Australia: Competition and Consumer Law - What's News - 11 November 2015

Last Updated: 15 November 2015
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2017

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). More...

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). More...

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). More...

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). More...

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). More...

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). More...

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). More...

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). More...

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). More... More...


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. 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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