Australia: Competition and Consumer Law - What's News - 30 March 2016

In the media

Rod Sims criticises Coles boss on effects test claims
Australian Competition and Consumer Commission chairman Rod Sims has taken Coles managing director John Durkan to task over his criticism of the government's tough misuse of market power laws (28 March 2016).   More...

ACCC wins appeal in air cargo case
The Full Court found that price fixing conduct engaged in by PT Garuda Indonesia Ltd (Garuda) and Air New Zealand Ltd (Air NZ) relating to the imposition of agreed surcharges on the carriage of air cargo from ports outside Australia to destinations within Australia took place in a "market in Australia", and consequently breached Australia's price fixing laws (23 March 2016).   More...

Lack of competitive pressure facilitates high profit margins at airports
The ACCC released annual Airport Monitoring Report for 2014-15, finds the monitored airports at Brisbane, Melbourne, Perth, and Sydney continue to enjoy high profit margins in both aeronautical and car parking activities. The ACCC Chairman said savvy motorists are increasingly taking advantage of the discount rates available by booking car parking online. The discounts available may be a form of price discrimination as price conscious consumers will book ahead to receive discounts online (23 March 2016).   More...

See the annual Airport Monitoring Report

PC releases Efficiency and Competition Review issues paper
The Productivity Commission has released an issues paper outlining how it will be approaching its latest efficiency and competition review of the superannuation system. The review was commissioned by Treasurer Scott Morrison earlier this year as part of the government's response to the Financial System Inquiry (17 March 2016).   More.... 

Improving transparency in the superannuation industry
The Bill to improve transparency in the superannuation industry has been introduced into Parliament by Minister for Small Business and Assistant Treasurer the Hon Kelly O'Dwyer today. "Transparency through improved disclosure of information is critical to the efficient operation of Australia's superannuation system (17 March 2016).   More...

Prime Minister, Treasurer and Assistant Treasurer release statement on Competition Policy
The Turnbull Government will legislate to fix competition policy in Australia through implementation of the Harper Review's recommendation to amend Section 46 of the Competition and Consumer Act - the misuse of market power provision. The Government will 'consult on Exposure Draft legislation before introducing it to Parliament later in 2016  (16 March 2016).   More...

Labor's plans for small business dealing with anti-competitive behaviour
Labor has announced its plan to assist small business to sue big companies for competition law breaches. The plan includes additional funding for the Small Business and Family Enterprise Ombudsman and giving judges the power to waive liability for opposition costs in relation to Part IV CCA proceedings ( 15 March 2016).   More...

Labors Michelle Rowland a response to the ongoing issues for small businesses when confronting the anti-competitive behaviour by larger firms (15 March 2016)

ACCC and Flight Centre: Special Leave Granted for ACCC to Appeal Federal Court Decision
‎As reported in a recent ACCC Media Release, the High Court of Australia has granted the ACCC Special Leave to appeal the decision of the Full Court of the Federal Court in relation to allegations that Flight Centre Travel Group Limited (Flight Centre) attempted to induce three international airlines to enter into price fixing arrangements in breach of the Trade Practices Act 1974 (Cth) (15 March 2016).  More...

In practice and courts, published reports

Current Senate Enquiries - Economics Legislation Committee
More...

Superannuation efficiency and competitiveness
Productivity Commission: 16 March 2016
This study assesses whether, and the extent to which, the Australian superannuation system is efficient and competitive and delivers the best outcomes for members and retirees, including whether it optimises risk-adjusted after-fee returns.   More...

Cases

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
Crescent Wealth's business is concerned with the making of investments. It offers Sharia compliant  superannuation, via the Crescent Wealth  Superannuation  Fund, and additional managed investment products to the public.  More...

Flexopack S.A. Plastics Industry v Flexopack Australia Pty Ltd [2016] FCA 235
TRADE MARKS – infringement – thermoplastic polymers – packaging goods – goods falling within the scope of the registration – goods of the same description – services closely related to registered goods – operation of ss 120(1) and (2) of Trade Marks Act 1995 (Cth) – defences to infringement – defence of use of own name – s 122(1)(a) – defence of "right to register" – s 122(1)(fa) – block to hypothetical registration by s 44(1) – counter-response of honest concurrent use – s 44(3)(a) – block to hypothetical registration by s 60 – further block to hypothetical registration by s 62A – proviso under s 120(2) – defences rejected – infringement claims established
TRADE MARKS – removal from the Register for non-use – application under s 92 – application dismissed – removal from the Register for lack of distinctiveness – application under s 88 – ground under s 41 – operation of the then s 41(5) – grounds not established – s 88 application dismissed
TRADE PRACTICES – misleading or deceptive conduct – ss 18 and 29(1)(a), (g) and (h) of Australian Consumer Law – knowing involvement of director – elements of claims established – passing off – reputation – whether director a joint tortfeasor – elements of claims established
Competition and Consumer Act 2010 (Cth) Sch 2, ss 2(1), 18, 29(1)(a), (g), (h).  More...

Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42
TRADE PRACTICES – price fixing – meaning of a market "in Australia" – whether markets for airborne cargo out of Hong Kong, Singapore and Indonesia to ports in Australia were markets "in Australia" within s 4E of the Trade Practices Act 1974 (Cth)

STATUTORY INTERPRETATION – whether inconsistency exists between Trade Practices Act 1974 (Cth) and Air Navigation Act 1920 (Cth).  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.