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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Robertson
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.