Australia: News in Competition & Consumer Law – 26 April 2017

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

Most Read Contributor in Australia, September 2017

In the media

ACCC to investigate and report on Australian gas markets and market transparency
The ACCC will use its inquiry powers, including its ability to compulsorily acquire information, to increase transparency and address opaqueness in the gas market. The ACCC will provide regular information to the market over the next three years on the supply and pricing of gas under a broad reference from the Federal Government. The first report is due to be released in October 2017 (20 April 2017). More...

Final report for the Review of Australian Consumer Law
The final report for the Review of Australian Consumer Law, conducted by Consumer Affairs Australia and New Zealand (CCANZ), has today been welcomed by Federal Small Business Minister Michael McCormack, who is responsible for consumer affairs (19 April 2017). More... (Report) More...
The report was informed by submissions to the Interim Report and Issues Paper as well as comments received through this website.

Annabelle Gibson and Inkerman Road Nominees Pty Ltd - Court action
The Federal Court of Australia has ordered that Ms Annabelle Natalie Gibson, 25, of Northcote, refrain from making claims, in connection with the development, sale or promotion of health and wellbeing advice. The orders were made after the court declared that Ms Gibson and her company, Inkerman Road Nominees (ACN 164 850 748) - in liquidation - engaged in misleading and deceptive conduct relating to the sale of Ms Gibson's book and app, The Whole Pantry, in contravention of the Australian Consumer Law (ACL) (19 April 2017). More...

Toughen penalties for companies breaching consumer law, report says
Consumer affairs ministers should consider imposing tougher financial penalties on companies that breach the law, a review of the Australian Consumer Law suggests (19 April 2017). More...

Thomas Foods International and irrigators join electricity tender
Major South Australian-based red meat processor Thomas Foods International and Riverland irrigators are part of a joint electricity purchasing group that has won approval to tender for power supply. ACCC Authorisation is sought as the proposed conduct may contain a cartel provision or may have the purpose or effect of substantially lessening competition (18 April 2017). More...

Queensland government urged to support marketing campaign for fair milk prices
The Queensland government has been urged to run a marketing campaign to help consumers make better-informed decisions about the milk they buy. The Agriculture and Environment Committee is considering a Katter's Australian Party bill which would establish criteria and legal protection for voluntary "fair milk price" logos to be placed on containers of milk, and would also set a minimum price to be paid to Queensland dairy farmers to carry a fair milk price logo (16 April 2017). More...

Fifth auction brings total abatement to 189 million tonnes
The fifth Emissions Reduction Fund auction, held on 5-6 April, will contribute a further 11.25 million tonnes of abatement to the overall total. This will be delivered through 31 contracts for a total value of $133 million (13 April 2017). More... (Minister Statement) More...

Productivity Commission report: Consumer Law Enforcement and Administration
Minister for Small Business Michael McCormack, in his capacity as Minister Responsible for Consumer Affairs, has welcomed the Productivity Commission's report into Consumer Law Enforcement and Administration. "The Productivity Commission's report, released today, details its study findings into the administration arrangements behind the Australian Consumer Law," (12 April 2017). More...


Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd [2017] FCA 403
TRADE PRACTICES – misleading or deceptive conduct – packaging and get-up of cosmetic products – different trade marks – market for both products consumers of ethnic Chinese origin – comparison of products' get-up – extent of reputation in both products – whether respondent intentionally adopted features of applicant's get-up.
TRADE PRACTICES – misleading or deceptive conduct – representations on WeChat website and in legal letters as to comparative effectiveness of products, unlawful conduct and threats to sue – whether relevant class of persons would consider that alleged representations were made – whether representations are actionable. Competition and Consumer Act 2010 (Cth) Schedule 2, s 18.

Sola Tube Australia Pty Ltd v Solar Bright International Pty Ltd [2017] FCCA 657
CONSUMER LAW – Misleading or deceptive conduct – whether the unauthorised use of an energy efficiency logo amounted to misleading or deceptive conduct in contravention of ss.18 and 29(1)(a) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) – whether the use of diagrams on websites and marketing brochures would mislead or deceive the ordinary and reasonable class of consumers in contravention of ss.18 and 29(1)(a) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) into believing that the product works as illustrated on those diagrams – whether the use of advertising language on websites and marketing brochures would mislead or deceive the ordinary and reasonable class of consumers in contravention of ss.18 and 29(1)(a) of Schedule 2 to the Competition and Consumer Act 2010 (Cth) into believing that the product works as described – use of energy efficiency logo would be likely to mislead or deceive consumers – use of diagrams and advertising language on websites and marketing brochures would not be likely to mislead or deceive consumers. Competition and Consumer Act 2010 (Cth), s.2, sch.2 – ss.18, 29.

Nyoni v Shire of Kellerberrin [2017] FCAFC 59
TORTS – misfeasance in public office – elements of tort – where local government council chief executive officer made misleading complaint on behalf of council to regulatory authorities about pharmacist's conduct of business with intention to injure pharmacist – where complaint made in context of protracted campaign by officer and council to persuade regulators to take action against pharmacist – whether making of complaint was exercise of power attached to public office – whether officer's targeted malice was misuse of power – whether pharmacist suffered material or actual damage by reason of injury to professional reputation – whether council directly liable by reason of actions of chief executive officer.
CONSUMER LAW – whether local government council's publication of minutes of council meeting conveying allegedly false representations about appellant's business capable of amounting to misleading or deceptive conduct under s 52 of Trade Practices Act 1974 (Cth) – whether council's publication of minutes of meeting in accordance with obligation under Local Government Act 1995 (WA) conduct "in trade or commerce".

Australian Securities and Investments Commission v Kobelt [2017] FCA 387
CONSUMER LAW – penalties to be imposed for a contravention of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and for contraventions of s 29(1) of the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act) - penalty imposed for a single contravention of s 12CB by engaging in a system of conduct which was unconscionable – 92 contraventions of s 29 of the NCCP Act but the contraventions formed part of a course of conduct – consideration of ss 166-7 of the NCCP Act – penalties imposed for 45 contraventions – consideration of the totality principle as applied to civil penalties. Australian Securities and Investments Commission Act 2001 (Cth) ss 12 CB, 12GBA, 12GD(1), Building and Construction Industry Improvement Act 2005 (Cth), Crimes Act 1914 (Cth) ss 4AA, 4K; National Consumer Credit Protection Act 2009 (Cth) ss 5, 6(1), 29, 37, 45, 47, 50, 51, 54, 88, Ch 3, 166, 167; National Credit Code s 5.

Ebadeh-Ahvazi v Namrood [2017] NSWSC 399
CONVEYANCING – contract for sale of land – purported termination by both parties – obligations on vendor to perform works by completion – whether performance required by completion date under contract or time of actual completion – whether vendor complied with obligations – validity of notice to perform – validity of notice to complete – whether vendor engaged in misleading and deceptive conduct – whether deposit should be returned. Competition and Consumer Act 2010 (Cth), Sch 2, s 18, Conveyancing Act 1919 (NSW), ss 55(2A). The defendant further claims that he is entitled to recover the amount of the deposit (and interest) as damages for loss suffered as a result of an alleged repudiation of the contract by the plaintiff, or by conduct said to have been engaged in by the plaintiff in contravention of s 18 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) ("the Australian Consumer Law").

Avadean Pty Ltd -v- Mullany [2017] WADC 50
Lease, Assignment of Lease and Guarantee - Whether Lease and Assignment of Lease illegal and void pursuant to Town Planning and Development Act 1928 (WA) - Severance - Effect of illegality or invalidity - Terms of Guarantee and liability of the Defendants - Mistake - Misleading and deceptive conduct - Turns on own facts.

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.