Australia: Competition & Consumer Law News – 9 May 2017

Last Updated: 12 May 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2017

In the media

ACCC puts businesses on notice about 'made in' country of origin claims
The ACCC is urging businesses to review their country of origin labels now to ensure they comply with the Australian Consumer Law. In addition to the general ACL obligations not to make false, misleading or deceptive claims, businesses involved in the retail supply of food will also be bound by the Country of Origin Food Labelling Information Standard from 1 July 2018 (04 May 2017). More...

ACCC releases statement of issues on proposed merger between APN Outdoor Group Limited and oOh!media Limited
The ACCC has released a Statement of Issues expressing preliminary concerns about the proposed merger between APN Outdoor Group Limited and oOh!media Limited. The ACCC's preliminary view is that the merger is likely to substantially lessen competition in the out-of-home advertising market. The loss of competition could result in increased prices for advertisers, or lower levels of service, quality, or innovation (04 May 2017). More...

ACCC will not oppose Caltex's proposed acquisition of Milemaker
The ACCC today announced that it has decided not to oppose the proposed acquisition by Caltex of a 'chain of Victorian service stations from Milemaker Petroleum'. This decision followed a Statement of Issues released in March and was described by the ACCC Chairman as a 'difficult decision' because 'competition will be reduced'; the ACCC concluded, however, that that reduction would not be substantia (04 May 2017). More...

ACCC takes action against Ramsay Health Care for alleged anti-competitive conduct
The ACCC has 'instituted proceedings in the Federal Court against Ramsay Health Care Australia Pty Limited (Ramsay) for alleged anti-competitive conduct involving misuse of market power and exclusive dealing in the Coffs Harbour region' (01 May 2017). More...

Banks Refused Permission to Collectively Bargain with Apple over Digital Wallet Technology
The ACCC has issued a "Final Determination" denying a group of Australian banks permission to collectively bargain with Apple and collectively boycott Apple Pay. The decision was issued on 31 March 2017, and had been foreshadowed in a ACCC press release issued in November 2016 that stated that the ACCC was "not currently satisfied that the likely benefits from the proposed conduct outweigh the likely detriments (01 May 2017). More...

Reckitt Benckiser (Australia) Pty Ltd v ACCC [2017] HCASL 86: High Court Upholds Record Fine against Nurofen
In the case of Reckitt Benckiser (Australia) Pty Ltd v ACCC [2017] HCASL 86 (5 April 2017), the High Court has ordered the manufacturer of Nurofen to pay a $6 million fine for misleading consumers with its specific pain relief range, after the High Court rejected its latest appeal (28 April 2017). More...

Simplifying House Prices for Buyers
New underquoting laws come into effect on 1 May that will make house sale prices clearer and more transparent for would-be buyers. The new laws include requirements for how estate agents estimate and advertise selling prices, making sure prospective buyers are given clear information about comparable and recent property sales in the same area (29 April 2017). More...

ACCC takes action against Murray Goulburn
The ACCC has instituted proceedings in the Federal Court against Australia's largest milk processor, Murray Goulburn Cooperative Co. Limited (Murray Goulburn), alleging it engaged in unconscionable conduct and made false or misleading representations in contravention of the Australian Consumer Law. The ACCC also alleges that former managing director Gary Helou and former chief financial officer Bradley Hingle were knowingly concerned in Murray Goulburn's conduct (28 April 2017). More...

New stocking density for egg industry signed into law
Egg farmers gain certainty for free range while Choice cries foul over the new law. Any eggs labelled "free range" will require a stocking density outdoors of 10,000 hens or fewer per hectare. Consumer group Choice said it was disappointed with the new standards and vowed to maintain its recommendation to "boycott" densely stocked farmed eggs at the supermarkets (27 April 2017). More...

Telstra's compliance with Structural Separation Undertaking improving
Telstra's compliance with its Structural Separation Undertaking (SSU) has continued to improve reports the Australian Competition and Consumer Commission in a report tabled in Parliament today. It also requires Telstra to not use wholesale customer information or migration processes to favour its own retail business during the transition to the NBN (27 April 2017). More...

Former ACCC Chairman: nothing to fear from Amazon
Former ACCC Chairman, Graeme Samuel, has dismissed claims that Amazon's entry into the Australian market would result in higher prices for Australian consumers, noting the entry of major international competitors into other markets in Australia has not driven out local competition (26 April 2017). More...

In practice and courts, published reports

ACCC Country of Origin Food Labelling update
On 1 July 2016, the Country of Origin Food Labelling Information Standard 2016 (Standard) commenced under the Australian Consumer Law. The Standard introduces new labelling requirements for most food sold in stores, markets, online and in vending machines. Businesses have until 30 June 2018 to transition to the new labels.
The ACCC has produced Country of origin food labelling guidance to assist businesses with the new Standard. Businesses have until 30 June 2018 to transition to the new labels.
The ACCC has also updated guidance for businesses making country of origin claims under the Australian Consumer Law. If a business is able to satisfy certain criteria they will have an automatic defence against an allegation that the claim is false, misleading or deceptive.

Imprisonment for Hard Core Cartel Participation: A Sanction with Considerable Potential
Pascal Wirz, (2016) 28(2) Bond Law Review 89
To deter hard core cartel activity, the sanctions imposed on cartelists must produce sufficient disutility to outweigh what the cartelists expect to gain from cartel participation. More...

Cases

Australian Competition and Consumer Commission v The Joystick Company Pty Ltd [2017] FCA 397
TRADE PRACTICES – misleading and deceptive conduct – false and misleading representations as to the health effects and benefits of e-cigarette products – imposition of pecuniary penalty – principles relevant to the imposition of a penalty pursuant to s 224 of the Australian Consumer Law – agreed penalty – consideration of whether agreed penalty is within the permissible range of penalties – declarations – compliance orders – injunctions – corrective notices. Australian Consumer Law ss 18, 29, 29(1)(a), 29(1)(g), 33, 224, 224(1)(a)(ii), 224(1)(e), 224(2), 232(1)(e), 246. Competition and Consumer Act 2010 Schedule 2.

Australian Competition and Consumer Commission v Burden [2017] FCA 399
TRADE PRACTICES – misleading and deceptive conduct – false and misleading representations as to the health effects and benefits of e-cigarette products – imposition of pecuniary penalty – principles relevant to the imposition of a penalty pursuant to s 224 of the Australian Consumer Law – agreed penalty – consideration of whether agreed penalty is within the permissible range of penalties – declarations – compliance orders – injunctions – corrective notices.
Australian Consumer Law Chapter 2, Chapter 3, Chapter 4, Part 3-1, Part 5-2, ss 18, 29, 29(1)(a), 33, 224, 224(1)(a)(ii), 224(1)(e), 224(2), 224(3), 224(4)(b), 232, 232(1)(a), 232(1)(e), 232(4)(a), 246, 246(2)(b)(i) and (ii). Companies Act 1993 (NZ) ss 248(1)(c)(i), 250. Competition and Consumer Act 2010 (Cth) Schedule 2, ss 5(1)(g), 131(1). Corporations Act 2001 (Cth).
From at least August 2015 to June 2016, the second respondent, Elusion Australia Limited (NZBN 942 903 115 8060) (In Liquidation) (Elusion), in trade or commerce:
(c) engaged in conduct that is liable to mislead the public as to the nature or characteristics of goods, in contravention of s 33 of the ACL, by representing to consumers on its website (Elusion website) that the e-cigarette products supplied by it did not contain harmful chemicals, cancer-causing chemicals or carcinogens, when that was not the case.

Australian Competition and Consumer Commission v Social-Lites Pty Ltd [2017] FCA 398
TRADE PRACTICES – misleading and deceptive conduct – false and misleading representations as to the health effects and benefits of e-cigarette products – imposition of pecuniary penalty – principles relevant to the imposition of a penalty pursuant to s 224 of the Australian Consumer Law – agreed penalty – consideration of whether agreed penalty is within the permissible range of penalties – declarations – compliance orders – injunctions – corrective notices. Australian Consumer Law Chapter 2, Chapter 3, Chapter 5, Part 2-1, Part 5-2, ss 18, 29, 29(1)(a), 33, 224, 224(1)(a)(ii), 224(1)(e), 224(2), 224(3), 224(4)(b), 232, 232(1)(a), 232(4)(a), 232(1)(e), 233, 246, 246(2)(b), 246(2)(d), 247(2)(b). Competition and Consumer Act 2010 (Cth) Schedule 2.

Cam & Bear Pty Ltd v McGoldrick [2016] NSWSC 1894
NEGLIGENCE – breach of duty by auditor – discussion of duty of auditor to self-managed superannuation fund – causation – breach of duty did not occasion loss – action dismissed; TRADE PRACTICES – misleading or deceptive conduct – audit certificate represents fair state of affairs reported in financial statements – misleading and/or deceptive – no loss occasioned by misrepresentation.

Bullhead Pty Ltd v Brickmakers Place & Ors [2017] VSC 206
TRUSTS AND TRUSTEES – Unit Trust – Interpretation of Trust Deed – Breach of Trust Deed – Units improperly issued in breach of Trust Deed and Unitholders Agreement – No informed consent or agreement for issue of discounted units – No basis to depart from strict terms of Trust Deed.
EQUITY – Breach of fiduciary duty – No power or basis to issue units at a discount – Knowing receipt of trust property.
EQUITY – Laches and acquiescence – Leave to amend defence refused as defence will fail - Lack of clean hands – Unconscionable for defendants to derive benefit from their own wrongdoing.
AGREEMENT – Whether claims compromised by Finalisation Agreement – Whether concluded agreement reached.
ESTOPPEL – Equitable estoppel – Representation as to future conduct – Assumption induced by or arising out of conduct – Defendant suffered detriment by relying on assumption – Plaintiff estopped.
CIVIL PROCEDURE – Limitation periods – Limitation of Actions Act 1958 (Vic), s 21(1)(a) – Issue of discounted units fraudulent – Claims not statute barred.
TRADE PRACTICES – Misleading or deceptive conduct – Representation as to basis on which unitholders would hold units – Meaning conveyed was misleading or deceptive – Fair Trading Act 1999, s 9 (Vic).

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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