Australia: Competition and Consumer Law - What's News - 15 September 2015

Last Updated: 30 September 2015
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2017

In the media

Court finds Bet365 engaged in misleading and deceptive conduct
The Federal Court has found that Bet365's Australian and UK companies engaged in misleading and deceptive conduct when offering free bets to new customers. New customers who had not previously used such types of services were drawn into this web of deception. The Federal Court found against both the Australian Bet365 company, Hillside (Australia New Media) and its UK sister company Hillside (Shared Services) (11 September 2015). More...

Michael Anthony Boyle convicted of giving false or misleading evidence
The Federal Court in Brisbane has convicted Mr Michael Anthony Boyle of knowingly giving false or misleading evidence to the ACCC about his knowledge of Peter Foster's involvement in Sensaslim Australia Pty Ltd (in liquidation) (Sensaslim). In 2011, the ACCC issued a compulsory notice under section 155(1)(c) of the CCA requiring Mr Boyle to appear before the Commission to give evidence as part of the ACCC's investigation into misleading and deceptive conduct and false representations relating to the identity of Sensaslim officers, the Sensaslim product (10 September 2015). More...

Anti-competitive Conduct: Visa Worldwide Fined Following ACCC Action
?On 4 September 2015, the ACCC issued a Media Release indicating that international credit card company Visa Worldwide Pte Ltd (Visa) has been fined $18 million by the Federal Court of Australia for engaging in anti-competitive behaviour. The imposition of the said fine brings to an end a case that the ACCC had instituted in 2013 and has been pursuing since that time. More...

Infrastructure reforms can help restore productivity
The proposed Harper competition reforms can boost national prosperity and help turn the tables on many years of past poor infrastructure policies and practices, according to the ACCC Chairman Rod Sims (Partnerships Australia conference) . This includes policies that prevent competition in coastal and liner shipping, limits on supply and competition in urban water, costly past rules for energy network regulation, limits on infrastructure competition in many areas (04 September 2015). More... More...

Visa ordered to pay $18 million penalty for anti-competitive conduct following ACCC action
Visa Worldwide implemented and maintained a moratorium by making changes to the Visa rules which prohibited the further expansion of the supply of DCC services on POS transactions on the Visa network by its rival suppliers of currency conversion services in many parts of the world, including in Australia (04 September 2015). More...

Visa to pay $18m penalty for CCA breaches (but not s 46)
As foreshadowed on Tuesday, Visa has been ordered to pay a pecuniary penalty of $18m for anti-competitive conduct. However, the ACCC points out that, contrary to earlier reports, the matter was not resolved on the basis of admitted contraventions of s 46 of the Act; rather Visa admitted contravention of s 47 (exclusive dealing) and, to facilitate resolution, the ACCC did not press the section 46 claim (04 September 2015). More...

Big business should hang their head in business shame
The peak body representing Australian small businesses has come out swinging against the big end of town. But Peter Strong, executive director of the COSBOA, says he understands the adoption of an effects test, which would strengthen the provisions in competition law against the misuse of market power, has not been completely rejected by cabinet (03 September 2015). More...

Competition watchdog finds pork brands misled on 'free range' claims
The competition watchdog says many Australian consumers who thought they were buying free range pork products from pigs raised outdoors have been misled. The pork industry is the latest to come under the spotlight of the ACCC's crackdown on truth in food labelling (03 September 2015). More...

ACCC accepts undertaking from Danoz Direct Pty Ltd about Abtronic X2
The ACCC has accepted a court enforceable undertaking from Danoz Direct Pty Ltd (Danoz) following concerns that its infomercials promoting the Abtronic X2 Fitness System (Abtronic X2) were misleading, in breach of the Australian Consumer Law (02 September 2015). More...

United Petroleum franchisees battle service station giant
Three former United Petroleum franchisees are launching legal action against the service station giant, claiming they have been unfairly forced out of their businesses (30 August 2015). More...

Full Court hands down decision in hair straightening product case
The Full Court of the Federal Court of Australia has, in part, allowed an appeal by the ACCC against a decision of Justice Rangiah in the Federal Court, which had dismissed certain allegations against Dateline Imports Pty Ltd. he appeal concerned allegations that Dateline Imports had made false or misleading representations when it stated that the hair straightening product, did not contain formaldehyde, and that it was safe for use by consumers (28 August 2015). More...

Reasonable Grounds for Representations: ACCC v Dateline Imports Pty Ltd [2015] FCAFC 114
?The Full Federal Court has handed down a judgment in ACCC, which has partially upheld the ACCC's claims in an appeal from the original Federal Court decision. Cross-appeals by Dateline were also dismissed. The Full Federal Court agreed with the ACCC's contention that Dateline had contravened section 52 of the Trade Practices Act 1974 (Cth) by not having reasonable grounds for making a series of representations. More...


Reasonable Grounds for Representations: ACCC v Dateline Imports Pty Ltd [2015] FCAFC 114
?The Full Federal Court (01 September 2015) has partially upheld the ACCC's claims in an appeal from the original Federal Court decision. Cross-appeals by Dateline were also dismissed. The Full Federal Court agreed with the ACCC's contention that Dateline had contravened section 52 of the Trade Practices Act 1974 (Cth) by not having reasonable grounds for making a series of representations, including that their Keratin Complex formula did not contain formaldehyde and that it complied with worldwide health and safety regulations. The Court dismissed several other grounds of appeal. More...

Archer Capital 4A Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc [2015] FCA 960
CONSUMER LAW – where "Final Offer" letter sent by bidder – whether Final Offer letter and statements conveyed representations – whether bidder did not have reasonable grounds for representations with respect to future matters – whether representations misleading or deceptive – claimed contraventions of s 18 of sch 2 of the Competition and Consumer Act 2010 (Cth), s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) and s 1041H of the Corporations Act 2001 (Cth). ESTOPPEL – promissory estoppel – whether representations made by bidder – whether shareholders induced by representations and assumed legal relationship created if offer accepted – whether shareholders relied on the representations and acted to their detriment – whether bidder estopped from departing from effect of the representations and legal relationship. More...

Ferme & Ors v Kimberley Discovery Cruises Pty Ltd [2015] FCCA 2384
CONSUMER LAW – Where term in contract provided for forfeiture of amount paid upon cancellation by respondent – where respondent cancelled contracted cruise because of inclement weather – where respondent forfeited amounts paid by applicants – whether forfeiture term unfair for the purposes of s.23(1) of the Australian Consumer Law – whether standard form contract for the purposes of s.23(1) of the Australian Consumer Law – where standard form contract – where forfeiture term unfair – forfeiture term void – whether applicants entitled to recover amounts paid for a consideration that has wholly failed. Australian Consumer Law, Part2-3, ss.23, 23(1), 23(1)(b), 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(e), 24(2), 24(2)(b), 24(3), 24(4), 25, 25(1), 25(1)(a), 25(1)(k), 27, 27(1), 27(2), 236. More...

Cummins Generator Technologies Germany GmbH v Johnson Controls Australia Pty Limited [2015] NSWCA 264
TRADE PRACTICES – misleading and deceptive conduct under Trade Practices Act 1974 (Cth) – whether misrepresentations made in quotation for supply of an alternator as to compatibility with existing equipment – where quotation not accepted – technical information provided in respect of machinery subject of quotation – misrepresentations to be assessed in context of dealings between parties TRADE PRACTICES – misleading and deceptive conduct underTrade Practices Act 1974 (Cth) – causation – whether legal causation established – dependent on purpose of statute as related to the circumstances of the particular case DAMAGE – misleading and deceptive conduct – no strict requirement to prove a "no transaction" or "different transaction" case EVIDENCE – expert evidence – UCPR, r 31.28 – party seeking to rely on another party's expert report – report must be "served back" – exceptional circumstances required for the grant of leave if party has not "served back" – UCPR, r 31.28(4)(a). 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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Ian Robertson
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