Australia: Competition and Consumer Law - What's News - 8 December 2015

In the media

Legislation introduced to end excessive card surcharging
The Turnbull Government today introduced tough new laws in the Parliament to deliver on our commitment to protect consumers through banning excessive card surcharging. The Competition and Consumer Amendment (Payment Surcharges) Bill 2015 will ban excessive payment surcharges and is an important step in implementing the Government's response to the Financial System Inquiry. More...

Macquarie Bank under fire after 'get rich quick' pitch
Macquarie Bank is under fire for engaging self-proclaimed "Dream Maker" Peter Spann to sell complex financial products to unsophisticated investors, some of whom were left thousands of dollars in debt (03 December 2015). More...

Compensation process for Macquarie Bank clients who lost life savings a 'catch-22': critics
Macquarie Bank compensates just 6 per cent of clients after reviewing those caught up in its financial planning scandal — a process critics are labelling "farcical" and a "catch-22". Lawyers said large numbers of unsophisticated investors were placed in completely inappropriate investments by Macquarie (23 November 2015). More...

ACCC authorises system to facilitate credit reporting
The ACCC has granted authorisation for five years to the Australian Retail Credit Association Ltd (ARCA) in relation to principles for exchanging comprehensive consumer credit data between signatory credit reporting bodies and lenders. The ACCC states this will lead to increased competition between credit reporting bodies and between lenders (03 December 2015). More...

ACCC questions former Meriton staff over TripAdvisor rorting claims
Australia's largest apartment developer is under scrutiny from ACCC investigators over allegations staff are manipulating its TripAdvisor rankings. In a statement the ACCC said the manipulation of review results and the offering of incentives in exchange for reviews could amount to "misleading or deceptive conduct" and attract penalties of up to $1.1 million (02 December 2015). More...

ACCC concerned over Trans-Pacific Partnership IP provisions
The Australian Competition and Consumer Commission (ACCC) has called for a "comprehensive and robust" analysis of intellectual property provisions in the Trans-Pacific Partnership before Australia enacts the trade agreement (30 December 2015). More...

Federal court finds Yazaki corporation engaged in collusive conduct
The Federal Court has found that Yazaki Corporation engaged in collusive conduct with its competitor when supplying wire harnesses to Toyota in Australia. The conduct took place in 2003 and 2008 and breached the exclusionary conduct provisions of the CCA and the Competition Code of Victoria (26 November 2015). More...

Industry fund CEO details 'shameful' conduct
Some of Australia's major financial institutions have fallen well short of acceptable behaviour in a fashion similar to Volkswagen, according to AustralianSuper chief executive (25 November 2015). More...

ASIC updates guidance for fee and cost disclosure requirements for superannuation and managed investment products
ASIC Commissioner Greg Tanzer said accurate and consistent fees and costs disclosure is extremely important for consumers when making decisions about their superannuation and managed investments. The work ASIC has completed in this area will help improve the quality of disclosure to consumers (24 November 2015). More...

ACCC launches proceedings against second private training college
The consumer watchdog targets a second private training college, alleging it signed up vulnerable people — some with intellectual disabilities — and citing problems with the Government's VET FEE-HELP system (24 November 2015). More...

In practice and courts, published reports

ACCC TPP submission to the Productivity Commission's IP inquiry
The ACCC expresses concern (amongst other things) that 'the agreement appears to impose IP restrictions beyond existing international treaties, and this may tilt the balance in favour of IP rights holders to the detriment of competition and consumers. It reiterates its previously expressed view that 'certain IP-related activities under section 51(3)' should be repealed (02 December 2015). More...

Cases

Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304
COMPETITION – allegation of contraventions of the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria – where the first respondent was incorporated in Japan – where the second respondent was incorporated in Australia – where the second respondent was the wholly owned subsidiary of the first respondent – whether the first respondent was carrying on business in Australia – whether the first respondent was otherwise connected with the jurisdiction of Victoria – whether there was a market in Australia for the goods supplied by the respondents – whether the real place of competitive activity was in Australia or Japan – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4E, 5. COMPETITION – allegation of an overarching cartel agreement between the first respondent and another corporation in Japan – allegation that the first respondent and the other corporation entered into two separate agreements in relation to the supply of goods – whether the overarching cartel agreement and two agreements contained exclusionary provisions – whether the overarching cartel agreement and two agreements contained provisions controlling price – whether the first respondent gave effect to the overarching cartel agreement by making the two agreements – whether the first respondent gave effect to the two agreements by discussing, agreeing and submitting prices – whether the first respondent gave effect to the two agreements by directing the second respondent to submit the agreed prices in Australia – whether the submission of prices by the second respondent was an act of giving effect by the first respondent – where the first respondent admitted discussing, agreeing and submitting prices – whether the second respondent's continued supply of goods was an act of continuing to give effect by the first respondent – whether the first respondent continued to give effect to the two agreements by not disclosing the existence of the agreements and not competing – whether acts of omission can give effect to an agreement – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4D, 44ZZRK, 45(2), 45A. COMPETITION – allegation that the second respondent and another corporation in Australia entered an agreement in relation to the supply of goods – whether the agreement contained exclusionary provisions – whether the agreement contained provisions controlling price – whether the second respondent gave effect to the agreement by discussing and agreeing prices – whether the second respondent gave effect to the two agreements made by the first respondent by submitting prices – whether the second respondent continued to give effect to the two agreements by not disclosing the existence of the agreements and not competing – whether a third party can give effect to a prohibited agreement – whether the third party is required to have knowledge of the agreement – Competition and Consumer Act 2010 (Cth), Competition Code of Victoria ss 4D, 44ZZRK, 45(2), 45A. PRACTICE AND PROCEDURE – objections to evidence – whether evidence should be excluded under the general discretion to exclude evidence – whether evidence was admissible as an opinion of conduct and discussions observed by the witness – Evidence Act 1995 (Cth) ss 78, 135. Held: First respondent contravened the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria by giving effect to the overarching cartel agreement, and making, and giving effect to, the two separate agreements. Second respondent contravened the Competition and Consumer Act 2010 (Cth) and the Competition Code of Victoria by making and giving effect to the agreement in Australia. More...

Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294
CONSUMER LAW – the Shire published minutes of a Council meeting on its website which referred to shortcomings in the provision of services by the local pharmacy – whether the conduct of the Shire is conduct "in trade or commerce" – whether the minutes made the representations about the shortcomings of the pharmacy alleged by the applicant. TORTS – misfeasance in public office – where a Shire officer passes on misleading information to regulatory authorities – whether in passing on information the Shire officer was exercising a power or authority such as to attract potential liability for the tort. Trade Practices Act 1975 (Cth) ss 6(3), 52. More...

Australian Competition and Consumer Commission v Davies (No 2) [2015] FCA 1290
CRIMINAL LAW – sentencing – breach of s 155 of the Trade Practices Act 1974 (Cth) – refusing or failing to comply with a notice – aiding, abetting, counselling or procuring the commission of an offence – plea of not guilty – considerations relevant to penalty. Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth); Penalties and Sentences Act 1992 (Qld); Trade Practices Act 1974 (Cth). More...

Winnebago Industries Inc v Knott Investments Pty Ltd (No 4) [2015] FCA 1327
TRADE MARKS – passing off – inquiry into damages – discussion of the 'user principle' in assessing damages for tortious interference with property – application of the user principle to damages for passing off – assessment of damages by reference to a reasonable royalty or licence fee v- Competition and Consumer Act 2010 (Cth) Sch 2. At an earlier hearing: Foster J found (at [92]-[93]):Bruce Binns's earnest denials to the effect that he was not endeavouring to trade off the goodwill and reputation of Winnebago credible. His decision was motivated by a keen appreciation that he and his associates would gain financial benefit from using the Winnebago marks in Australia. More...

IDP Education Ltd v Lejburg Pty Ltd [2015] VSC 650
CONSUMER LAW – Misleading or deceptive conduct – False or misleading representations – Advertisement and promotional material on website – Whether representations made – Whether representations likely to mislead or deceive – Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18, 29(1) – Australian Consumer Law and Fair Trading Act 2012 (Vic) s 12. More...

Legislation

Commonwealth

Competition and Consumer Amendment (Payment Surcharges) Bill 2015
A Bill for an Act to amend the Competition and Consumer Act 2010.The objects of this Bill are to ensure that payment surcharges are not excessive; and reflect the cost of using the payment methods for which they are charged (03 December 2015). More...

Therapeutic Goods Information (Outcomes of Advertising Complaints Investigations) Specification 2015
This Specification commences on the 27 December 2015. Defines the advertiser, in relation to an advertisement, has the same meaning as "person apparently responsible" as in regulation 42ZCAA of the Regulations; and in relation to the information included on the complaint register in an advertisement that is the subject of the complaint and the recommendation to the Secretary (the advertisement). More...

Interactive Gambling Amendment (Sports Betting Reform) Bill 2015
The purpose of this Bill is to amend the Interactive Gambling Act 2001 ('the Act') in relation to online sports betting. This Bill implements harm minimisation measures to help individuals who are engaged in online sports betting better control their gambling. The Bill also establishes an Interactive Gambling Regulator who will monitor and enforce restricted wagering services' compliance with the Act. (Introduced Senate 25 November 2015). More...

ASIC Corporations (Real Estate Companies) Instrument 2015/1049
This instrument remakes and consolidates Class Orders which are sunsetting. It provides relief from the licensing requirements of the Corporations Act 2001 for real estate agents who offer for sale shares in real estate companies and valuers who value shares in real estate companies. It also provides conditional relief for vendors and real estate agents offering for sale shares in a real estate company from the fundraising disclosure obligations of the Corporations Act 2001 (23 November 2015). 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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