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.
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.