Australia: Competition and Consumer Law - What's News - 26 October 2015

In the media

Poker machines 'could breach consumer law'
Lawyers say poker machines could be considered misleading and deceptive under consumer law.  A potentially landmark case to have poker machines declared in breach of Australian consumer law is being considered by a leading Melbourne law firm (22 October 2015).  More...

ACCC working to ensure a successful Food and Grocery Code
Chairman Rod Sims said he is confident the Code can succeed in achieving its objectives. It can redress the imbalance in bargaining power that often exists between suppliers and larger grocery retailers by prohibiting certain types of unfair conduct, and by requiring retailers to deal with suppliers in good faith at all times (21 October 2015).  More... More...  More...

ACCC report on the private health insurance industry
The ACCC has released a report on the private health insurance industry, highlighting concerns about the impact of complex information on consumers and the market. Current practices by some insurers are at risk of breaching the consumer laws (20 October 2015).  More...

Government's Financial System Inquiry Report Response
The Government has released its response to the Murray Financial System Inquiry Report. The Government Response has accepted all but 1 of the Murray Financial system Inquiry's 31 recommendations. The Government agrees to provide ASIC with a financial product intervention power to enable it to modify, or if necessary, ban harmful financial products where there is a risk of significant consumer detriment. The response sets out an agenda for action in the next year.

Banks warned against gouging customers to cover cost of industry changes
Consumer advocates say banks do not need to gouge customers to cover costs raised by the Government's proposed changes to banking and superannuation system (20 October 2015).  More...

Court imposes penalty for false or misleading claims by Homeopathy Plus and Ms Frances Sheffield
The Federal Court ordered Homeopathy Plus! Pty Ltd to pay penalties of $115,000 and its director, Ms Frances Sheffield, to pay $23,000 in penalties for making false or misleading representations about the effectiveness of the whooping cough vaccine and homeopathic remedies as an alternative to the whooping cough vaccine, in breach of the Australian Consumer Law (14 October 2015).   More...

Mortgage broking firm responds to ASIC's concerns about misleading advertising in Chinese language
Elite Mortgage Brokers, a Melbourne-based Chinese mortgage broking firm, has recently agreed to make changes to its website and print advertisements in response to concerns raised by ASIC. The regulator was concerned that statements claiming a '100% success rate' were likely to be misleading because they suggest that credit will be provided to all applicants (13 October 2015).  More...

'Effects test' to protect farmers
Amending section 46 of the Competition and Consumer Act to include an "effects test" will help curtail "reprehensible" anti-competitive behaviour by big businesses that hurts farmers, says Queensland LNP Senator Matt Canavan (12 October 2015).  More...

Stronger compliance, better community access under liquor gaming reform
The State's liquor regulator will be boosted with extra compliance officers and the community given access to a new merit-based appeal of licensing decisions, to support stronger liquor laws in NSW. A new regulator, Liquor and Gaming NSW, will replace the Office of Liquor Gaming and Racing (10 October 2015).   More...

In practice and courts, published reports

New Small Business Protections From Unfair Contract Terms
Minister for Small Business and Assistant Treasurer, has announced the extension of consumer unfair contract term protections to small businesses. Important changes will cover standard form contracts where at least one of the parties employs less than 20 people, and where the upfront price of the contract does not exceed $300,000 or $1 million for contracts longer than 12 months.  The Small Business and Unfair Contract Terms Bill will extend unfair contract term protections to small businesses through amendments to the Australian Consumer Law and Australian Securities and Investments Commission Act 2001 (13 October 2015).  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.   More...  More...

Cases

ACCC Accepts Undertaking from Airbnb and eDreams for Drip Pricing
The Australian Competition and Consumer Commission (the ACCC) has accepted court enforceable undertakings from Airbnb Ireland (Airbnb) and Vacaciones eDreams, SL (eDreams) following concerns that the companies made online price representations to consumers (20 October 2015).  More...

Comité Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110
CONSUMER LAW – Champagne wines and non-Champagne sparkling wines – wine education and events business – use of business name and persona "Champagne Jayne" – internet and social media – reference to and promotion of Champagne wines and sparkling wines – meaning of Champagne – French controlled appellation of origin – alleged contraventions of ss 18 and 29 of the Australian Consumer Law – alleged misleading or deceptive conduct and false representations – whether difference between Champagne wines and sparkling wines made clear – whether sparkling wines represented as Champagne wines – whether representation of affiliation with Champagne sector – identification of relevant class – whether secondary meaning of Champagne – contraventions established in part.  TRADE AND COMMERCE – Australian Grape and Wine Authority Act 2013 (Cth) – bilateral wine-trading agreement between Australia and European Community – protection of Champagne as registered geographical indication – alleged offences under ss 40C and 40E – promotion of sparkling wines – whether sparkling wines advertised for sale or sold – no offence established.  More...

Truong Giang Corporation v Quach[2015] FCA 1097
TRADE MARKS – counterfeit goods – whether a sign on a product was used as a trade mark – whether the sign was used, or intended to be used, to distinguish the product from goods dealt with or provided by others – whether the sign was used to indicate the origin of the product – infringement of a registered trade mark contrary to s 120 of the Trade Marks Act 1995 (Cth) – whether the registered trade mark was used on a product with the consent of the registered owner of the trade mark pursuant to s 123 of the Trade Marks Act 1995 (Cth).  COMPETITION – misleading or deceptive conduct arising from dealings in counterfeit goods – false or misleading representations – whether representations made were false or misleading contrary to ss 18(1) and 29(1) of the Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) – principles applicable to misleading or deceptive conduct, or false or misleading representations, regarding the sale of counterfeit goods.  TORTS – passing off – misrepresentations as to the source of a trader's goods – whether conduct is misleading or deceptive, or likely to mislead or deceive – whether there is a misrepresentation that is likely to lead the public astray as to the source and origin of the goods – principles applicable to the tort of passing off.  TORTS – joint tortfeasor – whether a director of a company can be regarded as a joint tortfeasor in respect of a tort of the company.  DAMAGES – compensatory damages in respect of an infringement of a registered trade mark – the appropriate measure of damage – additional damages pursuant to s 126(2) of the Trade Marks Act 1995 (Cth) – principles applicable to the award of additional damages. More...

DHR International, Inc a company incorporated in Delaware in the United States of America v Challis [2015] NSWSC 1567
PRACTICE AND PROCEDURE – interlocutory injunctions – application to compel defendant to prevent access to internet blog posts, and to restrain defendant from publishing injurious falsehoods – consideration of undesirability of framing injunctions in terms of the elements of the tort   TORTS – injurious falsehood – elements of the tort – relevance of the principle of free speech to interlocutory injunction to restrain injurious falsehoods – held, refusing the application, that insufficient evidence was adduced to establish a serious question to be tried as to the falsity of the statements   TRADE PRACTICES – misleading or deceptive conduct – application for interlocutory injunction – held, refusing the application, that insufficient evidence was adduced to establish a serious question to be tried as to the representations being misleading or deceptive, or as to their being made in trade or commerce.  More...

Legislation

Iron Ore Supply and Demand (Commission of Inquiry) Bill 2015
Establishes a full judicial commission of inquiry into iron ore supply and demand, specifically the increases in production by certain iron ore producing companies, and provides for its functions, powers and operations, and creates offences. The commission is required to submit its report to the Presiding Officers within three months for tabling in both chambers.  Second reading moved 01 Jun 2015; Removed from the Notice Paper in accordance with (SO 42).  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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