Australia: Competition & Consumer Law News – 26 April 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...

Cases

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.

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Authors
Ian Robertson
 
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