Australia: Competition and Consumer Law - What's News - 15 February 2016

In the media

Woolworths under fire from suppliers as ACCC court action proceeds
Getting a product onto the shelves of Woolworths and Coles is not a simple transaction where there is a wholesale price, a margin added, and then a retail price. The new Food and Grocery Code of Conduct gives big clues as to the types of behaviours manufacturers have been subjected to (12 February 2016).  More...

Win for Australian tomato growers and producers
In a major win for local producers, the Australian Government will impose duties on certain prepared or preserved Italian tomatoes. Minister for Industry, Innovation and Science said this ruling will ensure that Australia's only canned tomato producer, SPC Ardmona, can now compete equally in Australian stores and supermarkets (11 February 2016).  More...

Federal Court Finds Australian Egg Corporation and egg producers did not attempt to induce a cartel arrangement
The Federal Court of Australia has found that Australian Egg Corporation Limited (AECL), Farm Pride Foods Ltd and Ironside Management Services Pty Ltd did not attempt to induce a cartel arrangement. The Court also found that the managing director of AECL, and director of AECL and Twelve Oaks Poultry, did not attempt to induce egg producers to engage in cartel conduct (10 February 2016).  More...

Chief of Australian online firm Uglii resigns amid allegations of corporate misconduct
The chief executive of Australian Internet firm Uglii has resigned as the corporate watchdog ramps up its investigation into allegations the firm engaged in serious corporate misconduct. HSBC sent Mr Knorr a formal legal letter warning him that his claims of striking a partnership with HSBC were false and misleading (09 February 2016).  More...

Contract law change leaves franchisees vulnerable
Recent amendments to laws extending individual protections against unfair contracts to cover small business activity may miss the mark in protecting potentially vulnerable franchisees. The initial purpose of the consumer-only protections was to ensure that those in an inferior bargaining position did not sign standard form contracts full of unfair terms (07 February 2016).  More...

Woolworths misled consumers over product safety hazards
The Federal Court has today ordered Woolworths Limited (Woolworths) to pay total penalties of $3.057 million for breaches of the Australian Consumer Law relating to safety issues with house brand products sold in Woolworths supermarkets, Big W and Masters stores ( 05 February 2016).  More...

Woolworths threatens Mitre 10 with ACCC action
Woolworths has written to Mitre 10 reminding it of its competition law obligations after Mitre 10 invited several Home Timber & Hardware franchisees to its annual summit (05 February 2016).   More...

Froothie Australia: ACCC Acts Over Misleading Conduct
‎Athena Solutions Pty Ltd trading as Froothie Australia (Froothie), the supplier of Optimum branded kitchen appliances, has paid a penalty of $10,800 following the issue of an infringement notice by the ACCC (05 February 2016).  More...

Woolworth unconscionable conduct case under way
The ACCC's case against Woolworths' alleging unconscionable conduct is now underway in the Federal Court in Sydney (31 January 2016).  More...

In practice and courts, published reports

Draft ministerial rules
The Australian Small Business and Family Enterprise Ombudsman Act 2015 (the Act) will come into operation on 11 March 2016. Under the Act, the Minister for Small Business may make rules to ensure the efficient operation of the Ombudsman's office.  Closing date for submissions:  Wednesday, 24 February 2016.  More...

Submissions: Interactive Gambling Amendment (Sports Betting Reform) Bill 2015
On 26 November 2015 the Senate referred the Interactive Gambling Amendment (Sports Betting Reform) Bill 2015 for inquiry and report. The closing date for submissions is 12 February 2016. The reporting date is 12 May 2016.   More...

Options to strengthen the misuse of market power law: Discussion Paper
The purpose of this discussion paper is to seek the views of interested parties on options to strengthen the misuse of market power provision (section 46) of the Competition and Consumer Act 2010 (CCA). Submissions on this discussion paper close on 12 February 2016.  More...

ASIC guidance on new protections for small businesses against unfair contract terms
The information sheet provides guidance about the new provisions, including how the law defines a standard form contract and ASIC's expectations that prior to 12 November 2016, businesses will review their standard form contracts. Information sheet Unfair contract term protections for small businesses (INFO 211) (02 February 2016).  More...

Cases

Bride v The Shire of Katanning  [2016] FCA 65
CONSUMER LAW – whether asserted conduct of local government authority was conduct 'in trade or commerce' – conduct of local government authority in the pursuit of rates – conduct of local government authority in the course of litigation.  CONSUMER LAW – jurisdiction of Federal Court of Australia under the Australian Consumer Law – whether jurisdiction of Australian Consumer Law extends to partnership – whether firm of solicitors acting in trade and commerce – whether jurisdiction of Federal Court of Australia to consider tort of conspiracy attracted by assertion of non-colourable federal claims – whether federal nexus in assertion of misleading and deceptive conduct or unconscionable conduct – whether extended operation of Competition and Consumer Act 2010 (Cth).  More...

Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 69
COMPETITION – allegation of attempt to induce cartel conduct in contravention of the Competition and Consumer Act 2010 (Cth) – whether respondents intended to bring about arrangement or understanding to limit the production or supply of eggs for sale – whether crown immunity applies in the case of the Australian Egg Corporation Ltd – conduct engaged in on behalf of body corporate – whether directors of corporate respondents acting within scope of actual or apparent authority – circumstantial case – attempt to induce cartel conduct not proved.  Competition and Consumer Act 2010 (Cth) ss 2A, 2AP, 4, 44ZZRJ, 44ZZRD, 76, 80, 84; Corporations Act 2001 (Cth)More...

Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62
CONSUMER LAW – contraventions of ss 18, 21, 29 and 31 of the Australian Consumer Law admitted – undertakings, declaratory relief, injunctions, disqualification order, non-party redress orders and pecuniary penalties sought in large part without contest.  CONSUMER LAW – non-party redress orders – refunds to clients who suffered loss or damage – whether second respondent had effective control over funds held in discretionary trust such that they should be made available to effect refunds.  More...

Australian Competition and Consumer Commission v Woolworths Limited [2016] FCA 44
CONSUMER LAW – pecuniary penalties – relevant matters – assessment of comparative cases – effect of incommensurability – relevance of previous acknowledgment of likely similar contravention – relevance of payment of compensation by contravening party – whether payment of compensation is only relevant to whether the contravening party is contrite.  CONSUMER LAW – pecuniary penalties – s 224(4)(b) Australian Consumer Law – meaning of the "same conduct" – effect of the course of conduct principle.  More...

Clarkson Williams Partners Pty Ltd v Vaughan [2016] ACTCA 1
The appeal is allowed and the judgment given on 26 February 2015 is set aside.  TRADE AND COMMERCE – TRADE AND COMMERCE GENERALLY – Statutes relating to misleading or deceptive conduct in trade – silence – where business sold at overvalue – whether reasonable and definite inference of actual knowledge of overvalue – no evidence establishing value of goodwill – competing inferences available – appeal allowed.  TRADE AND COMMERCE – TRADE AND COMMERCE GENERALLY – Statutes relating to misleading and deceptive conduct in trade – conduct by silence – no finding as to whether non-disclosure was inadvertent or deliberate – whether non-disclosure can be inadvertent – inadvertent failure to disclose capable of misleading and deceiving – no finding necessary. Fair Trading Act 1992 (ACT) ss 5 and 12; Trade Practices Act 1974 (Cth).   More...

Legislation

Commonwealth

Competition and Consumer Amendment (Payment Surcharges) Bill 2015
Amends the Competition and Consumer Act 2010 to establish a framework to ban surcharges imposed in respect of particular payment methods that exceed the cost of acceptance for those payment methods; and provide the Australian Competition and Consumer Commission with additional powers to gather information and issue infringement notices in enforcing the ban on excess surcharges.  House of Representatives Introduced and read a first time 03/12/15; Third reading agreed to 04/02/16; Senate Introduced and read a first time 04/02/16; Second reading moved 04/02/16.  More...

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Authors
Ian Robertson
 
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