Australia: Competition and Consumer Law - What's News - 8 June 2016

Last Updated: 15 June 2016
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2017

In the media – National

Woolworths fined $9m for involvement in laundry detergent cartel
The Federal Court orders Woolworths to pay penalties totalling $9 million for its involvement in a laundry detergent cartel (03 June 2016). More...

ACCC warns against potentially misleading claims about the tax benefits of health insurance
The ACCC is warning consumers to be alert to potentially misleading claims about the tax benefits of obtaining private health insurance. The ACCC considers that these companies are potentially misleading consumers and gaining an unfair competitive advantage by making representations that leverage off many consumers' lack of knowledge about the application of the Medicare Levy Surcharge (02 June 2016). More...

ACCC authorises collective bargaining by chicken growers in Western Australia
The ACCC has issued a final decision allowing members of the WA Broiler Growers Association to collectively bargain with the chicken processor they supply. Authorisation is granted for ten years. These collective bargaining arrangements are likely to result in transaction cost savings and give broiler growers greater say in the terms and conditions of their contracts with chicken meat processors (31 May 2016). More (ACCC Media)... More (ACCC authorisations and notifications register entry)...

Condor Blanco Mines Limited - Declaration of Unacceptable Circumstances and Orders by TPA
The Panel considered that the acquisition of control over voting shares in Condor did not take place in an efficient, competitive and informed market. Condor shareholders and the market were not aware of Condor's or EMC's relevant interest in Condor shares, the nature of the interest or the circumstances of the acquisition or Ms Philip's substantial holding and any agreement giving rise to it (30 May 2016). More...

ACCC to commence excessive surcharge compliance role on 1 September 2016
The ACCC will begin enforcing the ban on excessive surcharges for large merchants on 1 September 2016. Surcharges are excessive when they exceed the permitted cost of acceptance, which is defined in the Reserve Bank of Australia's Payments System Board Standard. More...

Former Sigma CEO and CFO sentenced for falsifying books and giving false or misleading information
The former managing director and CEO of Sigma Pharmaceuticals Ltd – Elmo De Alwis, and former chief financial officer – Mark Smith, were sentenced for charges relating to falsifying Sigma's books and giving false or misleading information to Sigma's directors and auditors. Honour Judge Richard Smith said that the offending was serious in nature and rejected a submission that the offending was technical only (26 May 2016). More...

In practice and courts, published reports

TP 035: Condor Blanco Mines Limited - Declaration of Unacceptable Circumstances and Orders - 30/05/2016
The Panel has made a declaration of unacceptable circumstances ( Annexure A) and final orders ( Annexure B) in relation to an application dated 1 May 2016 by Mr Joshua Farquhar in relation to the affairs of Condor Blanco Mines Limited (see TP15/27). The Panel considered that the acquisition of control over voting shares in Condor did not take place in an efficient, competitive and informed market. More...

Treasury consultation paper: improving consumer outcomes and enhancing competition in relation to credit card interest rates
The Treasurer has released a consultation paper outlining 'reforms to provide greater legislative protection to vulnerable consumers, to exert more competitive pressure on credit card issuers and to provide consumers with the information they need to make the best choices about how they use their credit cards.' Interested parties may make a submission by 17 June 2016. More (Treasury)... More (Parliament)...

NSW Fair Trading: Service station data collection
Service station operators across NSW are being asked to provide certain information to NSW Fair Trading as a result of the Biofuels (Return by Operators of Service Stations) Notice 2016 (the Notice) and the Fair Trading (FuelCheck) Order 2016 (the Order). Both of these instruments were published in the NSW Gazette on 6 May 2016. The information will assist the NSW Government to deliver reforms that will improve the regulation of the biofuels mandate and encourage greater competition in the retail fuel market.

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. Submissions on the draft report can be made until 3 June. A final report is expected in August. More...


OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120
TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by respondent - whether representations were misleading or deceptive or likely to mislead or deceive – where appellant alleged respondent failed to disclose alleged consensus within the respondent of intention to proceed to open tender when current lease expired – whether appellant had reasonable expectation of disclosure where parties in commercial negotiations – whether respondent had concluded view of whether binding agreement had been entered– where both parties had access to legal advice and appellant had no reason to think that it could look to the respondent for advice – whether appellant relied on non-disclosure – challenge to primary judge's findings as to credit of witnesses – whether consistent with considering inherent probabilities of competing accounts and objective indicators TRADE PRACTICES - misleading or deceptive conduct – loss of opportunity claim by appellant – causation – whether opportunity lost was of some commercial value – whether evidence established respondent would have sold business had it known the true position PROCEDURE - Miscellaneous procedural matters – declarations - where findings of misleading conduct by primary judge – where primary judge made no declaration that respondent engaged in misleading or deceptive conduct – discretion of the Court - where respondent sought declaration in general terms – where declaration would be merely prefatory to an order for damages – whether declaration of no utility.

Guirguis Pty Ltd & Ors v Michel's Patisserie System Pty Ltd & Ors [2016] QDC 117
Judgment for the first, second and third defendants (on their counterclaim) against the plaintiffs for $650,552.24.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – MISLEADING OR DECEPTIVE CONDUCT – FRANCHISE AGREEMENT – FALSE REPRESENTATIONS - "NO TRANSACTION" CASE – where representations purported to have been made – whether representations relied upon – where allegation that information should have been disclosed – whether failure to disclose amounted to misleading or deceptive conduct – whether representations not outlined in deed of prior representations & questionnaire could later be relied upon.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DAMAGE – where express exclusions in contract – whether monetary recovery available.
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – CAUSATION – where express exclusion for liability for negligence in contract – whether monetary recovery available.
The plaintiffs' primary claim is a "no transaction" case—namely that they would not have entered into the franchise business and related agreements (the agreements) but for the defendants' alleged misleading or deceptive conduct (contrary to the Australian Consumer Law).

Zheng v Sunning Pty Ltd (Civil Claims) [2016] VCAT 809
Civil Claims List; sale of a business; dispute over payment of stock; pursuant to the contract where the stock more than 12 months old was not defined as stock; the stock in relation to the claim was five to six years old; misleading and deceptive conduct; misrepresentation about the value of the stock; reliance on the representation; unconscionable conduct; Australian Consumer Law ss.18, 20, 21, 236; Australian Consumer Law and Fair Trading Act 2012 ss.182(3)(a) and (b), 184(2)(b)(ii).

Legislation - Commonwealth Bills

Tobacco Amendment Bill 2016
Legislative Assembly 25/5/2016 Moved second reading, debate adjourned
This Bill is for an Act to amend the Tobacco Act 1987 to prohibit smoking in outdoor dining areas, to regulate the sale, promotion and use of e-cigarette products and for other purposes.

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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