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

In the media

Flight Centre and ACCC battle goes to High Court
The High Court of Australia has granted the ACCC special leave to appeal the decision handed down by the Full Court of the Federal Court last year. Flight Centre's 'Price Beat Guarantee' allegedly breached the Competition and Consumer Act 2010, with consumers not receiving the benefit of competing lower ticket prices offered by the airlines (11 March 2016).  More...

ACCC will not oppose Coles' proposed acquisition of five Supabarn supermarkets
The ACCC will not oppose Coles' proposed acquisition of five Supabarn supermarkets. The original proposal was for Coles to acquire nine Supabarn supermarkets, but Coles restructured their transaction following concerns raised by the ACCC, removing the 'most problematic stores' (10 March 2016).  More...

Chairman says difficult times for the changing gas market
The east coast gas market has experienced a triple-whammy of local and international events and changes, according to the ACCC Chairman. Likely ineffective regulation of gas transmission pipelines is of particular concern because monopoly pricing can lead to inefficient downstream investment decisions and can limit investment in upstream exploration (09 March 2016).  More...

Hangover looms for wine industry as axe hangs over tax rebate
Wine producers say one of the Federal Government's top priorities should be removing access to the rebate for New Zealand producers, feeling that it is a rort that should be cut out because we are wanting to have an equal playing field in all the global markets (09 March 2016).  More...

Vaya responds to ACCC investigation
Telecommunications company Vaya has taken measures to address concerns raised by the ACCC following a spike in consumer complaints. The ACCC formed the view that Vaya's Plan Freeze Fee email was likely to be misleading because it represented that consumers were required to pay extra fees, when in fact, under their contracts rates were fixed (08 March 216).  More...

ASIC commences civil penalty proceedings against ANZ for BBSW conduct
ASIC has today commenced legal proceedings in the Federal Court in Melbourne against the Australia and New Zealand Banking Group Limited (ANZ) for unconscionable conduct and market manipulation in relation to the ANZ's involvement in setting the bank bill swap reference rate (BBSW) (03 March 2016).   More...  More...

Chrisco ordered to pay $200,000 penalty for making a false or misleading lay-by representation
The Federal Court has ordered Chrisco Hampers Australia Ltd (Chrisco) to pay a pecuniary penalty of $200,000 for making a false or misleading representation that customers could not cancel a lay-by agreement after making their final payment. The ACL provides that consumers have a right to cancel a lay-by agreement at any time prior to delivery of the goods, including after paying their final lay-by instalment (03 March 2016).  More...

ACCC Egg appeal
The ACCC today filed a Notice of Appeal from the Federal Court's decision dismissing the ACCC's proceedings against the Australian Egg Corporation Ltd and others, which commenced in May 2014 (02 March 2016).   More...

ACCC's new Agriculture Unit to focus on supply chains
Investigations into supply chains, regional workshops and advocacy will be key parts of the ACCC's increased focus on agriculture, with new Agriculture Commissioner working closely with a dedicated Agriculture Enforcement and Engagement Unit. The ACCC intends to focus enforcement activities on agricultural supply chains to address anti-competitive conduct or unfair trading practices taking place that breach the Act (02 March 2016).  More...

ASIC Acts on Misleading Advertising by ACE Insurance, Tigerair and Priceline
As reported in a recent ASIC Media Release and following concerns raised by the Australian Securities and Investments Commission (ASIC), ACE Insurance Limited (ACE Insurance); and Tiger Airways Australia Pty Limited (Tigerair) have removed misleading promotional statements on their websites (ASIC) (29 March 2016).  More...

In practice and courts, published reports

ACCC: Water charge rules review - draft advice
The ACCC has released its draft advice with proposed amendments to the Commonwealth water charge rules. The ACCC has also released an overview of the draft advice The ACCC has now extended its deadline for stakeholder submissions until Friday, 4 March 2016.  More...

The Harper Review - Proposed Changes to the ACCC's Power Under s 155
Author(s): Thyme Burdon and Carmen Romeo; (2015) 19(10) IHC 171
A key tool used by the ACCC to investigate suspected contraventions of the Competition and Consumer Act 2010 (Cth) is its power to compel individuals and companies to produce information and provide oral evidence.

Cases

ACCC v Chrisco Hampers Australia Ltd [2016] FCA 144: Chrisco Fined for Making False or Misleading Representations
‎In a recent judgment handed down by the Federal Court, Chrisco Hampers Australia Ltd (Chrisco) has been ordered to pay a pecuniary penalty of $200,000 for making a false or misleading representation that customers could not cancel a lay-by agreement after making their final payment, in proceedings brought by the Australian Competition and Consumer Commission (ACCC) (04 March 2016).  More...

Crescent Capital Partners Management Pty Limited v Crescent Funds Management (Aust) Limited [2016] FCA 229
TRADE PRACTICES – misleading and deceptive conduct claims brought under Australian Consumer Law and Australian Securities and Investments Commission Act 2001 (Cth) – companies engaged in financial services industry – whether contravening conduct established – whether business names, domain names and business activities sufficiently similar to be confusing and causative of contravening conduct – whether financial services market susceptible to division on basis of asset classes – whether financial services market susceptible to division on basis of investor characteristics – whether distinction between sophisticated investors and other investors relevant – whether distinction between retail and wholesale investors relevant.  TRADE PRACTICES – claims of accessorial liability for misleading and deceptive conduct of others – whether respondents could be said to have participated with requisite knowledge in contravening conduct.  Australian Securities and Investments Commission Act 2001 (Cth) ss 5(2)(b), 12DA, 12DB, 12GD, 12GF;Competition and Consumer Act 2010 (Cth), Sch 2 ss 2, 18, 29.  More...

Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited (No 2) [2016] FCA 144
CONSUMER LAW – remedies for contraventions of Australian Consumer Law – declarations of contravention to conform to findings – whether injunction should be awarded – appropriate pecuniary penalty – number of contraventions – extent of cooperation – profit from contraventions.  Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) ss 23(1), 24, 24(1), 27, 29(1)(m), 97(1), 224, 224(2), 232, 232(4)(a), 232(4)(c), 250.  Trade Practices Act 1974 (Cth) s 80.  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.  More...

Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCA 215
DAMAGES – breach of contract, fraudulent misrepresentation, misleading  and  deceptive conduct  – general principles – assessment of "loss" or "damage" actually suffered.  Australian Consumer Law (Schedule 2 to the Australian Competition and Consumer Act 2010) (Cth) ss 18, s 236; Trade Practices Act 1974 (Cth) ss 52, 82.  More...

Legislation

Commonwealth

Wine Equalisation Tax New Zealand Producer Rebate Claim Lodgment Determination (No. 34) 2016
This instrument sets out the time when a claim for the wine equalisation tax (WET) producer rebate may be made by eligible New Zealand wine producers (Tabled HR 02 March 2016; Tabled Senate 03 March 2016).  More...

Wine Equalisation Tax New Zealand Producer Rebate Foreign Exchange Conversion Determination (No. 35) 2016
This determination sets out the manner in which a component of the approved selling price of wine expressed in a currency other than Australian currency may be converted to Australian currency for the purposes of calculating the wine equalisation tax (WET) producer rebate by eligible New Zealand wine producers (Tabled HR 01 March 2016; Tabled Senate 01 Mar 2016 ).  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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Ian Robertson
 
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