Australia: Competition and Consumer Law - What's News - 7 December 2016

In the media

Some car dealers misleading consumers over safety ratings, ANCAP tells ACCC
Some car dealers are peddling misinformation about the safety ratings of new cars in order to secure a sale, an independent vehicle safety advocate says. The Australasian New Car Assessment Program (ANCAP) cited examples in its submission to the Australian Competition and Consumer Commission's (ACCC) market study of new cars (02 December 2016).

Delivering strengthened competition law – Section 46 legislation introduced
The Turnbull Government has today introduced legislation to strengthen Australia's competition law, reforms that will benefit consumers, businesses and the economy by boosting innovation, opening new markets and increasing choice for communities.
The Harper Review recommended strengthening section 46 of the Competition and Consumer Act 2010 after finding that current misuse of market power law is not reliably enforceable and does not effectively target and deter anti-competitive conduct, to the detriment of Australian consumers (01 December 2016).

ACCC takes action against MSY alleging misrepresentation of consumer guarantees
The ACCC has instituted proceedings in the Federal Court against MSY Technology Pty Ltd, MSY Group Pty Ltd, and M.S.Y. Technology (NSW) Pty Ltd (MSY Technology) alleging that MSY Technology has misrepresented consumers' rights to remedies for faulty products (01 December 2016).

ACCC proposes to deny banks' application to collectively bargain over Apple Pay
The ACCC has issued a draft determination proposing to deny authorisation to the Commonwealth Bank, Westpac, NAB and Bendigo and Adelaide Bank 'to collectively bargain with and boycott Apple on Apple Pay.' More detail on news page (29 November 2016). More...

ACCC takes proceedings against ANZ and Macquarie bank for attempted cartel conduct
On 25 November 2016, the ACCC brought Federal Court proceedings, by consent, against Australia and New Zealand Banking Group Limited and Macquarie Bank Limited alleging attempts to engage in cartel conduct. The ACCC alleges that on various dates in 2011, ANZ or Macquarie tried to influence the ABS MYR Fixing Rate published on that day, and therefore attempted to breach the cartel provisions of the Competition and Consumer Act 2010 (25 November 2016).

ACCC takes action against Meriton over online reviews
The ACCC has instituted proceedings in the Federal Court against Meriton Property Services Pty Ltd, trading as 'Meriton Serviced Apartments' (Meriton). The ACCC alleges that Meriton engaged in misleading or deceptive conduct in connection with the posting of reviews of its properties on the TripAdvisor website (24 November 2016).

Business hates the ACCC
Competition regulator Rod Sims has plenty of work to do to improve relations with business judging from a survey of leaders from a range of industries undertaken as part of an annual report card. The most damning criticism was in relation to the ACCC's openness and transparency in its dealings with business (22 November 2016). More...

In practice and courts, published reports

ACCC completes first Regulator Performance Framework review
The ACCC has released its first Regulator Performance Framework Review, in which it self assesses against six KPIs (22 November 2016). media release report

Reforms to Strengthen Real Estate Sector
The NSW Government has eased its Real Estate and Property Services Industry Reform Paper that aims to strengthen industry standards and better protect consumers and increasing transparency and accountability and strengthening trust account processes. The paper is available for feedback at Legislation to implement these reforms is expected to be introduced to Parliament in the first half of 2017.

Have your say on the Australian Consumer Law
The ACL review is being undertaken to establish whether the law has been effective and how it can be improved to benefit traders and consumers, without imposing unnecessary red tape.
The Australian Consumer Law Review Interim Report is open and can be accessed at Formal submissions and comments are encouraged. Submissions close on 9 December 2016 ahead of the final report in March 2017.


Insight Radiology Pty Ltd v Insight Clinical Imaging Pty Ltd [2016] FCA 1406
TRADE MARKS – appeal of decision of the Registrar to refuse to register trade mark – whether marks substantially identical – whether owner of the trade mark for the purposes of section 58 and 59 of the Trade Marks Act 1995 (Cth) – construction of the meaning of "applicant" under the Trade Marks Act 1995 (Cth) - whether there was a valid assignment of trade mark– whether use of the applicant trade mark likely to deceive or cause confusion – whether use of the trade mark would be contrary to law – whether defence of use in good faith available– whether defence of right to use marks under the Trade Marks Act 1995 (Cth) available – whether there was honest concurrent use – whether use of the applicant trade mark constituted conduct that was misleading or deceptive, or likely to mislead or deceive – whether false representations – whether passing off – whether breach of the rule in Browne v Dunn – whether individual director a joint tortfeasor with the company – cross claim – application for cancellation or rectification of the Trade Mark Register - inherent adaptability of trade marks to distinguish – whether prior inconsistent application for registration.

Aquatic Air Pty Ltd v Siewert [2016] NSWCA 318
TRADE PRACTICES / CONTRACTS – appeal from decision of primary judge refusing to set aside share sale agreements and make award for damages – shares in third and fourth respondents sold to fifth respondent – where agreements allegedly vitiated by misleading and deceptive conduct in failing to disclose purported GST liability – whether representations were made as to GST liability of company – where representation reliant upon warranties in agreement – whether such representations, as warranted, were made – whether the warranties could be severed from agreement –whether representations, if made, were false – effect of A New Tax System (Goods and Services Tax) Act 1999 (Cth), s.38-10(5) – whether company not liable for GST – whether representations made as to liability of company to pay employee and redundancy entitlements – cross-appeal from decision of primary judge that option for sale of a property had not been validly exercised – where option for sale had been exercised without payment of a deposit as contractually required – whether contractual right to vary price extended to capacity to waive requirement for payment of a deposit PERSONAL PROPERTY – alienation of personal property – assignment of causes of action – where causes of action derive from Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) – whether s.477(2)(c) of Corporations Act enables assignment of otherwise unassignable cause of action.

Lu v Li (Building and Property) [2016] VCAT 1998
Applicant owner found to have incurred loss and damage because of the misleading and deceptive conduct of a registered builder, the second respondent, who obtained warranty insurance but took no part in the applicant's works.
First respondent sought apportionment against person who performed the works, the third respondent, and the relevant building surveyor, the fourth respondent, as alleged concurrent wrongdoers pursuant to the provisions of Part IVAA Wrongs Act 1958 (Vic).
First respondent's apportionment proceeding against fourth respondent subsequently dismissed by consent. Owner subsequently settled with first respondent prior to hearing, but first respondent remained a party for the purpose of apportionment.
Applicant's claim against the second respondent found to be an apportionable claim, notwithstanding that apportionment was not sought by the second respondent by way of defence.
Respective liability of each of the first, second and third respondents to the applicant found to be limited under Part IVAA Wrongs Act 1958.


Competition and Consumer Amendment (Misuse of Market Power) Bill 2016
Introduced and read a first time 01 December 2016 Second reading moved 01 December 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.
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. The substantial transformation test in its present form is inadequate and many consumers are confused or feel they are being misled, as it encourages meaningless claims like 'Made in Australia from local and imported ingredients' when food is only minimally processed in Australia.

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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Ian Robertson
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