Australia: Competition and Consumer Law - What's News - 11 April 2016

In the media

Former truckie John stands by sign in protest
The Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 will, for the first time, set national minimum payments for certain contractor drivers in the road transport industry. This has been labelled as price fixing of the highest order because it allows these big companies to come in with competitive prices in an economy where people are looking for the most cost effective price by small industry players (08 April 2016).  More...

ICA wants to challenge RSRT in the High Court
Private contractor group Independent Contractors Australia aims to pit the Whitlam Government's Prices Justification Act 1973-1974, and the referendum rejecting federal control over pricing that led to it, against the Road Safety Remuneration Act in a High Court challenge (07 April 2016).  More...

Govt wants legislation to delay RSRO start
The transport industry has welcomed the news that the federal government will introduce legislation to delay the start of the Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (RSRO) to January next year (05 April 2016).  More...

ACCC launches market study into cattle and beef industry
The ACCC has announced it will commence a market study into the cattle and beef industry in Australia. This study will 'examine competition, efficiency, transparency and trading issues in the beef and cattle supply chain.' (05 April 2016).  More...

Loyal Coal Pty Ltd admits breaching competition law in relation to Mount Penny coal exploration licence tender process
Loyal has admitted that in early June 2009 Loyal withdrew from the tender process and refrained from pursuing competing bids in respect of Mount Penny and Glendon Brook. Loyal has admitted that by engaging in this conduct it made an understanding containing an exclusionary provision, in breach of the Competition and Consumer Act 2010 (Cth) (05 April 2016).  More...

Malcolm Turnbull rebukes banks after Asic allegations against Westpac
Prime minister addresses Westpac lunch after ASIC accuses banking group of rigging bank bill swap reference rate. ASIC alleged that Westpac engaged in "unconscionable", "misleading" and "deceptive" conduct on 16 occasions between April 2010 and June 2012 (06 March 2016).  More...  More...

Regulators rule at AFR Banking & Wealth Summit
Just when the banking sector thought the intense interest in the activities of its financial markets dealers might slip off the radar, the Australian Securities and Investments Commission moved late on Tuesday to take civil action against Westpac for alleged misleading and deceptive conduct, unconscionable conduct and artificial pricing for the bank bill swap rate (05 April 2016).  More...

Witness disappears in cartel conduct case against Obeids and Sydney businessmen
The hearing of the cartel conduct case, launched by the ACCC last year, kicked off on Monday with allegations the Obeids received "substantial benefits" including $28 million in cash for rigging a NSW government tender for two lucrative coal exploration licences. The ACCC is seeking monetary penalties and costs as well as orders that the men be disqualified from managing companies for a set time (03 April 2016).  More...

ACCC takes action against SoleNet, Sure Telecom and James Harrison for alleged unconscionable conduct and undue harassment
The ACCC has commenced proceedings in the Federal Court against 11 corporations trading as SoleNet and Sure Telecom (the Harrison Companies) and their director James Harrison alleging unconscionable conduct in the supply of telecommunications services and undue harassment, in breach of the Australian Consumer Law (ACL) (04 April 2016).   More...

Insurance contracts under spotlight in consumer law review
Standard-form contracts covered by the Insurance Contracts Act 1984 are included in a review of Australian Consumer Law by Consumer Affairs Australia and New Zealand. The review will examine whether insurance contracts should be treated in the same way as other standard-form contracts (04 April 2016).   More...

ACCC boss Sims slams effects test mistruths from big corporates Feature
The competition watchdog's head is accusing corporate executives of spreading "mistruths" to attack law changes that would limit their use of market power (29 March 2016).  More...

In practice and courts, published reports

CAANZ: Have your say on the Australian Consumer Law
The released Issues Paper is seeking views on whether the law is operating as intended, the effectiveness of its enforcement, and whether it can flexibly respond to new and emerging consumer issues (31 March 2016).  More...  More...

ACCC market study into the cattle and beef industry in Australia: Issues Paper
The issues paper will provide detailed information on the scope of the study and how interested parties can participate. The dates and locations of the consultation forums will be announced on the ACCC's website next month. The ACCC will then release a final report, likely in late November.   More...

Country of Origin Labelling Reforms
On 31 March 2016, Commonwealth, state and territory ministers with responsibility for consumer affairs met and agreed to the Commonwealth's preferred proposal for country of origin labelling reform, supported by a Decision Regulatory Impact Statement (RIS).  More...   More...

The third Emissions Reduction Fund auction
The Clean Energy Regulator has announced the third Emissions Reduction Fund auction will be held on 27 and 28 April 2016. The April 2016 auction will follow the same format as the second auction, in a single-round pay-as-bid auction.   More...  More...

Controversial RSRO changes stopped at the last minute
The Road Safety Remuneration Tribunal was set to introduce mandatory minimum charges for transport contracts. Due to take effect on the April 4 2016, the changes would bring owner-drivers in line with the union award requirements and could see fines of $54,000 if drivers failed to comply (05 April 2016).   More... 

Two reviews of the Road Safety Remuneration System released and consultations to commence
The Department of Employment will be undertaking consultations with key industry participants and key stakeholders during April 2016 to discuss the findings of the reports and options for reform.  More...  More...

Cases

Tyne (Trustee) v UBS AG [2016] FCA 241
APPEAL AND NEW TRIAL – application for leave to appeal – finding that proceeding was an abuse of process – Applicants alleged that in 2007 and 2008, UBS made representations or gave misleading or negligent advice to Mr Tyne, and breached fiduciary duties owed to the trustee of the Argot Trust, concerning Telesto's acquisition and retention of Kazakhstan bank bonds - applicants should be granted leave to appeal.  More...

Fazio Richards Pty Ltd v Ibis Way Pty Ltd [2016] FCA 308
CORPORATIONS – joint venture – fiduciary relationship – breach of fiduciary obligations – power of attorney – joint venture vehicle – issue of shares – cancellation of shares – fiduciary claims dismissed.  INTELLECTUAL PROPERTY – patents – infringement – US proceedings – Markman hearing – Italian proceedings – exploitation of patents – use of joint venture vehicle – inadequacy of settlement – misleading or deceptive conduct involving both US and Italian proceedings.  More...

Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
PRIVATE INTERNATIONAL LAW – Meaning of proper law of a contract – operation of "conflict of laws" clause in s 67(a) of Australian Consumer Law – whether Division 1, Part 3-2 (Chapter 3) of Australian Consumer Law applies to contracts where the real and closest connection is not the law of any part of Australia.  CONSUMER LAW – meaning of "goods" in s 4(1) of the Australian Consumer Law – whether provision of computer software by contract involving a licence for provision of computer software is a supply of goods.  CONSUMER LAW – meaning of "conduct in Australia" in s 131(1) of the Competition and Consumer Act 2010 (Cth) – whether there is a requirement that representations be "directed" at Australians to be conduct in Australia – whether representations made on websites are "directed".  CONSUMER LAW – meaning of "carry on business in Australia" is s 5(1)(g) of the Australian Consumer Law – whether respondent "carries on business in Australia" when it has 2.2 million Australian subscriber accounts, generates large Australian revenues, has valuable personal property in Australia, has business relationships in Australia, and incurs tens of thousands of dollars of monthly expenses in Australia.  CONSUMER LAW – representations in consumer agreements, in chat logs and on website – whether representations contravened s 18(1) or s 29(1)(m) of the Australian Consumer Law – misrepresentations contained within contractual terms – extent to which qualifications in the same or other contractual terms alter the otherwise misleading representation.  More...

Azzi v Phillips [2016] NSWDC 40
CONTRACT – loan agreements – written loan agreements entered into after payments made – whether monies paid are loans or payments for services rendered by the defendant – defendant asserts written contracts are void for lack of consideration – defendant cross-claims for breach of contract, accounts stated, estoppel by representation, quantum meruit and  misleading  and  deceptive conduct  – fact-finding and issues of credit.  Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2), s 4.  More...

Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8
CIVIL LAW – Jurisdiction, practice and procedure – Costs – Costs follow the event – costs where successful party has not succeeded on all issues – discretionary nature of costs order – unsuccessful grounds of appeal raised discreet issues – unsuccessful grounds of appeal constituted dominant part of submissions and argument – no order as to costs. The appellant succeeded in only one of its five grounds of appeal concerning the primary judge's findings of misleading or deceptive conduct. This was, of course, enough to require that the appeal be allowed.  More...

Triple A Events Pty Ltd v Macquarie Commercial and Business Sales Pty Ltd (Civil Claims) [2016] VCAT 486
Misleading  or  deceptive conduct  – representation that first respondent could sell first applicant's business within six weeks – representation as to future matter – non-disclosure of common ownership of first and third respondents and of their manager's bankruptcy – remedy for consequences of conduct – Australian Consumer Law (Victoria) ss 4, 18, 236, 237(1), 243.  More...

Selvaratnam v World Challenge Expeditions Pty Ltd (Civil Claims) [2016] VCAT 511
Secondary school student undertakes travel for personal development and as a component of a service award - student finds that the particular travel does not count towards that award - student also complains that the trip was unsatisfactory in some respects - claim against the travel company for breach of contract and misleading and deceptive conduct - Australian Consumer Law sections 18 and 236 - misleading conduct not established - implied terms of the contract.  More...

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Ian Robertson
 
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