Australia: Competition and Consumer Law - Whats News – 28 March 2017

Last Updated: 30 March 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2017

In the media

Scott Morrison to amend effects test legislation to remove hurdles for proving misuse of market power
Treasurer Scott Morrison will seek to add an amendment to the government's effects test legislation today that will remove the "mandatory factors" a court would have to consider when deciding whether a business has misused its market power, in a move small business groups say will hopefully pivot big business towards a mindset of corporate responsibility (23 March 2017). More...

Australian Vocational Learning Centre agrees to make repayments for VET FEE-HELP diploma courses
The Australian Vocational Learning Centre Pty Ltd (AVLC) has agreed to cancel enrolments and repay VET FEE-HELP funding to the Commonwealth for students affected by certain marketing practices that breached the Australian Consumer Law, including false or misleading representations to consumers, including that the VET FEE-HELP courses were free, government funded or specifically for low-income individuals (23 March 2017). More...

Blackmores fined $65,000 in China for false claims
Blackmores, the vitamin company which has boomed thanks largely to Chinese sales, has been fined about $65,000 by the Shanghai Industry and Commerce Bureau for making false claims. The bureau said the company claimed in advertising posted on the social media platform WeChat and in stores that its products could prevent and cure cardiovascular and cerebrovascular diseases and arthritis (17 March 2017). More...

ACCC releases statement of issues on Caltex's proposed acquisition of Milemaker
The ACCC has released Statement of Issues in relation to the proposed acquisition by Caltex of a chain of Victorian service stations from Milemaker Petroleum. The ACCC's preliminary view is that the acquisition may substantially lessen competition for the retail supply of petrol in Melbourne (16 March 2017) View merger register. More...

Blogger Belle Gibson may have been delusional when faking brain cancer: court
?Fake wellness blogger Belle Gibson may have been under "some kind of delusion" that she had brain cancer, but is guilty of misleading and deceptive conduct, a judge finds (15 March 2017). More...

New technology and digital disruption bring new challenges for consumer regulator
Fast-moving disruptive technologies and anti-competitive responses to those technologies by incumbent businesses are some of the key challenges facing consumer regulators, said Australian Competition and Consumer Commission Chairman Rod Sims (15 March 2017). More....

Tabcorp takes Tatts bid to tribunal
Tabcorp is seeking tribunal authorisation for the proposed merger, after the ACCC identified competition concerns earlier this month. Tabcorp says it has withdrawn its application for informal clearance from the ACCC and has lodged an application with the ACT, in the belief it has "a compelling case" for the tribunal, which considers a balance of public benefits rather than solely any lessening of competition (13 March 2017). More...

ACCC takes action against Aveling Homes over online review websites
The ACCC alleges that Aveling Homes created review websites that represented they were independent of Aveling Homes, and that the appearance, layout and features gave consumers the overall impression that they were affiliated with an independent third party consumer review website, Product Review, when this was not the case. The ACCC also alleges that Aveling Homes' marketing manager, Sean Quartermaine, was knowingly concerned in Aveling's conduct (13 March 2017). More...

Court dismisses ACCC cartel proceedings against electrical cable manufacturers and wholesalers
The Federal Court yesterday dismissed cartel proceedings brought by the ACCC against electrical cable manufacturers and wholesalers. The ACCC also alleged two respondents engaged in bid rigging in response to a request for proposals from Caltex for the supply of electrical cable for an upgrade of the Kurnell Refinery in Botany Bay, NSW (10 March 2017). More... (Judgment) More...

In practice and courts, published reports

Debate resumes on Misuse of Market Power Bill
The Government has introduced the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 into the House of Representatives. The Bill, if passed, would implement the Harper recommendations on section 46, including the introduction of an effects test.
Debate is set to resume in the House of Representatives on 23/03/2017, with Treasurer Scott Morrison set to move the amendment to the bill. This amendment can be found on the Bill's homepage and removes the mandatory factors originally provided for in s 46(2).
The proposed amendment also changes the commencement date of the bill from the date of Royal Assent to the date that Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act 2017 commences.

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

Australian Competition and Consumer Commission v Olex Australia Pty Ltd [2017] FCA 222 COMPETITION – controlling supply – market sharing – price fixing – whether there was an arrangement or understanding which contained a cartel provision – whether parties reached the necessary commitment that gave rise to an arrangement or understanding – whether there was a proscribed purpose to control supply, allocate the market and/or fix prices – whether there was an exclusionary provision for the purposes of s 4D of the Competition and Consumer Act 2010 (Cth) – whether the respondents were "in competition with each other" – consideration of no case submission – circumstantial evidence – exclusive dealing "anti-overlap" defence – collective acquisition defence – no contravention of the prohibition on cartel conduct – application dismissed.
COMPETITION – bid rigging – whether there was an arrangement or understanding which contained a bid rigging provision – whether there was a change in the pleaded case in relation to the characterisation of the bidding provision – whether the relevant purpose is in relation to a successful "bid" or successful "party" – resale price maintenance "anti-overlap" defence – no contravention of the prohibition on cartel conduct – application dismissed. Competition and Consumer Act 2010 (Cth) ss 4, 4C, 4D, 4F, 44ZZRB, 44ZZRD, 44ZZRJ, 44ZZRK, 44ZZRR, 44ZZRS, 44ZZRV, 45, 47, 96.

Swishette Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 45
CONSUMER LAW – non-party redress orders – whether the Court has power pursuant to s 239 of the Australian Consumer Law to make an order against a third party - Competition and Consumer Act 2010 (Cth), s 239, 240, 241, 243.

Australian Securities and Investments Commission v Fast Access Finance Pty Ltd (No 2) [2017] FCA 243
CONSUMER LAW – consumer credit – contraventions of the National Consumer Credit Protection Act 2009 (Cth) and the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) – prohibition on engaging in credit without an Australian credit licence – where the business model involved the purported sale and purchase of diamonds, designed so as to conceal the nature of the money-lending transactions – penalty imposed on the company that designed and developed the model – penalty imposed on two franchisees who implemented the model.

Director of Consumer Affairs Victoria v Gibson [2017] FCA 240
CONSUMER LAW – alleged contraventions of ss 18, 21, 29 of the Australian Consumer Law – issues of evidence where respondent does not participate in proceedings – application of s 4 of the Australian Consumer Law – consideration of implied representations – application of federal and state-based Australian Consumer Law. This proceeding concerns alleged conduct of the first respondent, Ms Annabelle Natalie Gibson, in relation to her claims of being diagnosed with brain cancer.

Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 63
CONSUMER LAW – misleading and deceptive conduct. CONSUMER LAW – relief in relation to unfair terms Australian Consumer Law (NSW) s 23 and 24. APPEAL – Civil and Administrative Tribunal (NSW) – Consumer and Commercial Division – Extension of time to appeal question of law – a constructive failure to exercise jurisdiction – insufficient reasons – no evidence – irrelevant considerations – wrong finding of fact – other grounds –- decision not fair and equitable – significant new evidence.

Blue Visions Management Pty Limited v Chidiac [2017] NSWSC 255
AUSTRALIAN CONSUMER LAW – misleading and deceptive conduct – whether representation made in trade or commerce. CONTRACTS – general contractual principles – whether intention to be bound by contract can be inferred from parties conduct – whether employee bound by contract which was not signed. CORPORATIONS – Corporations Act 2001 (Cth), ss 181, 182, 183 – whether improper use of position – whether improper use of information EQUITY – general principles – fiduciary obligations – duty not to pursue personal interests in conflict with those to whom duty is owed – whether employees pursued their personal interests in conflict with those of their employer – whether novation agreement released defendants from the consequences of breach. EQUITY – remedies – Corporations Act 2001 (Cth), s 1317H – calculation of damages or equitable compensation. EQUITY – fiduciary obligations – derivative liability for breach of fiduciary duty – whether company "alter ego" of wrongdoing fiduciary. ESTOPPEL – estoppel by conduct. PRACTICE AND PROCEDURE – pleadings and particulars – whether particulars were sufficient to raise defence of fully informed consent. PRACTICE AND PROCEDURE – pleadings and particulars – whether claim of deceit properly pleaded. EVIDENCE – admissibility of evidence – Evidence Act 1995 (Cth) s 69 – whether documents admissible as business records. TORTS – miscellaneous torts – deceit – whether plaintiff acted in reliance on representation – whether reliance caused the plaintiff loss TORTS – negligence – negligent misrepresentation.

Perpetual Nominees Ltd v McGoldrick & Anor (No 3) [2017] VSC 78
CORPORATIONS — Defendants guaranteed loan to company of which they are directors — Plaintiff claims amount owed under guarantee — Administrators appointed to company under pt 5.3A Corporations Act 2001 (Cth) — Company subsequently wound up and administrators appointed as liquidators — Liquidators commence and complete sale of real property owned by company.
NEGLIGENCE —Defendants claim sale of real property at an undervalue and negligence in conduct of the sale — administrator/liquidator owed a duty of care to avoid causing pure economic loss — Duties of administrators/liquidators — Whether duty owed to guarantors of company debt by administrators/liquidators — Salient features discussed — Mills & Ors v Sheahan [2007] SASC 365; (2007) 99 SASR 357; Brookfield Multiplex Ltd v Owners-Strata Plan No 61288 [2014] HCA 36; (2014) 254 CLR 185 applied — Marsh v Baxter [2015] WASCA 169; (2015) 49 WAR 1 considered.
AGENCY — Whether administrators/liquidators agents of the plaintiff creditor — Medforth v Blake [2000] Ch 86; Bank of Western Australia v Abdul [2012] VSC 222; State Bank of NSW v Chia [2000] NSWSC 552; (2000) 50 NSWLR 587 applied — No agency found.
CONSUMER LAW — Whether unconscionable conduct on the part of the Administrators/Liquidators under s 21 of the Australian Consumer Law ('ACL') — ACL inapplicable as conduct not 'in connexion with' supply of relevant services — no unconscionable conduct either under statutory provisions or under the general law in equity.

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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