Australia: Competition and Consumer Law - What's News - 11 October 2016

Last Updated: 19 October 2016
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2016

In the media – National

Franchise fined $330,000 for misleading and deceiving consumers
A real estate agency in Melbourne has been fined $330,000 in the Federal Court after admitting to misleading and deceiving potential buyers by underquoting on properties (06 October 2016). More...

ACCC invites industry comment on complex, and vital telecommunications issues
Mr Sims said it is time to re-examine the need for declaring a domestic mobile roaming service. Mobile coverage and choice of mobile service provider and competitively priced retail offers are important issues for consumers living and working in regional areas and the ACCC is well aware the mobile network operators have all made significant investments in their mobile networks (04 October 2016). More...

Woolworths petrol sale under ACCC scrutiny
Rod Sims is getting set to take the microscope to an expected $1.6 billion deal by Woolworths to sell its petrol station network to an existing player in what is already a fairly concentrated market (04 October 2016). More...

Australia experiments with a "third way" on resale price restrictions
Resale price maintenance (RPM) occurs when a manufacture or distributor and a wholesaler prevents a retail or distributor from selling below a specified price. A proposed new law in Australia offers a different approach from other countries (03 October 2016). More...

ASIC commences civil penalty proceedings against Vocation Limited (in liquidation)
ASIC alleges that Vocation made representations in relation to its securities that were misleading; that it failed to notify the ASX of information that it was required to disclose; and that it provided the ASX with a defective cleansing notice relied upon to raise approximately $72.5 million from institutional and sophisticated investors pursuant to a placement in September 2014 (30 September 2016). More...

Credit card bankruptcies could be the next banking scandal
Credit cards are rapidly becoming one of the most common causes of personal bankruptcy, and there are indications that the major banks have been granting inappropriate credit limits, possibly breaching responsible lending laws (29 September 2016). More...

Much to do to protect competition in the retail sector
Australian Competition and Consumer Commission Chairman Rod Sims said "Going forward, our main competition role in retail will be to ensure new entrants are not prevented from competing on their merits. We will, therefore, be alert to the consequences of large firms acquiring promising start ups, we will closely monitor access to data issues, and we will continue to support the proposed Harper changes to section 46 (28 September 2016). More...

ACCC to review online 'reviews'
The ACCC has joined an international initiative to ensure that online product and service reviews and endorsements are fair and accurate. The review is part of the annual internet sweep by the International Consumer Protection and Enforcement Network (ICPEN), involving over 50 consumer protection Agencies around the world (27 September 2016). More...

In practice and courts, published reports

Government releases exposure draft of Harper competition reform bill
The Government released an exposure draft of the Harper reform bill on 5 September 2016. See further at Exposure Draft and Explanatory Material.
Treasury is conducting a consultation on the Exposure Draft Bill relating to the recommendations made by the Harper Panel in 2015. The Exposure Draft bill was released on 5 September 2016 and consultation closed on 30 September 2016. The Treasury website notes that the draft includes: ... amendments to the misuse of power provision, as well as a significant number of other important amendments to the CCA which were supported by the Government. More...

ACCC: issues paper for communications sector market study
The paper calls for comment on a range of matters that may affect competition, the efficient operation of markets, and investment incentives over the next five years and beyond. Submissions are invited until 14 October 2016. The issues paper and further information on the market study is available at: Communications sector market study. More...

ACCC: New law on unfair contract terms to provide protections for farmers and agriculture businesses
From 12 November 2016 a new law comes into place that will protect farmers and small businesses from unfair contract terms. If a farmer is concerned about the terms of a contract they have received, they should visit the ACCC website or contact the ACCC's Agriculture Unit for information about the law. More...


Commissioner for Consumer Protection v Unleash Solar Pty Ltd (in liq) (No 2) [2016] FCA 1177
CONSUMER LAW – misleading and deceptive conduct – non-supply of goods – non-supply of free item – where application by State regulator under accrued jurisdiction – whether second respondent 'involved' in contraventions of the first respondent – declarations, injunction and civil pecuniary penalties sought – relevant principles in the assessment of civil pecuniary penalties under ss 29(1), 32(2) and 36(4) ACL (WA).
PRACTICE AND PROCEDURE – application for default judgment – appropriate relief including assessment of pecuniary penalties in default of appearance by the respondents – where service abroad required. Australian Consumer Law (WA) ss 29(1), 32(2), 36(4), 224; Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 18, 29(1)(g), 29(1)(m), 32(2), 36(4), 232.

Australian Securities and Investments Commission v Channic Pty Ltd (No 4) [2016] FCA 1174
CONSUMER LAW – consideration of contended contraventions of ss 113, 114, 115, 116, 117, 118, 121 and 123 of the National Consumer Credit Protection Act 2009 (Cth).
CONSUMER LAW – consideration of contended contraventions of ss 128, 129, 130, 131 and 133 of the National Consumer Credit Protection Act 2009 (Cth).
CONSUMER LAW – consideration of contended contraventions of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth).
CONSUMER LAW – consideration of contended contraventions of s 76 of the National Credit Code, Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth).

RinRim Pty Ltd v Deutsche Bank AG [2016] NSWSC 1377
BANKING AND FINANCE – where capital raising by Accelerated Renounceable Entitlement Offer (AREO) underwritten by three underwriters/joint lead managers – where contract between underwriters and publicly listed company – whether underwriters or publicly listed company owed obligations to particular shareholders and/or investors in AREO process. NEGLIGENCE – where novel claim for imposition of duty of care – identification of particular class – salient features to be considered – whether duty of care to be imposed – if duty of care imposed success of claims dependent upon whether evidence leads to a conclusion that plaintiff would have acted in a particular manner. MISLEADING OR DECEPTIVE CONDUCT – where plaintiff claims that defendants failure to provide it with notice that it could make contact with the joint lead managers to ask to be included in an aspect of the AREO led it to believe that it was not qualified for inclusion – where outcome dependent upon acceptance of plaintiff's witness evidence as to what it would have done if given such notice.

Christie v Mastores[2016] WADC 137
Misleading or deceptive conduct - Silence or non-disclosure - Expired prospectus – Section 725 Corporations Act – Section 1325 Corporations Act - No jurisdiction to make orders pursuant to s.1325 Corporations Act – Section 708(8) Corporations Act - Sophisticated investor.


Competition and Consumer Amendment (Competition Policy Review) Bill 2016 [Exposure Draft]
This draft contains significant amendments to the Competition and Consumer Act 2010 (the CCA). See the Exposure Draft.

Competition and Consumer Amendment (Country of Origin) Bill 2016
Report due 10/10/2016 - 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. This Bill complements the Country of Origin Food Labelling Information Standard 2016 (Information Standard) (made under the ACL) which came into effect on 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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