Australia: Competition and Consumer Law - What's News - 9 May 2016

Last Updated: 13 May 2016
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2016

In the media

ACCC will not oppose AB InBev's acquisition of SABMiller
The ACCC will not oppose the proposed acquisition of SABMiller plc (SABMiller) by Anheuser-Busch InBev (AB InBev). The ACCC has concluded that the proposed acquisition is not likely to substantially lessen competition in the Australian beer market and is unlikely to result in higher beer prices for consumers (05 May 2016)  More...

Wine Equalisation Tax rebate – improving integrity and growing exports
These changes will provide a boost to the approximately 100 distilleries in Australia who will be eligible for the scheme including many new whisky distillery start-ups in Tasmania." (03 May 2016)  More...

Sheepskin footwear seller pays $10,800 penalty for alleged false or misleading 'Australian made' representation
The ACCC issued the infringement notice because it had reasonable grounds to believe that Kingdom had  breached the Australian Consumer Law (ACL) by making a false or misleading representation on its website about the country of origin of its footwear branded 'UGG® Aries Sheepskin Australia' (03 May 2016)  More...

Federal Court orders Zelko Lendich to pay $120,000 penalty for attempt to induce cartel arrangement between egg producers
The Federal Court has ordered Mr Zelko Lendich, who is a former director of the Australian Egg Corporation Limited (AECL) and the former managing director of Farm Pride Foods Ltd (Farm Pride), to pay a pecuniary penalty of $120,000 for an attempt to induce a cartel arrangement between competing egg producers, in contravention of s 44ZZRJ of the Act   (02 May 2016)
More...

$18.6 million penalties ordered against Cement Australia companies for anti-competitive flyash agreements
The ACCC alleged that four exclusive contracts to acquire flyash,* which were entered into by Cement Australia (via subsidiaries including Pozzolanic) with four power stations in South East Queensland, involved a misuse of market power contrary to s 46 of the Act and also had the purpose or effect of substantially lessening competition with the result that they contravened s 45 (29 April 2016)  More...

Reckitt Benckiser ordered to pay $1.7 million in penalties for misleading conduct regarding Nurofen specific pain products
The Court ordered Reckitt Benckiser to pay $1.7 million in penalties for contravening the Australian Consumer Law (ACL) by making representations on its website and packaging. Justice Edelman found that, while consumers potentially suffered financial loss due to the price premium attached to the products, they were still effective in treating the pain that they represented (29 April 2016) More...

Colgate ordered to pay $18 million penalty in laundry detergent cartel proceedings
Following admissions by Colgate, it has now entered into understandings which limited the supply and controlled the price of laundry detergents, for contraventions of the TPA. Proceedings are continuing against Cussons and Woolworths, which the ACCC also alleges gave effect to cartel and other anti-competitive arrangements (28 April 2016)  More...

In practice and courts, published reports

Budget 3 May 2016
The Budget and related speech is available on the government's budget site.

Budget speech

Budget papers

Treasury Portfolio budget statement: ACCC (PDF)

The budget papers include reference to the Harper Review; under Jobs and Growth the Government notes it is 'advancing the recommendations of the Harper Competition Policy Review notes that the government is 'strengthening Australian's competition law to prevent big businesses from misusing their market power or seeking to dominate markets.' (See full PDF segment)

Productivity Commission: Draft IP Report
The Draft Productivity Commission Report on Intellectual Property Arrangements, released today, is consistent with the recommendations made by the Harper Panel in relation to IP. It considers current competition law exemptions relating to licensing or assignment of IP property and exemptions from the National Access Regime. In relation to the former it recommends repeal of the s 51(3) exemption and that the ACCC issue guidance on the application of the competition law provisions of the CCA to intellectual property (draft rec 14.1). In relation to access, the PC does not reach a concluded view, but requests further information (p 399).  Submissions on the draft report can be made until 3 June. A final report is expected in August. View Public Inquiry home page.

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. See further details on the Australian Consumer Law website. Submissions close 27 May 2016 Have your say on the Australian Consumer Law

Cases

ACCC v Cement Australia
[2013] FCA 909 (10 September 2013)

[2014] FCA 148 (28 February 2014) ((some) formal orders)

Penalty decision (29 April 2016)

On 29 April 2016 the Federal Court ordered penalties totalling $18.6m against Cement Australia. So far the judgment has been made available to the parties on a 'restricted basis pending resolution of confidentiality issues'. See ACCC press release. Following the judgment parties will have 21 days to file an appeal

Veda Advantage Limited v Malouf Group Enterprises Pty Limited (No 2) [2016] FCA 470
INTELLECTUAL PROPERTY — trademarks — relief — whether permanent injunction should be granted where undertaking made to court

CONSUMER LAW — contraventions of Australian Consumer Law — misleading or deceptive conduct and false representations as to sponsorship, affiliation or approval — relief — whether permanent injunction should be granted where undertaking made to court

COSTS — where applicant only partially successful — whether respondent should pay a percentage of applicant's costs or whether applicant should pay respondent's costs on either an indemnity or ordinary basis - Competition and Consumer Act 2010 (Cth) Sch 2 More...

Australian Competition and Consumer Commission v Multimedia International Services Pty Ltd [2016] FCA 439
CONSUMER LAW – pecuniary penalties – unconscionable conduct contrary to s 21 of the Australian Consumer Law – relevance to mitigation of loss of profits arising from publicity concerning the contraventions.

Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) ss 4, 18, 21, 21(1), 21(4)(c), 29, 29(1)(g), 36, 36(3), 87B, 155, 224, 224(1), 224(2), 224(3), 224(4)(b), 246, 246(2)(b); Trade Practices Act 1974 (Cth) ss 58(b), 75AZL(3) More...

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424
CONSUMER LAW – pecuniary penalties – courses of conduct and totality principle – allegedly similar conduct in the supply of other products not found to be contravening – method of calculating profits from contravening conduct – assumption by parties that "but for" test for calculating profits applies – importance of conduct being intended to make profits – relevance of sales, earnings before interest and taxation (EBIT), and profit figures

Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) ss 18, 33, 87B, 224(1), 224(2), 224(3), 224(4)(b); Therapeutic Goods Act 1989 (Cth); Trade Practices Act 1974 (Cth) More...

Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 447
COMPETITION – civil penalty proceeding – admitted contravention of the Competition and Consumer Act 2010 (Cth) – whether appropriate for court to act on admission – attempt to induce cartel conduct – agreed penalty.

COSTS – application for reduction of successful party's costs due to late admission – exercise of discretion – relevant factors – whether late admission unreasonable – whether successful party which unreasonably raised issues may be deprived of costs.

COSTS – application for indemnity costs following Calderbank offer – exercise of discretion – relevant factors – special considerations for role of regulator – reasonable prospect of success. More...

Note:  This decision follows dismissal of the ACCC's proceedings against the other respondents to the proceeding, including the Australian Egg Corporation Ltd, on 10 February, against which the ACCC has appealed.

Australian Competition and Consumer Commission v A.C.N. 099 814 749 Pty Ltd [2016] FCA 403
CONSUMER LAW – unsolicited consumer agreement provisions of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)) – consideration of the text, context and purpose of those provisions – whether the respondents' agreements with consumers to provide tax return services were unsolicited consumer agreements under the definition in s 69(1) of the Australian Consumer Law – fair and liberal construction of remedial or beneficial legislation – whether the agreements were made as a result of "negotiations" between the respondents and consumers under s 69(1)(b) of the Australian Consumer Law – consideration of the meaning of the expression "place" in s 69(1)(b) and (1)(c) of the Australian Consumer Law. More...

Legislation

Commonwealth

Competition and Consumer Amendment (Country of Origin) Bill 2016

House of Representatives Introduced and read a first time 04/05/16 (2nd Session 44th Parliament)

Second reading moved 04/05/16 

The Bill amends the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010) to alter the definition of substantial transformation as it applies to the safe harbour provisions of the ACL.

The Bill is primarily intended to simplify the tests used to justify a country of origin 'made in' claim by clarifying what substantial transformation means and removing the 50 per cent production cost test

This Bill complements the Country of Origin Food Labelling Information Standard 2016 (made under the ACL) which will come into effect from 1 July 2016

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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