In the media
Case against Ramsay Health Care dismissed
The Federal Court has dismissed the ACCC's case
against Ramsay Health Care Australia Pty Ltd (Ramsay) for alleged
misuse of market power and exclusive dealing. Whilst the Court
found that Ramsay had a substantial degree of market power in the
supply of private in-patient surgery services to surgeons in Coffs
Harbour, the Court did not find there was sufficient evidence
Ramsay made the alleged threats to surgeons (12 March 2020).
More...
BAR Group pays penalty for alleged misleading
advertising
B.A.R Group Pty Ltd (BAR Group) has paid a penalty of
$12,600 after the ACCC issued an infringement notice for allegedly
misleading consumers about the running power of a portable
generator. The ACCC alleges that BAR Group's representation was
false or misleading, in breach of the Australian Consumer
Law. (11 March 202).
More...
Ad tech and ad agency services inquiry kicks off
The ACCC is calling for feedback and information about the
digital advertising technology supply chain and advertising agency
services in Australia. Views are sought from all companies who buy
digital display advertising (10 March 2020).
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TWU urges Aldi to improve supply chain safety following
court appearance
The Transport Workers' Union claims Aldi failed in its
bid to silence truck drivers and unionists from speaking out about
safety after the retail giant lost the Federal Court case. Aldi
Australia has also responded with "We feel vindicated with
[the] judgement, as it has clearly been stated by the court that
the TWU's conduct has been misleading and deceptive" (10
March 2020).
More...
Bushfire crisis highlights gaps in fundraising laws that
government refuses to fix: Coalition for Fundraising Reform
"During the bushfires, it wasn't the states and
territories ensuring that fundraisers weren't engaging in
misleading or deceptive conduct, it was the ACCC. The reality is
that the ACCC, working with the ACNC, is the best placed body in
Australia to ensure integrity in charitable fundraising. Also, the
Australian Consumer Law has a readymade mechanism for the ACCC to
work with the states and territories." (06 March 2020).
More...
Private health insurance premiums rise despite growing
exclusions
For the first time, the majority of hospital treatment
policies held by Australians now contain exclusions, the latest
ACCC annual report into the private health insurance industry has
found. More than 57 per cent of policies held by Australians
contain exclusions, up from about 44 per cent in the previous year
(02 February 2020).
More...
Australians spent $24.5bn on private health in
2018-19
This is despite receiving $20.7 billion in benefits,
according to the ACCC's health insurance report released
indicating premium-to-benefits discrepancy is narrowing, thanks to
new standards implemented in 2019. The consumer commission is
currently undertaking enforcement action relating to
'misleading and deceptive' conduct regarding consumer data
in the health sector (02 March 2020).
More...
Proposal to set minimum prices on welding equipment
raises competition concerns
The ACCC has announced it plans to revoke a resale price
maintenance (RPM) notification lodged by
Weldclass, which would have prevented retailers selling certain
machines at a discount. (28 February 2020).
More...
Issues in agricultural machinery markets to be
examined
Agricultural machinery: After-sales markets identifies a
number of initial concerns relating to competition and fair trading
issues, which the ACCC is seeking more information about. Most
modern agricultural machinery has extensive data collection
capabilities, but manufacturer policies on data ownership and
management may raise privacy and competition issues (28 February
2020).
More...
Practice and Regulation
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: 04 March
2020
This report analyses key competition and consumer developments and
trends in the private health insurance industry between 1 July 2018
and 30 June 2019, including ACCC enforcement and other actions
relating to the health sector. More...
ACMA: Implementation of the Spectrum Pricing Review -
consultation 07/2020
This paper outlines our proposed guidelines and focus
areas as we implement the Spectrum Pricing Review.
Status Open, submissions close on 19 April 2020. Consultation
number IFC 7/2020.
More...
ACCC inquiry: ad tech and ad agency services
The ACCC's ad tech and ad agency services inquiry has
commenced with the ACCC releasing an issues paper and seeking
submissions from interested parties. Submissions are due by 21
April 2020 (10 March 2020).
More....
ACCC consultation: 26 GHz spectrum licences
The ACCC is seeking views on the likely demand for the 26
GHz spectrum licences, the potential uses for the spectrum, the
markets where this spectrum will be used, and any competition
issues associated with how this spectrum is allocated. The ACCC is
inviting submissions from interested parties by 27 March
2020.
The Minister has asked for the ACCC's advice by mid-May 2020.
The consultation paper is available
here.
ACCC Discussion Paper: Agriculture machinery –
after sales markets
The ACCC has released a discussion paper focusing on
agriculture machinery aftermarkets. The associated survey is open
until 5 April and submissions can be made on the
ACCC's consultation hub. See the discussion paper
here (28 February 2020).
NSW: Changes to the residential tenancy laws
Changes to the residential tenancy laws start on 23 March
2020, with amendments to the Residential Tenancies Act 2010 (the
Act) and the new Residential Tenancies Regulation 2019 (the new
Regulation).
Strengthened information disclosure requirements - A landlord or
agent must not make false or misleading statements or knowingly
conceal certain material facts from a prospective tenant before
they sign an agreement. The list of current material facts is
available in the information statement (checklist for new tenants).
More...
Cases
Australian Competition and Consumer Commission v Ramsay Health Care
Australia Pty Limited [2020] FCA
308
COMPETITION – proposal to establish rival day
surgery to existing day surgery and private hospital in Coffs
Harbour – alleged misuse of market power and exclusive
dealing in contravention of ss 46 and 47 respectively of the
Competition and Consumer Act 2010 (Cth) – failure to
establish to the requisite standard that the pleaded conduct, which
related to certain conversations, involved contravening
conduct
EVIDENCE – application under ss 135 and 136 of the Evidence
Act 1995 (Cth) to exclude or restrict parts of evidence given prior
to retrieval of a sound recording – unfair prejudice not
established in circumstances where relevant witnesses could be
recalled and cross-examined on the basis of the sound
recording
Competition and Consumer Act 2010 (Cth), ss 46, 47; Evidence Act
1995 (Cth), ss 135, 136, 140
ALDI Foods Pty Limited as General Partner of ALDI Stores (a
Ltd Partnership) v Transport Workers' Union of
Australia [2020] FCA
269
COMPETITION LAW – secondary boycotts –
misleading and deceptive conduct
COMPETITION LAW – whether a union is a trading corporation
– whether statements made by union made in trade or commerce
– part of industrial campaign – part of conduct engaged
in to inform the public
INDUSTRIAL LAW – union protests – freedom of speech
– whether statement made in trade or commerce
TORT – injurious falsehood – no malice – no loss
or damage – no relief
Constitution s 51; Competition and Consumer Act 2010 (Cth) ss 4, 6,
45D, 131, Sch 2 (Australian Consumer Law) ss 18, 31; Fair Work
(Registered Organisations) Act 2009 (Cth); Trade Practices Act 1974
(Cth) ss 52, 53
Gill v Ethicon Sarl (No 6) [2020] FCA
279
CONSUMER LAW — representative action — nine
urogynaecological medical devices made with polypropylene intended
for permanent implantation in the female pelvis
PRACTICE AND PROCEDURE — representative action —
answers to common issues/questions
RELIEF — injunctive relief — where information and
warnings given by respondents about risks of injury from
implantation of medical devices found to be inadequate and
misleading or deceptive and proposed injunction would prevent
respondents from supplying, distributing, marketing or promoting
any medical devices without including in the instructions for use
for each device and any promotional material relating to it a
suitable warning — where proposed injunction unlikely to
benefit group members and where changes made to instructions for
use after hearing of action, whether injunctive relief should be
granted — where recent amendments to Therapeutic Goods
(Medical Devices) Regulations 2002 (Cth) require certain
information about risks and other matters to be included in cards
and leaflets to be sent to surgeons and patients, whether proposed
injunction should extend to inclusion of proposed warning in
instructions for use of those devices where devices are
manufactured overseas and supplied with identical instructions for
use throughout the world
Australian Consumer Law (Sch 2 of the Competition and Consumer Act
2010 (Cth)) ss 232, 235
JWR Productions Australia Pty Ltd v Duncan-Watt (No
2) [2020] FCA 236
DEFAMATION – hybrid publication
CONSUMER LAW – claim under Competition and Consumer Act 2010
(Cth) Sch 2, Australian Consumer Law (ACL) for misleading or
deceptive conduct –representations made to a journalist
– representations in a Facebook Post which provided a link to
a newspaper article – whether conduct was "in trade or
commerce" – whether the representations were in fact
conveyed by the relevant conduct – whether representation a
statement of fact or opinion – whether the representations
conveyed were misleading or deceptive or likely to mislead or
deceive
CONSUMER LAW – claim under the ACL for misleading or
deceptive conduct – whether website content conveyed
representations about authorship of a novel – whether the
conduct was in "trade or commerce" – whether the
representations were in fact conveyed by the relevant conduct
– claim for declaratory relief – whether any benefit to
making of the declaration – whether financial loss or damage
sustained from the conduct – declaratory relief refused
COPYRIGHT – whether infringement of copyright
COPYRIGHT – whether use of photographs on website was an
infringement of copyright
TORTS – detinue Competition and Consumer Act 2010 (Cth) s
6(3), Sch 2 cl 18
Copyright Act 1968 (Cth) ss 10, 13, 31, 36, 115, 196; Defamation
Act 2005 (NSW) ss 4, 25, 26, 28
Fair Trading Act 1987 (NSW) s 4, Div 2 ss 27, 28, 29, 30, 31, 32,
Div 3 ss 33, 34
Infocus Tax and Business Advisory Pty Ltd v
Andrews [2020] NSWSC
168
CIVIL PROCEDURE — Separate determination of
questions — Where appropriate
COSTS — Security for costs — Relevant factors
Competition and Consumer Act 2000 (Cth); Uniform Civil Procedure
Rules 2005 (NSW)
The statement of claim also alleges claims against all defendants
under s 18 of the Competition and Consumer Act 2000 (Cth) Schedule
2 (the Australian Consumer Law). The allegation is to the effect
that Mr Andrews Jr and VVV represented to Announcer that the
warranties in the sale agreement were correct, which was misleading
and deceptive or likely to mislead and deceive.
Wang v Polaris Holdings Rosebery Pty Ltd
[2020] NSWSC 213
LAND LAW – contract for sale of land – claim
for rescission pursuant to the rule in Flight v Booth [1834] EngR
1087; (1834) 1 Bing (NC) 370 – plaintiff entered into
contract to purchase a stratum lot in an unregistered plan of
subdivision – draft plan annexed to contract showed areas at
various levels – whether areas should be understood as areas
of the lot at those levels or floor areas at those levels –
held that areas should be understood as areas of the lot – no
substantial discrepancy between the subject matter of the sale and
what was able to be conveyed – plaintiff had no right to
rescind
LAND LAW – contract for sale of land – deposit –
vendor entitled to forfeit deposit upon termination for
purchaser's failure to complete – statutory return of
deposit – whether vendor made misrepresentation as to floor
space in building once constructed – no misrepresentation
made by vendor – no grounds for order for return of deposit
under s 55(2A) of Conveyancing Act 1919 (NSW)
MISLEADING AND DECEPTIVE CONDUCT – contract for sale of
stratum lot in unregistered plan of subdivision – draft plan
annexed to contract showed areas of various levels – whether
vendor made misrepresentation as to floor space in building once
constructed – no misrepresentation made by vendor –
vendor did not engage in conduct that was misleading or deceptive
or likely to mislead or deceive within the meaning of s 18 of
Australian Consumer Law – no grounds for order for return of
deposit
Australian Consumer Law
Tomlak Pty Ltd & Ors v Westpac Banking
Corporation [2020] VSC
79
BANKS AND BANKING – Where Code of Banking Practice
2004 incorporated into contract – Whether defendant exercised
care and skill of a diligent and prudent banker in selecting and
applying their credit assessment methods and in forming their
opinion about ability to repay credit facility – Where credit
facility sought by plaintiffs for purchase of land for development
or sale with permits for development – Where defendant had
knowledge of proposed use of credit facility for purchase of land
– Where defendant had knowledge of sources of income
available to plaintiffs – Where defendant did not have
plaintiffs' financial statements for the immediately preceding
two years – Where defendant did not inform plaintiff of need
to provide cash equity for development – Defendant exercised
care and skill of a diligent and prudent banker in selecting and
applying their credit assessment methods – Code of Banking
Practice 2004, cl 25.1 – Doggett v Commonwealth Bank of
Australia [2015] VSCA 351; (2015) 47 VR 302 applied
BANKS AND BANKING – Where Code of Banking Practice 2004
incorporated into contract –Where defendant regularly
approved excesses on overdraft account – Where defendant
provided temporary overdraft facilities and extended existing
credit facilities – Where defendant tolerated plaintiffs'
failures to comply with requests for financial information –
Defendant used best endeavours and left no stone unturned in
assisting plaintiffs to overcome their financial difficulties with
credit facility – Code of Banking Practice, cls 2.2 and
25.2
MISLEADING OR DECEPTIVE CONDUCT – Whether defendant falsely
represented to plaintiffs that an application for construction
finance had a substantial prospect of success – Where
defendant required plaintiffs to create a detailed financial plan
– Where approval of further excesses on overdraft account
contingent on detailed financial plan – Where plaintiffs
issued with default notices – Defendant did not mislead or
deceive plaintiffs – Australian Consumer Law, s 18
MISLEADING OR DECEPTIVE CONDUCT – Whether defendant misled or
deceived the plaintiffs by proposing a conditional repayment plan
and then subsequently serving demands for payment within one
business day – Where defendant issued plaintiffs with a
notice of default subsequent to conditional repayment plan –
Where defendant provided a funding proposal subsequent to issuing
notice of default – Where plaintiff failed to respond to
funding proposal – Where defendant expressly reserved their
rights – Defendant did not mislead or deceive plaintiffs
– Australian Consumer Law, s 18
UNCONSCIONABLE CONDUCT – Whether defendant engaged in
unconscionable conduct towards the plaintiffs – Defendant did
not engage in unconscionable conduct – Australian Consumer
Law, ss 20 and 21 – Paciocco v Australian New Zealand Banking
Group Limited (2015) 236 FCR 199 applied
Legislation
Commonwealth
Acts Compilation
Designs
Act 2003
10/03/2020 Act No. 147 of 2003 as amended
Intellectual
Property Laws Amendment (Productivity Commission Response Part 2
and Other Measures) Act 2020
02/03/2020 - Act No. 9 of 2020 as made
Regulations
Biosecurity
(Suspended Goods—Cats and Dogs Malaysia) Determination
2020
11/03/2020 - This instrument suspends the importation or
bringing into Australia of cats and dogs that are companion or
assistance animals from Malaysia for a period of 6 months from the
commencement of the instrument, with some exceptions.
(iii certain defects in Malaysia's processes to provide
veterinary health certifications mean that there is a risk that
cats and dogs being imported to Australia from Malaysia may have
been exposed to diseases exotic to Australia [but endemic to
Malaysia].
(iv) In particular, veterinary health certification provided in
support of the importation of cats and dogs arriving from Malaysia
may have been false and misleading
NSW
Regulations and other miscellaneous instruments
Fair
Trading Amendment (Code of Conduct for Short-term Rental
Accommodation Industry) Regulation 2020 (2020-88) —
published LW 13 March 2020
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.
