Australia: Competition and Consumer Law - What's News - 13 October 2015

In the media

Expedia and Priceline pricing practices under ACCC scrutiny
The competition regulator will consult with Australian hotel operators to help determine if "price parity" clauses imposed by online travel agents Expedia, Wotif and Booking.com are unfair (09 October 2015).   More...

Expedia defends hotel contracts being scrutinised by ACCC
The Expedia chief financial officer has claimed the online travel agent's requirement for "price parity" in contracts with hotels, which do not allow accommodation providers to offer a lower price on their own website, helps boost overall room sales (07 October 2015).  More...

China demands more disclosure on spare parts, repairs from automakers
China will require automakers to publish technical information on vehicle repair and spare parts from next year, a government statement said on Thursday, a move aimed at curbing anti-trust behaviour by car dealers in the world's largest auto market (08 October 2015).  More...

New Zealand Roofer Warned over Cartel Behaviour
The Commerce Commission has formally warned Consolidated Alloys NZ for cartel-like behaviour after the Australian-owned manufacturer used a settlement over a patent dispute to try and restrict roofing products available in New Zealand (08 October 2015).  More...

Feedback Sought On Free Range Eggs
Commissioner for Fair Trading Rod Stowe today encouraged consumers and businesses to have their say on the labelling of free range eggs. Mr Stowe welcomed the Regulation Impact Statement (RIS) on free range egg labelling published by the Federal Government on behalf of consumer affairs agencies across Australia (05 October 2015).  More...

Vertical integration 'the main issue' in Brookfield bid for Asciano, says ACCC chair
The ACCC says it is on track to reveal whether it has any issues with Brookfield Infrastructure's proposed $8.9 billion takeover of Asciano. The Competition watchdog has received "quite a lot of submissions" by users who have expressed issues with vertical integration and Brookfield abusing its market power (06 October 2015).  More...  More...

Historic Asia-Pacific Trade Agreement opens new era of opportunities
The TPP writes regional trade rules which will drive Australia's integration in the region and underpin our prosperity.  As a regional trade agreement, the TPP creates benefits for consumers and businesses beyond those that can be achieved under bilateral FTAs (06 October 2015).  More...

In practice and courts, published reports

Law Council of Australia: Federal Court Case Management Handbook
The Federal Court Case Management Handbook now includes a competition law chapter (06 October 2015).  More...

ACCC Free range guide 2015
The guide explains the ACCC's approach to enforcing misleading conduct provisions of the ACL, in the context of free range egg claims, while the Commonwealth Treasury is consulting on whether Australia should adopt a national standard on free range egg labelling. The ACCC notes the law reform consultation process underway in relation to free range eggs and encourages consumers and business to contribute to this process (05 October 2015).  More...  More...

Regulation Impact Statement (RIS) on free range egg labelling
After four weeks of national consultation, a further RIS will outline final options and a cost-benefit analysis, which ministers will consider at the next Consumer Affairs Forum in Canberra in February. Feedback closes 2 November (05 October 2015).  More... More...

Franchisor's duty of exclusivity? 25 September 2015
Exclusivity is a key issue in franchise agreements. But how far is the franchisor required to go to protect the exclusivity which it promises to the franchisee? The question has now been considered by the Federal Court in Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd [2015] FCAFC 127.  More...

Asia-Pacific Trade Agreement (TTP)
TPP will not require any changes to Australia's intellectual property laws or policies, whether in copyright, pharmaceutical patents or enforcement. The TPP will not increase the price of medicines in Australia. The TPP countries are: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, Peru, New Zealand, Singapore, the United States and Vietnam.  More...

ACCC: comment on Coles' proposed acquisition of nine Supabarn supermarkets
The ACCC n has released a Statement of Issues outlining its preliminary views on Coles' proposed acquisition of nine Supabarn supermarkets in NSW and the ACT. The ACCC is concerned that Supabarn's removal may lead to significant competitive harm and loss of choice for consumers." The ACCC invites further submissions from interested parties in response to the Statement of Issues by 1 October 2015. The ACCC expects to make a final decision on the proposed acquisition by 26 November 2015.   More...  More...

Cases

Casenote: Judicial Enforcement of Arbitration Clauses in a Consumer Law Context
Author(s): Alex Baykitch (2015) 2(4) ADRB 80. This is an article which examines the emerging trend in the Federal Court of Australia of a pro-arbitration approach to disputes that can be classified as consumer claims.

Casenote: Unconscionable Conduct in the Context of Providing Medical Treatment - Case Note: Australian Competition and Consumer Commission v ACN 117 372 915 Pty
Ryan Tozer and Deborah Templeman (2015) 23(8) HLB 156. Consumer protection - Misleading and deceptive conduct - Medical institute's conduct - Unproven pharmaceutical treatments  - The FCA has found a medical institute engaged in unconscionable conduct, in locking men seeking treatment for sexual dysfunction into long-term contracts for unproven pharmaceutical treatments. Injunctive relief was granted and the doctors involved were referred to the relevant medical disciplinary bodies.

Casenote: Court restrains alleged misleading statements that certain companies were insolvent
In GG Australia Pty Ltd v Sever [2015] FCA 1043, the applicants were alleging before a Federal Court duty judge, late on a Friday, prior to starting any proceeding, that the first respondent had made claims that the applicants were insolvent and unable to pay their employees and contractors. The basis for the application was the contention that the respondents had engaged in misleading or deceptive conduct, contrary to the relevant provisions of the Australian Consumer Law, and had also engaged in conduct which amounted to injurious falsehoods, tortious interference in contractual relations and defamation.

Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd [2015] FCA 1086
INTELLECTUAL PROPERTY – trade marks – whether infringement of trade mark – where parallel importation of cigars – where importer repackaged cigars to comply with Australian Plain Packaging laws – whether act of unpacking cigars and repackaging in unofficial packaging bearing the trade mark constituted infringement pursuant to s 120 Trade Marks Act 1995 (Cth) – s 123 engaged – no infringement. INTELLECTUAL PROPERTY – trade marks – standing – whether standing under s 26 Trade Marks Act 1995 (Cth). CONSUMER LAW – misleading or deceptive conduct – whether repackaging of cigars likely to mislead consumers – whether public would assume that cigars repackaged on authority of original manufacturer. TORTS – passing off – whether repackaging of cigars constituted misrepresentation to public. Competition and Consumer Act 2010 (Cth), Sch 2, ss 18 and 29.  More...

Toll Global Forwarding Pty Ltd –v- Thiess Pty Ltd  [2015] WASC 364
Contract - Freight - Sea carriage of goods from Thailand - Claim for additional freight remuneration - Fixed price contract - Schedule of rates for carried cargo - Quantum meruit - Contractual variation - Promissory estoppel -  Misleading  or  deceptive conduct  - Pre­contractual representations - Post­contractual representations - Unconscionable conduct - Trade Practices Act 1974 (Cth).  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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