Australia: Competition and Consumer Law - What's News - 21 June 2016

In the media – National

US charges two Japanese auto-parts firms with price-fixing
The United States charged two Japanese auto-parts companies and five executives with price-fixing Wednesday in a long-running investigation into illegal competitive practices in the parts industry (16 June 2016). More...

ACCC accepts divestiture undertakings from Primary Health Care Ltd and Healthscope Ltd
The ACCC has accepted s 87B undertakings from Primary Health Care and Healthscope. The undertakings arose from the ACCC's investigation of Primary's acquisition of Healthscope's pathology assets in Qld in 2015, which occurred without the parties notifying the ACCC. The change in market structure would be likely to result in increased prices and reduced service levels for pathology service (16 June 2016). More...

Gold Coast travel agency fined $300K for telemarketing breach
Consumer group Choice says a record fine handed down by the Federal Court to a Gold Coast company that breached the 'Do Not Call' register should act as a warning to other businesses (16 June 2016). More...

ACCC takes action against Medibank for alleged misleading conduct
The competition watchdog says it has started proceedings in the Federal Court against Medibank for "misleading and unconscionable conduct" (16 June 2016). More (ABC News)... More (ACCC)...

ACCC v Hillside (Australia New Media) Pty Ltd t/a Bet365 (No 2) [2016] FCA 698: Bet365 Found Guilty of Misleading and Deceptive Practices ?A judgment handed down by the Federal Court has ordered Hillside (Australia New Media) Pty Ltd (trading in Australia as Bet365) and its UK service company, Hillside (Shared Services) Limited (together, Bet365) to pay penalties totalling $2.75 million for making false representations by Bet365's "free bets" offer to new customers, in proceedings brought by the ACCC (14 June 2016). More...

Allianz forced to repay $231,000 after misleading pet insurance customers
Insurance company Allianz is being forced to repay hundreds of thousands of dollars, after it is found to have misled some pet insurance customers (13 June 2016). More...

Timebase: Clothing Retailer Sportscraft Penalised for Misleading Consumers
?The ACCC has reported that upmarket clothing retailer APG & Co Pty Ltd, trading as Sportscraft, has paid penalties totalling $21,600 after being issued with two infringement notices by the Australian Competition and Consumer Commission (ACCC) following an investigation into the recognition of consumer guarantee rights in the clothing retail industry (10 June 2016). More...

ACCC appeals Cement Australia level of penalties
The ACCC has filed a Notice of Appeal from the Federal Court's penalty decision against Cement Australia Pty Ltd and related companies for breaches of the competition provisions of the Trade Practices Act 1974. The ACCC will argue to the Full Court that the penalties imposed on Cement Australia are manifestly inadequate, and not of appropriate in deterring anti-competitive conduct (06 June 2016). More...

ASIC throws punches but yet to claim a knockout blow over rate rigging
NAB is now the third major bank to find itself in the Federal Court over alleged interest rate rigging, after the Australian Securities and Investments Commission launches action against it (08 June 2016). More (ABC News)... More (ASIC)...

Labor promises increase in penalties and market studies power for the ACCC
Andrew Leigh MP announced that Labor would increase civil penalties under the Australian Consumer Law from $1.1m to $10m and adopt the EU's penalty system for anti-competitive conduct ('based on 30 per cent of the annual sales of the relevant product or service, multiplied by the number of years the infringement took place, limited to the greater of 10 per cent of annual turnover, or $10 million'); and amend the CCA to give the ACCC a market studies function 'so that it can explore public interest issues such as pricing discrepancies and increased market competition') (08 June 2016). More (Andrew Leigh MP site)... More (Labor policies site)...

Egg prices likely to rise as farmers face legal uncertainty
A national egg shortage has sent retailers and consumers scrambling as egg farmers face both uncertainty over legislation covering free-range eggs and claims of the same price squeeze facing the dairy industry. In addition, recent government changes to the definition of 'free range' is placing pressure on all egg ranges as producers adjust to these new labelling requirements (08 June 2016). More...

In practice and courts, published reports

Private Enforcement of Competition Law in Australia - Inching Forwards
Author: Caron Beaton-Wells (2016) 39(3) Melbourne University Law Review 1-54
The recently concluded independent review of Australian competition policy, law and institutions led by Professor Ian Harper examined proposals in relation to private enforcement of the competition rules. That private actions for damages were even on the review agenda is a positive development in an area that has long escaped the attention of policy-makers and enforcement leaders in this country. More...

Cases

Redmond Family Holdings v GC Access Pty Ltd & Ors [2016] NSWSC 796
TRADE PRACTICES – Misleading or deceptive conduct claims under s 18 of the Australian Consumer Law, 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – where plaintiff asserted various misleading or deceptive conduct claims against defendants in respect of the plaintiff's purchases of shares in companies – where some of the claims against particular defendants were based on non-disclosure of loans owed by the companies to entities associated with those defendants that could be converted into equity at their discretion – where right to convert loans to equity was subsequently exercised thereby diluting plaintiff's equity in the companies and depriving plaintiff of control of the companies – whether any representations were misleading or deceptive and if so whether they were causative of plaintiff's loss – whether plaintiff's misleading or deceptive conduct claims based on defendants' non-disclosure of information succeeds – whether plaintiff is a concurrent wrongdoer under s 34 of the Civil Liability Act 2002 (NSW) such that if the plaintiff were to succeed each of the defendant's liability should be limited to an amount proportionate to each of the defendant's responsibility for plaintiff's loss. PROCEDURE – Costs – where plaintiff was only successful against some of the defendants and on a narrower basis than argued – whether costs should follow the event.

Australian Competition and Consumer Commission v Hillside (Australia New Media) Pty Ltd trading as Bet365 (No 2) [2016] FCA 698
CONSUMER LAW – assessment of pecuniary penalty – number of contraventions – course of conduct principle – internet sports betting – promotional headline offers of free bets for new customers – contraventions of Australian Consumer Law – misleading or deceptive conduct and false representations – dominant message conveyed – enticement into marketing web – whether adequate disclosure of terms and conditions – penalties assessed – relief granted
Competition and Consumer Act 2010 (Cth) Sch 2, ss 18, 29, 224, 232 and 246.

Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd [2016] FCAFC 78
CONTRACTS – obligation to manage loans "in an efficient and business-like manner and in accordance with sound business practices" and to "maintain such procedures as would be taken and maintained by a reasonable prudent mortgagee in connection with each Participating Loan" – whether obligation breached
TRADE PRACTICES – s 84(2) of the Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth) – meaning of "on behalf of" – whether fraudulent acts of employee were on behalf of employer
The primary judge found, and the three grounds of appeal concern, Pioneer's liability based upon (i) its contract with Columbus, (ii) vicarious liability for the acts of its employee, and (iii) liability under s 84(2) of the Trade Practices Act 1974 (Cth) and Competition and Consumer Act 2010 (Cth) for misleading or deceptive representations made by its employee "on its behalf".

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676
TRADE PRACTICES – competition law – restrictive trade practices – admitted contraventions of s 45(2) of Trade Practices Act 1974 (Cth) – whether order sought by consent appropriate in the circumstances – whether proposed pecuniary penalty appropriate - Competition and Consumer Act 2010 (Cth); Trade Practices Act 1974 (Cth) s 45, 76.

Elan Boulevard Pty Ltd v Fnyn Investments Pty Ltd & Ors [2016] QSC 123
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – PARTICULAR CASES – REAL ESTATE TRANSACTIONS – where the first defendants contracted with the plaintiff for the purchase of two apartments – where the first defendant terminated the contracts prior to settlement – where the defendants allege that the plaintiff, through its agent, made statements to a third party – where the defendants allege those statements were subsequently communicated to the second defendant by that third party – where the defendants allege the statements were about the expected profit on the apartments and the availability and terms of finance for the purchase – where the defendants allege those statements were false and concerned future matters – whether the plaintiff's agent made the alleged statements – whether the statements were relied upon by the defendants – whether the plaintiff's agent knew or ought to have known the alleged statements would be communicated to the second defendant.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the plaintiff claims interest on the purchase price of the apartments at the contractual interest rate of 15%, from the date of settlement to the date of judgment – where the plaintiff is entitled to the contractual interest rate on any judgment sum obtained against a purchaser – whether the plaintiff is entitled to interest at the contractual interest rate up until the date of judgment, or only until the termination of the contracts.

Legislation

ACT

Traders (Licensing) Bill 2016
The Australian Capital Territory government has introduced the Traders (Licensing) Bill 2016 into Parliament on 8 June 2016. The Bill establishes a Single Licensing Framework for fair trading laws. The Bill will provide an effective and efficient administration for the licensing of traders whilst ensuring such licensing supports regulatory actions in the public interest (08 June 2016). 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.

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Authors
Ian Robertson
 
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