In the media
Telstra to fight ACCC price cuts in the Federal
Court
Telstra has decided to fight in the Federal Court the competition
watchdog's attempt to cut its wholesale prices – a move
that could imperil price cuts and data allowance increases for
millions of phone and internet customers at rival providers. The
appeal with the Federal Court seeking review of the ACCC's
recent fixed-line pricing decision (06 November 2015).
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Australian Chamber welcomes TPP text
release
The ACCI has welcomed the public release of the negotiated text of
the Trans Pacific Partnership (TPP) agreement by involved parties.
It has the potential to reduce costs across global supply chains,
provide for predictable common rules for investment and services
and open previously restricted markets for our goods and services
(06 November 2015).
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Anti-dumping reforms to help Australian
industry
Reforms to Australia's anti-dumping system effective from 2
November 2015 will level the playing field for Australian
manufacturers and producers. Minister for Industry, Innovation and
Science, said the package of reforms will ensure businesses are not
unfairly injured by the importation of goods at dumped prices (05
November 2015).
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Court orders penalty for false and misleading 'Free
SMSF Setup' advertising
The Federal Court of Australia has fined Superannuation Warehouse
Australia (SWA) for misleading "free setup" advertising.
In addition to penalties for misleading advertising, ASIC sought
orders requiring SWA to implement a compliance program and notify
customers (on SWA websites) of the court proceeding (04 November
2015).
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OCM pays $30,600 penalty for misleading
advertising
O.C.M. Online Capital Markets Pty Ltd (OCM) has paid $30,600 in
penalties after ASIC issued three infringement notices for false or
misleading online advertising. Each infringement notice imposed a
penalty of $10,200. The advertisements and e-mails promoted
OCM's margin foreign exchange trading platform (03 November
2015).
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Brokers for WA car loan company Get Approved Finance
engaged in unfair conduct,
More than 15 brokers for a West Australian car loan company
engaged in unfair conduct to get loans worth more than $1.3 million
approved, a corporate watchdog investigation has found. According
to ASIC, names of friends and family members of the borrower were
listed on loan documents as primary lenders, achieved by misleading
them into thinking they were guarantors (27 October 2015).
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Private training college Unique International lured
students with false promises of free iPads
In a landmark case in the Federal Court, the Australian
Competition and Consumer Commission (ACCC) will allege Unique
International College Pty Ltd targeted vulnerable consumers in New
South Wales and misled them about government-funded courses using
the HECS-style VET FEE HELP loan system (27 October 2015).
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Federal Court declares Exclusive Dealing by
Calvary
The Federal Court has declared (by consent) that Calvary (the
Little Company of Mary Health Care Ltd and Calvary Health Care
Riverina Ltd), by adopting by-laws relating to the accreditation of
medical practitioners, had engaged in exclusive dealing conduct
that was likely to have the effect of substantially lessening
competition in the day surgery market in Wagga Wagga. The
proceedings were otherwise dismissed (26 October 2015).
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In practice and courts, published reports
Annual Competition Law and Economics Workshop 2015
speech: ACCC Chairman
ACCC Chairman, Rod Sims, opening address at the 13th annual
Competition Law and Economics Workshop in Adelaide, covering issues
confronting the ACCC when applying Australia's competition law,
the importance of the Harper Review and the reality of increasing
globalisation (23 October 2015).
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Cases
Australian Securities and Investments Commission v
Superannuation Warehouse Australia Pty Ltd [2015] FCA
1167
CORPORATIONS – website advertising "free" set up
of self-managed superannuation funds – admission of
misleading or deceptive conduct and false or misleading
representations in relation to financial services – claim for
pecuniary penalty – s 12GBA of Australian Securities and
Investments Commission Act 2001 (Cth) – factors relevant
to calculation of penalty – assessment of penalty. More...
Australian Competition and Consumer Commission v
Little Company of Mary Health Care Limited [2015] FCA
1144
TRADE PRACTICES – exclusive dealing – respondents
acquiring and offering to acquire services from medical
practitioners who had been granted, and held, access and clinical
privileges to perform procedures at day surgery facilities operated
by the respondents on condition that a provision in the Private
Hospital By-Laws applying to the Calvary Riverina Day Surgery
Facilities gave the respondents the qualified ability to refuse to
grant accreditation to a medical practitioner, or to revoke the
accreditation of an accredited medical practitioner, who owned or
controlled an entity that was in competition with the services
offered by the respondents – conduct having the likely effect
of substantially lessening competition in the market in which day
surgery services in Wagga Wagga, New South Wales were supplied
– respondents admitted their conduct resulted in a
contravention by each of them of the Competition and Consumer
Act 2010 (Cth) s 47. PRACTICE AND PROCEDURE – exercise
of Court's discretion to make a declaration where the parties
file a statement of agreed facts, joint submissions and proposed
consent orders – applicant not seeking a pecuniary penalty.
More...
Australian Competition and Consumer Commission v
Lyoness Australia Pty Limited [2015] FCA 1129
TRADE PRACTICES – pyramid selling – participation
payments by "some or all" of the participants –
recruitment payments – benefits "in relation to the
introduction" of new participants. TRADE PRACTICES –
referral selling – receive a benefit "in return
for" the giving of names. EVIDENCE – judicial notice
– disposable income of consumers. PRACTICE AND PROCEDURE
– leave to amend – series of applications made during
hearing. The relief which is sought by the Commission against one
or other of the four Respondents is founded upon alleged
contraventions of the prohibitions on pyramid selling and referral
selling set forth in ss 44 and 49 of the Australian Consumer Law ,
being Sch 2 to the Competition and Consumer Act 2010 (Cth)
(the "Competition and Consumer Act"). Section 44 is
directed at "pyramid selling schemes"; s 49 is directed
at "referral selling". More...
TMA Australia Pty Ltd v Indect Electronics &
Distribution GmbH [2015] NSWCA 343
CONTRACT – construction – contract for purchase of
software – where software required authenticity check every
three months to continue operating – whether breach of term
that licence to use would be of unlimited duration – whether
breach of warranty that software would be fit for purpose CONTRACT
– implied terms – where individual contracts of supply
in commercial relationship involving purchase, re-sale,
installation and maintenance by distributor – whether implied
term in supply contracts that original supplier would provide parts
and support services to distributor as required for continued
operation of systems for their lifetime, irrespective of whether
distributorship arrangement terminated, and at prices applicable to
ongoing resellers or distributors – whether conduct and
statements of parties supported implication – whether
implication of term necessary for reasonably effective operation of
supply contracts with distributor ESTOPPEL – equitable
estoppel – conventional estoppel – whether assumption
adopted between parties as to ongoing obligation of original
supplier to provide to distributor and reseller parts and support
necessary to ensure effective operation of systems for their
lifetime – whether conduct, including statements between
parties, points plainly to adoption of assumption said to
constitute conventional basis of supply relationship AUSTRALIAN
CONSUMER LAW – unconscionable conduct under Australian
Consumer Law, s 21 – whether supplier acted unconscionably by
withdrawing support and ceasing direct supply to distributor and
reseller.
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