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).
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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).
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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).
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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).
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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).
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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).
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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...
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