Australia: Competition & Consumer Law - What's News - 13 April 2015

Last Updated: 16 April 2015
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2016

In the media

Australian Solar Anti-Dumping Investigation May Be Terminated
The Australian Anti-dumping Commission has been tasked with investigating claims of alleged dumping of some solar panels exported from China. "Dumping" is a form of predatory pricing, where manufacturers export a product to another country at a price either below the price charged in its domestic market or below its cost of production (08 April 2015). More...

ANZ wins penalty bank fees class action appeal
In Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 the Federal Court Full Court reversed Justice Gordon's decision in 2014 that the Late Payment Fees charged by ANZ on Mr Paciocco's consumer credit cards constituted a penalty at common law and a penalty in equity. The Federal Court ruled in February that late payment fees the bank charged customers were extravagant, exorbitant and unconscionable (08 April 2015). More... More... More...

Actrol Parts Pty Ltd to pay $520,000 for carbon tax related false or misleading representations
The Court found Actrol had made false or misleading representations in a letter sent to approximately 8000 of its customers and posted on its website concerning the reasons for Actrol implementing significant increases in the price of certain hydrofluorocarbon (HFC) refrigerants (R134a, R410A, R404A, R407C and R507) which took effect from 1 July 2012 (08 April 2015). More...

AGL 'misled' customers on discounts, SA court told it will pay $785k compensation
Electricity retailer AGL will pay back $785,000 to customers the Federal Court has ruled it misled. Dan Star for the ACCC said AGL agreed a fine of $700,000 would be appropriate, based on other similar matters and on AGL's prior record and said the court also should make publication orders so affected customers and the wider community knew AGL had engaged in misleading and deceptive behaviour (01 April 2015). More...

Small business critical of 'academic' Harper review
Peter Strong from the COSBOA believes the review of competition laws by economist Professor Ian Harper has watered down plans to stop big companies using their market power to destroy smaller rivals. The review recommended the law be changed to focus on protecting competition rather than individual competitors using an effects test, which would measure if competition in a market had been substantially lessened (02 April 2015). More...

Bruce Bilson Minister for small business says Harper Competition Review offers to strengthen small business competition powers
Bruce Bilson Minister for small business says Harper Competition Review offers to strengthen small business power to collectively bargain, even collectively boycott (01 April 2015). More...

Competition watchdog fines liquor group for misleading consumers with 'Aussie' beer made in China
The Consumer watchdog has fined a penalty of $10,200 for an Australian liquor cooperative for selling Chinese made beer labelled as an 'Aussie' product. The ACCC found the beer was made in China, and ruled the label could mislead consumers. It did not dispute whether Australian malt was used (31 March 2015). More... More...

ACCC welcomes pro-competitive recommendations of Harper review
The ACCC welcomes the release of the Competition Policy Review Panel's final report. It sets out many pro-competitive reforms which, if adopted, could significantly enhance economic productivity over the years ahead. The ACCC particularly supports the Report's findings on roads, shipping, intellectual property and parallel imports (31 March 2015). More...

ACCC v Origin Energy Electricity Limited [2015] FCA 278: Origin To Pay $2 Million For Unlawful Door-To-Door Sales Tactics
In the case of ACCC v Origin Energy Electricity Limited [2015] FCA 278, the Federal Court has ordered Origin Energy Electricity Limited (Origin) to pay $2 million in penalties in relation to unlawful door-to-door selling practices in proceedings brought by the ACCC. The Court also ordered Origin's marketing company, SalesForce Australia Pty Ltd (SalesForce), to pay $325,000 in penalties (31 March 2015). More...

In practice and courts, published reports

Harper Review: Section 46 Recommendations, 31 March 2015
The Review found that the current s 46, which focuses on a subjective "purpose" test does not sufficiently distinguish between pro-competitive conduct and anti-competitive conduct and is therefore deficient in its application by rendering competition that should be welcomed, as conduct in breach of the section. The panel has recommended that the test be altered so that the focus is what objective effect the conduct has on competition and whether that conduct substantially lessens competition. In the Final Report, the panel has withdrawn support for a defence previously advocated in the Draft Report. The recommended defence stated that conduct would not fall within s 46 if it was: a rational business decision by a corporation that did not have a substantial degree of power in the market, and likely to have the effect of advancing the long-term interests of consumers. More...

Opinion: Effects test will hamper competitors
Chris Bowen, AFR, 09 April 2015. Overview of the Harper recommendation and legal challenges to amend section 46 of the Competition and Consumer Act to include a so-called "effects test". In general terms, an effects test is shorthand for changes to the existing misuse of market power provision to include conduct by firms with a substantial degree of market power that have the purpose, effect or likely effect of substantially lessening competition. More...


Australian Competition & Consumer Commission v Origin Energy Electricity Limited [2015] FCA 278
CONSUMER LAW – admitted contraventions – whether orders sought by consent appropriate in the circumstances – whether pecuniary penalties sought within the permissible range – compliance program – publication order – declaratory relief. The Federal Court of Australia (FCA) has imposed a total of $2m and $405,000 as pecuniary penalties against Origin Energy Electricity Limited and Salesforce Australia Pty Ltd, respectively, in relation to unlawful door-to-door selling practices. Competition and Consumer Act 2010 (Cth) s 4. Competition and Consumer Legislation Amendment Act 2011 (Cth). More...

Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50
BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the "tests" in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic). LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law. Appeal allowed. More...

Australian Competition and Consumer Commission v Actrol Parts Pty Ltd [2015] FCA 312
CONSUMER LAW – misleading and deceptive conduct – where the respondent admitted to making false, misleading or deceptive representations regarding the reasons for increasing the prices of products supplied by the respondent – where the representations were express and implied – where the parties submitted a statement of agreed facts, draft consent orders and joint submissions on relief – whether the relief proposed by the parties of a declaration, injunction, pecuniary penalty, publication order, verification affidavit and an order for a compliance program should be granted – the matters to be considered in determining whether the pecuniary penalty proposed by the parties is appropriate – Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss 18, 29. Held: Orders made for a declaration, injunction, publication order, verification affidavit and implementation of a compliance program. Pecuniary penalty of $520,000 imposed. More...

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.

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