only to the registered owner's actual use of its mark
— whether the first respondent used its own name in good
faith pursuant to s 122(1)(a)(i) of the Trade Marks Act
— whether the respondents knew or understood that the use of
the first respondent's own name may well cause confusion
CONSUMER LAW — where the applicants allege contraventions of
ss 18 and 29(1)(h) of the Australian Consumer Law — whether
the first respondent engaged in conduct that is misleading or
deceptive, or which is likely to mislead or deceive — whether
the first respondent represented that it and the applicants are the
same person — whether the first respondent represented that
its wines were produced by or at the direction of the applicants
— whether the first respondent represented that its wines
have the sponsorship or approval of, or an affiliation with the
applicants — consideration of the difference between
confusion and error — where the applicants adduced evidence
of confusion by customers and consumers
TORTS — where the applicants seek relief for the tort of
passing off — consideration of the principles relevant to
passing off — whether the applicants have established a
reputation in connection with wines — whether the respondents
represented that their wines were associated with, or approved or
endorsed by the applicants
ESTOPPEL — whether the applicants are estopped from asserting
trade mark infringement and contraventions of s 18 of the
Australian Consumer Law — consideration of the principles
relevant to promissory estoppel — whether the applicants made
representations on which the respondents relied — whether
such reliance was reasonable — whether the respondents
suffered detriment in reliance on the representations
Australian Competition and Consumer Commission v
Campbell [2019] FCA
886
PRACTICE AND PROCEDURE – ex parte application by
ACCC for freezing orders – alleged contraventions of the
Australian Consumer Law – whether freezing orders should be
made – whether ancillary disclosure orders should be made
– whether ACCC required to provide undertaking as to damages
- Competition and Consumer Act 2010 (Cth) s 137F
Australian Securities and Investment Commission v Whitebox
Trading Pty Ltd (No 7)
[2019] FCA 849
CORPORATIONS – securities index arbitrage trading
– alleged market manipulation – whether the placement
of certain orders for XJO Securities, including certain order
cancellations and reductions, in the Pre-Open Phase were made for
the purpose of affecting Opening Prices in the Opening Single Price
Auction of the market conducted by the Australian Securities
Exchange – whether defendants were trading with the intention
of creating or causing the creation of a false or misleading
appearance with respect to the market for and/or price for trading
in XJO Securities under s 1041B(1)(b) of the Corporations Act
2001 (Cth) – whether defendants were trading with the
intention of creating an artificial price for trading in XJO
Securities under s 1041A(1)(c) of the Corporations Act
2001 (Cth)
PPK Willoughby Pty Ltd v Baird
[2019] NSWSC 705
EVIDENCE – affidavit evidence – where
plaintiff sues defendants for negligence and misleading and
deceptive conduct – where evidence previously excluded from
plaintiff's claim for negligence – whether evidence
should be excluded from plaintiff's claim for misleading and
deceptive conduct – whether s 5D(3) of the Civil
Liability Act extends to evidence in a claim for misleading
and deceptive conduct
Keys Consulting Pty Ltd v CAT Enterprises Pty
Ltd [2019] VSCA
136
CONTRACT – Misleading or deceptive conduct –
Sale of business – Whether representations induced entry into
agreement – Measure of damages – Whether judge erred in
valuing business at nil – Whether judge erred in deducting
post-sale benefit – Onus on purchaser to establish value at
date of sale – Appeal allowed – Damages award set aside
– Australian Consumer Law (Competition and Consumer Act
2010, sch 2) ss 18, 236, 237, 243.
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.