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...
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