In the media
ACCC guns for Andrew Forrest over call for iron ore
'cartel'
The Australian Competition and Consumer Commission is
investigating a call by Andrew Forrest for iron ore producers to
drive up the price by capping production, a practice federal
Treasurer Joe Hockey said would be akin to cartel behaviour (25
March 2015).
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Fortescue releases statement on Forrest's iron ore
comments
Fortescue Metals has released a statement relating to Chairman,
Andrew Forrest's, comments relating to capping iron ore
production. In it, reference is made to the provisions of section
51(2)(g) of the Act dealing with goods exclusively exported. The
ACCC has observed that iron ore is not exclusively
exported from Australia.
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Passengers to share in airline price fixing
lawsuit
The class action reportedly follows US government investigations
into price fixing in the air cargo industry, covering flights
between the US and Australia or Asia since 2000. The lawsuit claims
the airlines agreed to fix the prices of transpacific flights, so
passengers may have paid too much for their flights (25 March
2015).
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Federal Court orders $500,000 penalty for cleaning
franchise
The Federal Court has ordered a $500,000 penalty against South
East Melbourne Cleaning Pty Ltd for contraventions of the
Australian Consumer Law (ACL). The Court declared that Coverall
Melbourne had engaged in unconscionable conduct, made false or
misleading representations, and had contravened the Franchising
Code of Conduct in its dealings with two individuals who were
prospective franchisees and subsequently signed up to the cleaning
franchise (24 March 2015).
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Business awaits Ian Harper's report on competition
policy
Some of the more contentious recommendations, including amendments
to Section 46 of the Competition and Consumer Act, which
would introduce an effects test to existing misuse of market power
rules, will be lobbied the hardest – and loudest – by
big and small business (22 March 2015).
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Product safety and advertising in ACCC's
crosshairs
Australian Competition and Consumer Commission chairman Rod Sims
has named product safety, truth in advertising and misuse of market
power among the watchdog's priorities for 2015 (23 March 2015).
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Chairman outlines strong Australian Consumer Law
record
Chairman Rod Sims outlines the ACCC's consumer protection
activities at the National Consumer Congress in Sydney. ACCC
investigated many matters and instituted proceedings in eight new
competition cases and 20 consumer protection matters in the Federal
Court (20 March 2015).
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Protecting small businesses against unfair contract
terms
Small businesses often lack the time, legal expertise or
bargaining power to resist enforcement of unfair terms against
them. The Australian Small Business Commissioner has observed
instances of misuse of market power in contracting of telephone and
internet services; office or commercial leasing equipment; and
retail outlet leases (20 March 2015).
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ACCC appeals Pfizer decision
The ACCC has lodged a Notice of Appeal from the Federal
Court's decision on 25 February 2015 dismissing the ACCC's
proceedings against Pfizer Australia Pty Ltd (Pfizer). The ACCC had
alleged that Pfizer had contravened the Competition and
Consumer Act 2010 (the Act) by misusing its substantial market
power and engaging in exclusive dealing conduct for the purpose of
substantially lessening competition in relation to particular
cholesterol lowering products (18 March 2015).
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Federal court finds Safety Compliance misled small
businesses into purchasing safety products
The Federal Court has declared that Safety Compliance Pty Ltd
(Safety Compliance) contravened the Australian Consumer Law (ACL)
and the Trade Practices Act 1974 (Cth) (now called the
Competition and Consumer Act 2010 ) (the Act) by making false or
misleading representations and engaging in misleading or deceptive
conduct directed towards small businesses in connection with the
supply of safety wall charts and first aid kits (17 March 2015).
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Cases
Australian Competition and Consumer Commission v
EnergyAustralia Pty Ltd [2015] FCA 274
CONSUMER LAW – penalty hearing – admitted
contraventions of – s 18 of the ACL – misleading or
deceptive conduct – s 29 of the ACL – false or
misleading representations – representations concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy – conduct by agent telemarketer
– conduct by principal supplier of goods or services –
telephone representations – representations in written
material – promotion of electricity and/or gas plans –
admitted contraventions – whether orders sought by consent
appropriate in the circumstances. ENERGY AND RESOURCES –
National Energy Retail Law – explicit informed consent
– s 38 of the National Energy Retail Law – admitted
contraventions – penalty hearing – failure to obtain
explicit informed consent before transferring customers from
existing retailer – failure to obtain explicit informed
consent before entering customer into market retail contract
– whether orders sought by consent appropriate in the
circumstances. More...
Australian Competition and Consumer Commission v
South East Melbourne Cleaning Pty Ltd (in liq) (formerly known as
Coverall Cleaning Concepts South East Melbourne Pty Ltd) (No
2) [2015] FCA 257
TRADE AND COMMERCE – contraventions of Australian Consumer
Law – false and misleading representations –
unconscionable conduct – breaches of the Franchising Code of
Conduct – appropriate quantum of pecuniary penalty for
company in liquidation – general deterrence. Competition
and Consumer Act 2010 (Cth); Trade Practices Act 1974
(Cth). More...
BOQ Equipment Finance Ltd v Scott & Ors
[2015] QSC 060
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
MISLEADING OR DECEPTIVE CONDUCT GENERALLY – where the
plaintiff claimed payment of money lent to the defendants under a
bill of sale whereby the first and second defendants assigned two
printers to the plaintiff by way of security – where the
defendants claimed that they were induced to enter the agreement by
misrepresentations made by the operator of a franchise of the
plaintiff's parent company, the Bank of Queensland –
where the defendants claimed relief under s 87 of the Trade
Practices Act 1974 – where the alleged
misrepresentations were that the defendants would not have to make
any payment under the agreement unless and until there was a
further agreement to extend credit to them by the bank and that the
subject agreement was represented as an essential step towards
obtaining a debtor finance facility – where the defendants
claimed they should not have to repay the money they borrowed from
the plaintiff. TRADE AND COMMERCE – COMPETITION, FAIR TRADING
AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION
– MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS
– FALSE REPRESENTATIONS GENERALLY – where the plaintiff
claimed payment of money lent to the defendants under a bill of
sale – where the defendants claimed that they were induced to
enter the agreement by misrepresentations made by the operator of a
franchise of the plaintiff's parent company – where the
defendants claimed relief under s 87 of the Trade Practices Act
1974 – where the alleged misrepresentations were that the
defendants would not have to make any payment under the agreement
unless and until there was a further agreement to extend credit to
them by the bank and that the subject agreement was represented as
an essential step towards obtaining a debtor finance facility. More...
Samsung Electronics Australia Pty Limited v LG
Electronics Australia Pty Limited [2015] FCA
227
CONSUMER LAW – television commercials (TVCs) advertising 3D
TVs – whether TVCs misleading or deceptive or likely to
mislead or deceive – whether false or misleading
representations conveyed – where TVCs parody comparative
tests in comparing new 3D technology with conventional 3D
technology – use of humour and exaggeration – whether
scenes depicted in TVCs likely to be taken literally –
whether consumers likely to be led into error – whether
representations made with respect to any "future matter".
CONSUMER LAW – point of sale advertising representing 3D TV
is "Full HD" and "1080P" – meaning of
"Full HD" and "1080P" when used in relation to
3D TVs – whether "Full HD" or "1080P"
convey representations as to "viewable image" when TV
operating in 3D mode and viewed through 3D glasses – whether
point of sale material likely to convey representation that
viewable image in 3D mode is equivalent to resolution of 1920 x
1080p – significance of absence of recognised standard
against which to assess such claims – whether such
representations false or misleading in case of respondent's 3D
TVs having a display resolution of 1920 x 1080p. TORTS – tort
of injurious falsehood – elements of tort – whether
false representation conveyed – whether applicant established
that it suffered actual loss as a result of broadcast of TVC
alleged to convey false representation.
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Woollahra Municipal Council v Secure Parking Pty
Ltd [2015] NSWSC 257
TRADE AND COMMERCE - misleading or deceptive conduct - nature of
representation regarding intention to comply with terms of tender -
whether subjective intention of tenderer rendered its offer
non-conforming TRADE AND COMMERCE - misleading or deceptive conduct
- whether silence amounted to misleading or deceptive conduct -
where information otherwise publicly available. Judgment in favour
of the plaintiff for $6,940,811.41. First Cross-Claim Cross-Summons
dismissed.
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