Australia: Competition and Consumer Law - What's News - 4 August 2015

In the media

ACCC unsuccessful in appeal by Flight Centre
The Full Court of the Federal Court of Australia has allowed an appeal by Flight Centre Travel Group Limited (Flight Centre) against a decision of the Federal Court in which Flight Centre was found to have attempted to induce anti-competitive arrangements with three international airlines to eliminate differences in international airfares offered to customers, and ordered to pay penalties totalling $11 million (31 July 2015).  More...  More...

ACCC unsuccessful in appeal from judgment dismissing price fixing allegations against ANZ
The Full Court of the Federal Court of Australia has dismissed an appeal by the ACCC against a decision of the Federal Court which dismissed the ACCC's price fixing allegations against Australia and New Zealand Banking Group Ltd (ANZ) (31 July 2015).  More...  More...

Fish and chip shops still not forced to tell consumers if their fish are local or imported
An independent's Bill in Federal Parliament to enforce the country of origin labelling on fish sold at restaurants was not supported by the Federal Government. The Australian Seafood Alliance is campaigning for transparency, and chair Grahame Turk said restaurants should be brought into line with retail shops (30 July 2015).  More...

Cash Converters facing Federal Court class action over alleged Qld law breach
A major class action against Cash Converters alleges the company breached Queensland consumer law by making borrowers pay hefty brokerage fees (30 July 2015).   More...

Alleged cartel conduct in the Canberra construction industry
The Australian Competition and Consumer Commission is aware of serious allegations and evidence presented to the Royal Commission into Trade Union Governance and Corruption concerning alleged cartel conduct in the construction industry in Canberra, particularly concreting and scaffolding (30 July 2015).   More...

Property spruikers put on notice by regulators
NSW Fair Trading Commissioner Rod Stowe is warning promoters of property investment schemes to operate legally or face sanctions. Mr Stowe said a common theme was consumers being misled about the financial benefits of buying into a particular scheme (30 July 2015).  More...

Financial planner warns new rules will not stop life insurance churn
Fresh analysis shows the new 'Life Insurance Framework' does not remove the incentive for financial planners to switch clients' life insurance to boost their commissions (29 July 2015).  More...

Franchisees sue Pizza Hut parent company over cut-price pizzas
A large majority of Pizza Hut franchisees have started a class action against Pizza Hut parent company YUM! Restaurants Australia Pty Ltd, claiming damages for heavy losses and failed businesses due to an unsuccessful price war with Domino's. The franchisees allege that the parent company breached its duties by denying the franchisees the opportunity to earn a profit (28 July 2015). Diab Pty Ltd ACN 003 168 812 v YUM! Restaurants Australia Pty Ltd ACN 000 674 993 (NSD699/2015).  More...

Omniwealth pays penalty for potentially misleading advertising
Omniwealth Services Pty Ltd has complied with an ASIC infringement notice, paying a $10,200 penalty after including potentially misleading claims on its website. Omniwealth's website included a page on the advantages of investing in property within a self-managed super fund (SMSF) (21 July 2015).   More...

In practice and courts, published reports

ACCC statements on Flight Centre and ANZ appeals
The ACCC has issued media releases in relation to its losses in two Federal Court appeal cases today in relation to both the ACCC has indicated it will 'carefully consider' the judgments (31 July 2015). More...  More...

Cases

ACCC v ANZ Ltd[2013] FCA 1206 (18 November 2013)
The the ACCC filed an appeal on 10 December 2013. Hearing concluded. Judgement delivered on 31 July 2015 - appeal dismissed. The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then Trade Practices Act 1974 (now Competition and Consumer Act 2010), because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release). The Federal Court dismissed this claim, finding that ANZ and Mortgage Refunds were not competitors and, as a result, the conduct did not constitute price fixing.

ACCC v Flight Centre Ltd

ACCC v Flight Centre Limited (No 2)[2013] FCA 1313 (6 December 2013) (Principal judgment)

ACCC v Flight Centre Limited (No 3)[2014] FCA 292 (28 March 2014) (Penalty judgment)

Flight Centre Limited v Australian Competition & Consumer Commission [2014] FCA 658 (application to stay penalty)
Flight Centre filed a notice of appeal on 17 April 2014 and the ACCC cross-appealed in relation to penalty on 8 May 2014.On 31 July 2015 the Full Federal Court delivered judgment; Flight Centre was successful in its appeal and the ACCC ordered to pay costs. The decision was unanimous. The Full Court allowed Flight Centre's appeal, finding that there was no separate market for booking and distribution services to consumers, and as a consequence that Flight Centre and the airlines did not compete with each other in such a market. Note: as the relevant conduct pre-dated the changes to the cartel laws, the claims related to the Trade Practices Act ss 45 and the deeming provision, s 45A (relating to price fixing). However, issues relating to market, competitors etc remain relevant to the current provisions.

Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2015] FCA 753
CONSUMER LAW – television advertisement advertising dishwashing products – application for interim injunction restraining broadcast of advertisement – whether advertisement misleading or deceptive or likely to mislead or deceive – whether false or misleading representations conveyed – balance of convenience – injunction granted – Australian Consumer Law, ss 18, 29, 232, 234. Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), ss 18, 29(1)(f), 33, 232, 234.  More...

Adisan Pty Ltd v Irwin [2015] NSWCA 217
CONTRACT – guarantee and indemnity – where guarantee provided that it could be extended to cover "new loan contract" – interpretation – AUSTRALIAN CONSUMER LAW – order under s 87 of the Trade Practices Act 1974 (Cth) – misleading or deceptive conduct including omission to disclose information – whether presentation of deed of variation without disclosure of agreement to cap co-guarantor's liability misleading or deceptive – whether guarantor suffered or likely to suffer loss or damage by the misleading conduct.  More...

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219
CONTRACT – whether the terms of the contract for the provision of the recreational services excluded the respondents' liability – when the contract was made – whether efficacy of purported exclusion clause preserved by s 5N Civil Liability Act AUSTRALIAN CONSUMER LAW – breach of s 60 Australian Consumer Law consumer guarantee – whether appellant a "consumer" – operation of ss 60 and 275 of the Australian Consumer Law and s 139A of the Competition and Consumer Act.  More...

Carsales.Com Limited v One Way Traffic Limited [2015] VSC 367
CONSUMER LAW – Misleading or deceptive conduct – False or misleading representations – Relevant legal principles – Television, radio, internet and billboard advertisements – Alleged representations as to provision of consumer's contact details to car dealerships – Whether representations conveyed – Whether representations likely to mislead or deceive – Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18.  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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Authors
Ian Robertson
 
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