In the media
ACCC names key enforcement and compliance priorities for
2017
The Chairman of the Australian Competition and Consumer Commission
Rod Sims says 2017 will see its enforcement teams hone in on
misleading and deceptive practices, anti-competitive conduct and
unfair contract terms affecting small businesses (24 February
2017).
More...
Health insurers face legal action for consumer
rip-offs
Australia's consumer watchdog plans to take legal action
against more private health insurers this year, saying many
patients are being slugged with unexpected hefty bills after
hospital visits (23 February 2017).
More...
ACCC releases Statement of Issues on South32 Ltd's
proposed acquisition of Metropolitan Collieries
The ACCC has issued a Statement of Issues on the proposed
acquisition by South32 of Metropolitan Collieries, currently owned
by Peabody Energy. The ACCC is concerned that the proposed
acquisition may substantially lessen competition in the supply of
coking coal to Australian steelmakers (23 February 2017).
More...
Competition and Consumer Amendment (Misuse of Market
Power) Bill 2016: Senate Committee Reports
The Senate Standing Committee on Economics (the
SSCE) has delivered its report on the
Competition and Consumer Amendment (Misuse of Market Power)
Bill 2016 (Cth) (the Bill) on 16 Feb 2017.
The Bill seeks to implement the reforms to the Competition and
Consumer Act 2010 (Cth) (CCA) recommended by
the Harper Review of competition policy (23 February 2017). More...
Petrol prices were the highest in more than a year in
December quarter
The ACCC's ninth quarterly report on the Australian petroleum
industry has found that the December quarter 2016 had the highest
quarterly average price since the June quarter 2015. International
crude oil and refined petrol prices increased because of the OPEC
cartel's decision to restrict oil supply. Cartel conduct leads
to higher prices and economic harm and, in this case, it has meant
higher prices at the pump for Australian motorists, Mr Sims said
(22 February 2017).
More...
Lumo energy pays penalty of $10,800 for representations
about retail gas tariff increase
Energy retailer Lumo Energy Australia Pty Ltd
(Lumo) has paid a penalty of $10,800 following the
issue of an infringement notice by the ACCC. The ACCC issued the
infringement notice because it had reasonable grounds to believe
that Lumo had contravened the Australian Consumer Law
(ACL) by making a false or misleading
representation with respect to the price of its retail gas tariff
(20 February 2017).
More...
REA Group Limited v Fairfax Media Limited [2017] FCA 91:
False and Misleading Conduct
A Federal Court in Melbourne has ruled in favour of Fairfax Media
in the majority of contended issues in the case of REA Group
Limited v Fairfax Media Limited [2017] FCA 91. Fairfax
Media's subsidiary Domain's series of advertisement were
contested by REA Group for false and misleading and deceptive
conduct in relation to the claims the ads made. Out of the seven
contended ads, the Federal Court ruled that only two constituted
misleading or deceptive conduct (15 February 2017). View the
decision here.
In practice and courts, published reports
ACCC review of Healthe Care's proposal to buy Pulse
Health, including the Forster Private Hospital
Healthe Care is planning to buy Pulse Health who owns 12 healthcare
facilities in Australia – five in NSW, four in Queensland,
and three in Victoria. The ACCC is considering whether this deal
will reduce competition for health care services, particularly in
the Forster/Great Lakes and Taree/Manning areas of NSW.
ACCC Dairy Inquiry
The ACCC is holding public inquiries in relation to the
Dairy Inquiry from 6 February to 22 March 2017. It has been
reported that up to 330 dairy farmers have given evidence in the
first two days of ACCC hearings in Queensland and NSW.
Cases
Zreika v Client Management Systems Australia Pty Ltd
[2017] FCCA 169
CONSUMER LAW – Whether the Respondent contravened s.18 of
Schedule 2 – Australian Consumer Law, to the Competition
and Consumer Act 2010 because it engaged in misleading and
deceptive conduct – common law claim of negligence –
application dismissed.
Ebbsfleet Pty Ltd as trustee for Ebbsfleet Superannuation Fund
v Semantic Software Asia Pacific Ltd (No 3) [2017] NSWSC
78
Plaintiffs entitled to damages for breach of warranty that shares
in first defendant would triple in value within two years of issue
and by damage suffered by reliance on representation to same effect
made without reasonable grounds and thus misleading.
CONTRACT – Share Issue Agreements – warranty that
subscribed shares in first defendant would triple in value in two
years – proper construction of the agreements – whether
they specify exclusive remedy in event shares did not triple in
value – whether shares did triple in value – value of
patents owned by wholly owned subsidiary of first defendant;
INTELLECTUAL PROPERTY – value of such patents; MISLEADING OR
DECEPTIVE CONDUCT – admitted representation that shares would
triple in value in two years – whether defendants had
reasonable grounds to make representation.
Gore v Australian Securities and Investments Commission
[2017] FCAFC 13
CORPORATIONS – Corporations Act 2001 (Cth) –
accessorial liability – prohibition on offering securities
under s 727(1) and (2) without disclosure document being lodged if
disclosure required under Pt 6D.2 – whether alleged accessory
without actual knowledge that offer required disclosure capable of
being found to be knowingly concerned in principal's
contraventions of s 727(1) and (2) – elements of
accessory's contravention of s 727(1) and (2) – whether
necessary for party alleging contravention to prove that no
exemption from requirement of disclosure applies to the offer of
securities.
CORPORATIONS – Corporations Act 2001 (Cth) –
accessorial liability – where civil and criminal penalties
apply to offences under s 727 – where offence of contravening
s 727(1) and (2) created by s 1311(1) – where s 1308A of
Corporations Act 2001 (Cth) applied provisions of
Criminal Code (Cth) to offences under Act – whether
Pt 2.4 of Criminal Code (Cth) required proof of physical
and fault elements in respect of contravention of s 727(1) and (2)
– proof of physical and fault elements under the Criminal
Code (Cth) necessary to establish accessory's contravention of
s 727(1) and (2).
CORPORATIONS – accessorial liability for misleading or
deceptive conduct under s 1041H of the Corporations Act
2001 (Cth) and s 12DA of the Australian Securities and
Investments Commission Act 2001 (Cth) – elements of an
accessory's contravention of s 1041H and s 12DA – whether
accessory had actual knowledge that disclosure document made
representation that was misleading or deceptive or likely to
mislead or deceive.
Legislation - Commonwealth
Competition and Consumer Legislation Amendment (Small Business
Access to Justice) Bill 2017
Registered 16/02/2017; Introduced Senate 16/02/2017 - This Private
Senators' Bill amends two acts, the Competition and
Consumer Act 2010 and the Australian Small Business and
Family Enterprise Ombudsman Act 2015. It allows judges in the
Federal Court to waive liability for adverse costs to small
business private litigants in cases related to the misuse of market
power. It also allows the Small Business and Family Enterprise
Ombudsman to provide assistance to small businesses in preparing
these cases.
Current Inquiries
Corporations Amendment (Crowd-sourced Funding) Bill 2016
[Provisions]
Status: Accepting Submissions Date Referred: 01 December 2016
Reporting Date: 13 February 2017. See the released report
here.
Senate Economics Committee receiving submissions on MMP
bill
The
Competition and Consumer Amendment (Misuse of Market Power)
Bill 2016 was referred to the Senate Economics Committee
on 1 December 2016.
The Committee reported on 16 February with the majority
recommending passage of the bill subject to some modification. The
three recommendations made were:
Recommendation 1: The committee recommends that
the proposed mandatory factors, as drafted in subsection 46(2) of
the bill, be removed.
Recommendation 2: The committee recommends that
the government undertake a post-implementation review of the
reforms to section 46 at least five years after commencement.
Recommendation 3: The committee recommends that
the bill be passed.
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