In the media
ACCC rejects proposal to set minimum prices for Dewalt
power tools
The ACCC has rejected a proposal by Stanley Black &
Decker to set a minimum advertised price for Dewalt brand power
tools, accessories and attachments. Stanley Black & Decker
lodged a resale price maintenance notification on 17 October 2019
and on 27 March 2020 the ACCC issued a draft notice proposing to
revoke; no submissions were received (05 June 2020).
More...
Vocus says NBN pricing still not fit for purpose
Vocus Group chief executive Kevin Russell says there is a
pricing structure to the NBN that is not fit for purpose. The high
wholesale prices charged by NBN Co have been a perennial point of
friction between it and the retail telcos (05 June 2020).
More...
Coronavirus 'exposing deep flaws' in
Australia's medical device regulation
The chaos of the COVID-19 crisis has exposed deep flaws in
the way Australia regulates medical equipment, critics say. Former
ACCC Chairman Professor Allan Fels said manufacturers and vendors
of substandard face masks could be prosecuted under consumer law,
but the fact the TGA had allowed them to be listed on the ARTG
could impede the success of any such case (03 June 2020).
More...
The game is up': Sydney burger chain's food
fight with In-N-Out continues
A Sydney burger chain is again drawing the ire of US fast
food legend In-N-Out Burger by launching a "Down N'
Out" food truck, months after the Federal Court found the name
to be "deceptively similar" and likely to cause confusion
(03 June 2020).
More...
NBN Co misled Canberra consumers about needing to move
to the NBN
NBN Co has admitted in a court-enforceable undertaking to
the ACCC that it misled Canberra consumers who lived in areas where
the NBN was operating into thinking that their telephone and
internet services supplied over the TransACT Network would be
disconnected if they did not move to the NBN (02 June 2020).
More...
Dairy farmers react to historic milk price announcement
as new code of conduct takes effect
Under the new dairy code of conduct, milk processors all
released their opening prices for the coming year simultaneously.
It was a requirement of the mandatory new code of conduct which was
introduced to make things fairer for farmers and enable more
competition in the sector (02 June 2020).
More...
Investigation into Qantas's stake in Alliance
Airlines continues
The ACCC is providing this update in response to queries
by various stakeholders. The Australian aviation industry is in a
state of major upheaval and now, more than ever, we are concerned
that competition by smaller airlines is not hindered (01 June
2020).
More...
Federal Court orders sky high penalty against STA
Travel
In the first decision to be handed down with respect to
conduct covered by the new penalty regime under the Australian
Consumer Law (ACL), the Federal Court has ordered
that STA Travel Pty Ltd (STA Travel) pay a pecuniary penalty of $14
million for making representations that were false, misleading or
deceptive in contravention of sections 18, 29(1)(g) and 34 when
advertising its "MultiFLEX Pass" product. Updated 27 May
2020 Australian Competition and Consumer Commission v STA Travel
Pty Ltd (29 May 2020).
More...
TGA initiates court proceedings against MMS Australia
and director Charles Barton for alleged unlawful advertising
The TGA has initiated proceedings in the Federal Court of
Australia in response to the alleged unlawful advertising of
Miracle Mineral Supplement (MMS), dimethyl
sulfoxide (DMSO) and other medicines by Southern
Cross Directories Pty Ltd trading as MMS Australia (29 May 2020).
More...
Flu ad warning
The Therapeutic Goods Administration
(TGA) is reminding advertisers that they must not
undermine public health campaigns, when promoting cold and flu
treatments (28 May 2020). More...
Airbnb 'turned their back' on customers with
'misleading' policy changes as COVID-19 crisis
worsened
Klara Kalocsay is one of many disgruntled Airbnb customers
globally who say the company's policy for refunding customers
who have been forced to cancel their travel plans due to COVID-19
restrictions is packed with loopholes (28 May 2020).
More...
GSK and Novartis to pay $4.5 million in penalties over
Voltaren Osteo Gel claims
The Federal Court accepted admissions by Novartis Consumer
Health Australasia Pty Ltd (Novartis) and GlaxoSmithKline Consumer
Healthcare Australia Pty Ltd (GSK) that they made false or
misleading representations in the marketing of pain relief products
(28 May 2020).
More...
Class action launched over Boral's fumble in the
US
Maurice Blackburn has lodged a class action in the Federal
Court against building materials supply company Boral. The class
action law firm alleges Boral breached its continuous disclosure
requirements and/or engaged in misleading or deceptive conduct in
relation to its US business (28 May 2020).
More...
Allpulse Technologies fined $50,400 for alleged
advertising breaches
The TGA has issued four infringement notices totalling
$50,400 to Brisbane based company Allpulse Technologies Pty Ltd (28
May 2020).
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Canberra developers to pay compensation over
'misleading and deceptive' apartment GST charges
Three of Canberra's biggest property developers will
pay compensation for misleading and deceptive conduct in charging
homebuyers GST on apartments. The finding comes as a class action
against the 136-unit Governor Place in Barton — a joint
venture between the Morris Property Group and Doma Group — is
awaiting the court to approve a $2.5 million settlement (25 May
2020).
More...
Myth busted over COVID and 5G link
Australians have been warned to beware of misinformation
linking Coronavirus to 5G mobile technology.
Chief Medical Officer, Brendan Murphy said the scientific evidence
showed that wireless telecommunications, including 5G, do not
weaken people's immune systems and do not place us at higher
risk of getting viruses such as COVID-19 (25 May 2020).
More...
Practice and regulation
Farmers and processors need to know their dairy code
rights and obligations
The mandatory industry c
ode of conduct, which came into effect on 1 January 2020,
requires most dairy processors to publish on their websites by 1
June standard form milk supply agreements to cover all the
circumstances in which they intend to purchase milk in the coming
financial year. The ACCC has published information on its
website, including a
fact sheet for farmers, to help ensure that all parties
understand their rights and obligations under the new code (26 May
2020).
More...
Guidelines on Part XICA - Prohibited conduct in the
energy market
These guidelines set out how the ACCC will interpret Part
XICA of the Competition and Consumer Act 2010 (Cth) (CCA) and they
explain the general approach the ACCC will take in investigating
alleged contraventions of Part XICA (prohibiting certain conduct
involving retail pricing, financial contract markets and
electricity spot markets). Part XICA will be in effect from 10 June
2020 to 1 January 2026 (11 May 2020).
More....
News media bargaining code: Concepts paper
The ACCC has released a concepts paper seeking views on
each of the issues to be covered in a mandatory code to address
bargaining power imbalances between Australian news media business
and each of Google and Facebook. Responses are due by 5 June 2020.
View the
concepts paper, (19 May 2020)
Container Refund Scheme - price monitoring review:
issues paper
While the Queensland Government anticipates that beverage
manufacturers will increase the price of beverages as a result of
the scheme, this review was commissioned to ensure consumer
interests are protected from unjustified pricing behaviours.
Submissions are due by close of business 12 June 2019. They can be
lodged online or via post.
More...
Cases
James v Australia and New Zealand Banking Group
Ltd [2020] NSWCA
101
(1) Dismiss the summons filed on 3 October 2019 seeking
leave to appeal from the order of Ball J dismissing an application
to set aside the judgment entered on 16 May 2014.
(2) Order that the applicant pay the respondent's costs in this
Court.
JUDGMENTS AND ORDERS – setting aside – consent judgment
– general power to set aside judgment or order –
challenge to validity of agreement – whether judgment based
on agreement – Uniform Civil Procedure Rules 2005 (NSW), r
36.15(1)
JUDGMENTS AND ORDERS – amending, varying and setting aside
– consent judgement – orders entered – finality
of entered orders
CONTRACTS – grounds for setting aside – misleading or
deceptive conduct – non-disclosure of information –
relevance of actual or constructive knowledge of silent party as to
complainant's beliefs – relevance of undisclosed beliefs
of complainant
CIVIL PROCEDURE – Court of Appeal – leave to appeal
– dismissal – lack of issue of principle, question of
general public important or an injustice to the applicant going
beyond merely arguable
Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
Trade Practices Act 1974 (Cth), ss 52, 82
The Owners - Strata Plan No 87231 v 3A Composites GmbH (No
3) [2020] FCA 748
CONSUMER LAW – representative proceedings pursuant
to Pt IVA of the Federal Court of Australia Act 1976 (Cth) –
where applicant alleges products were not fit for purpose or not of
merchantable or acceptable quality – where applicant claims
loss or damage suffered arising out of defective building work
– claims for statutory compensation and damages under the
Trade Practices Act 1974 (Cth), the Competition and Consumer Act
2010 (Cth) and the Australian Consumer Law
PRACTICE AND PROCEDURE – representative proceedings under
Part IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act)
– where order sought requires group members to register and
provide certain information – whether Court has power to make
such an order under s 33ZF of the FCA Act – whether order is
appropriate to ensure that justice is done in the proceeding
PRACTICE AND PROCEDURE – claim for contribution –
PRACTICE AND PROCEDURE – limitation provisions –loss or
damage – whether "long stop" limitation provisions
relating to defective building work applied to potential claims for
contribution
Civil Procedure Act 2005 (NSW) ss 173, 177, 179(b), 183
Competition and Consumer Act 2010 (Cth) Sch 2 Australian Consumer
Law ss 18, 29, 33, 54, 271, 236, 271, 327
Owners also alleges that 3A and Halifax made misleading
representations or engaged in misleading conduct concerning the
nature of the Alucobond panels contrary to ss 53 and 55 of the TPA
and ss 29 and 33 of the AC
BPESAM IV M Limited v DRA Global Limited
[2020] FCA 738
CORPORATIONS – selective share buy-back scheme
– procedures in Div 2 of Pt 2J.1 of the Corporations Act 2001
(Cth) – general duty to make full and fair disclosure to
shareholders – duty under s 257D(2) to disclose all
information material to the decision how to vote on the resolution
– special resolution passed approving share buy-back scheme
– whether resolution invalid on the basis of incorrect
financial information provided to shareholders – where valid
shareholder approval was a condition precedent of the share
buy-back agreements – whether s 259F of the Corporations Act
cures any defect in the resolution – Knauf Plasterboard Pty
Ltd v Plasterboard West Pty Ltd (in liq) (2017) 254 FCR 559
considered
CORPORATIONS – misleading or deceptive conduct – s
1041H of the Corporations Act and s 12DA of the Australian
Securities and Investments Commission 2001 (Cth) (ASIC Act) –
materiality – financial statements issued and then re-issued
due to discovery of substantial errors – whether initial
financial statements were materially misleading in relation to
shareholder approval of a share buy-back scheme – where
company represented that the erroneous financial statements were a
true and fair view of the company's position – where
errors were not known and could not have been ascertained at the
time of approval – consideration of subjective knowledge test
under s 257D(2) and the objective test under s 1041H of the
Corporations Act – principle in Fraser v NRMA Holdings Ltd
(1995) 555 FCR 452 applied
CONTRACTS – construction – condition precedent for
execution of share buy-back agreement – waiver clause –
whether authority to waive is absolute or confined to certain
circumstances – where the terms require consideration only of
likelihood and timing of the condition precedent being satisfied
– whether ambiguity in the terms is required for regard to be
had to the commercial context – where both the terms and the
commercial context indicate authority to waive is confined to
specific circumstances only
REMEDIES – injunctions and declarations – sources of
power to grant orders sought derived from s 23 of the Federal Court
of Australia Act 1976 (Cth), s 1324 of the Corporations Act and s
12GD of the ASIC Act – whether a sufficient nexus exists
between the injunction sought and the conduct that constitutes the
contravention – whether policy considerations underlying s
259F(1) provide a discretionary reason not to grant an injunction
– whether the applicants lack standing to pursue injunctive
relief
REMEDIES – injunctions and declarations – relief sought
in relation to share buy-back agreements – where applicant is
not a party to the agreements – where the relevant
counterparties to the agreements have not been joined –
whether counterparties must be joined in order for the relief to be
granted – consideration of the effect of the relief on the
counterparties – whether counterparties would be entitled to
set aside any adverse orders based on the principle in John
Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010]
HCA 19; (2010) 241 CLR 1 – where relief sought is confined to
enforcing the proper construction of the agreement –
principle in News Ltd v Australian Rugby Football League Ltd [1996]
FCA 870; (1996) 64 FCR 410 applied
Trade Practices Act 1974 (Cth) s 52
Australian Competition and Consumer Commission v
GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No
2) [2020] FCA 724
CONSUMER LAW – where parties agreed on the penalty
and declarations to be made following admitted contraventions of ss
18, 29(1) and 33 of the Australian Consumer Law – where the
respondents had conveyed by implied representation that there were
material differences between two products, Osteo Gel and Emulgel,
when in fact they were the same – held: agreed form of
declaration and penalty of $4.5 million approved
COSTS – where the respondents had admitted some
contraventions prior to the liability hearing and denied others
– where the disputed contraventions were not made out –
held: the respondents pay the applicant's costs of the
proceeding up to and including the date admissions were made
– the applicant pay the respondents' costs of the
proceeding from the date after admissions were made up to and
including the date of the liability judgment – the
respondents pay costs thereafter
Australian Consumer Law (contained in Sch 2 of the Competition and
Consumer Act 2010 (Cth)) ss 18, 29(1), 29(1)(g), 33, 224(4);
Competition and Consumer Act 2010 (Cth) s 76(3); Evidence Act 1995
(Cth) s 191
Legislation
Commonwealth
Regulations
Competition
and Consumer (Industry Codes—Franchising) Amendment (New
Vehicle Dealership Agreements) Regulations
2020
29/05/2020 - These regulations amend the Competition and
Consumer (Industry Codes—Franchising) Regulation 2014 to
provide end of term arrangements, capital expenditure disclosure
and access to dispute resolution for new car dealership
agreements.
Competition
and Consumer (Price Inquiries) Amendment Direction
2020
26/05/2020 – No longer in force - Date of repeal 28
May 2020
Bills
Telecommunications Legislation Amendment (Competition and
Consumer) Bill 2019
Assent Act no: 47 Year: 2020 25 May 2020
Introduced with the Telecommunications (Regional Broadband Scheme)
Charge Bill 2019, the bill amends the: Competition and Consumer Act
2010 and Telecommunications Act 1997 in relation to: Layer 2
bitstream services; and statutory infrastructure providers;
Competition and Consumer Act 2010 and Telecommunications Act 1997
and two legislative instruments in relation to local access lines;
Competition and Consumer Act 2010, Telecommunications Act 1997 and
Telecommunications (Consumer Protection and Service Standards) Act
1999 in relation to funding of fixed wireless broadband and
satellite broadband; and National Broadband Network Companies Act
2011 to require NBN Co to provide certain data about premises
connected, or due to be connected, to the NBN. Also repeals four
declarations.
NSW
Regulations and other miscellaneous instruments
Electricity
Supply (General) Amendment (Remote De-energisation and
Re-energisation) Regulation 2020 (2020-226) — published
LW 29 May 2020
Liquor
Amendment (COVID-19 Licence Endorsements and Temporary Freezes)
Regulation 2020 (2020-227) — published LW 29 May
2020
National
Energy Retail Law (Adoption) Amendment (De-energisation and
Re-energisation Charges) Regulation 2020 (2020-228) —
published LW 29 May 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.