In the media
Businesses lost an average of $10,000 to scams in
2016
Nearly 6000 businesses reported being targeted by scams
in 2016 according to the Australian Competition and Consumer
Commission's
Targeting Scams report, with losses totalling around
$3.8million, an increase of almost 31 per cent (19 May 2017).
More...
ACCC chairman Rod Sims to turn blowtorch on the Big 4
banks
The ACCC chairman says that its unprecedented new powers
to probe and expose unexplained rates hikes could embarrass
Australia's big banks into finally doing the right thing for
lenders. Mr Sims said the ACCC did not have the power to set price
but could pursue through the courts anti-competitive or price
fixing behaviour (19 May 2017).
More...
Harvey Norman Extended Warranty Providers face ACCC
Court Enforceable Undertaking
The Australian Competition and Consumer Commission
(ACCC) has accepted court enforceable undertakings
from Domestic General Services Pty Ltd and Yoogalu Pty Ltd (part of
the Harvey Norman group of companies) following an industry-wide
review (18 May 2017). More...
United Dairyfarmers of Victoria gets good oil on unfair
processor dealings
The ACCC agricultural commissioner Mick Keogh said the
investigation had not reached a point where it could make a
decision on milk swaps deals yet, but he said reports of this had
come mostly from other dairy states and it was allegedly evident in
Victoria as well. This included the balance of power and allocation
of risk as well as the timing of price announcements, transparency
and collective bargaining (16 May 2017).
More...
ACCC v Yazaki Corporation (No 3)
[2017] FCA 465: Toyota Supplier Fined for Collusion
In the case of ACCC v Yazaki Corporation (No 3)
[2017] FCA 465 (9 May 2017), the Federal Court has imposed
penalties against Japanese company, Yazaki Corporation, for
engaging in collusive conduct with a competitor when supplying wire
harnesses to Toyota Motor Corporation (16 May 2017). More...
Insurers give evidence during ESL public inquiry
NSW's largest insurers have given evidence and
answered questions on how they will ensure customers won't be
overcharged and will get the savings they are entitled to, when
emergency services funding is removed from NSW home insurance
policies on 1 July 2017. Penalties up to $10 million may apply to
insurers who charge unreasonably high prices or engage in false or
misleading conduct (16 May 2017).
More...
Retrial granted over Cascade Coal payment to Eddie
Obeid's family
An investor who lost $8 million in a mining company
connected to former NSW Labor minister Eddie Obeid has been granted
a retrial of his case against a company director. In today's
appeal judgment, Justices John Gilmour and Richard White ordered a
retrial of his misleading and deceptive conduct claim against Mr
Duncan (16 May 2017).
More...
Yellow Pages has been caught out over automatic renewals
for business customers
Australia's publisher of Yellow Pages and White
Pages, Sensis, has admitted it may have breached consumer laws by
automatically renewing 12-month customer contracts without clearly
telling them, and may have breached legislation on "misleading
or deceptive conduct" and "false or misleading
representations" (12 May 2017).
More...
E-cigarette companies to pay penalties
The Federal Court has ordered three online e-cigarette
retailers The Joystick Company Pty Ltd, Social-Lites Pty Ltd and
Elusion Australia Limited (in liquidation) to pay penalties for
breaching the Australian Consumer Law (ACL) (08
May 2017).
More...
Faith in free markets dependent on stronger Competition
and Consumer Act and high penalties for deterrence
Mr Sims said in essence, anti-competitive conduct is
profit-maximising for firms, particularly those with a degree of
market power. Mr Sims concluded by saying that to achieve
deterrence, the penalties imposed by the Courts under the
Competition and Consumer Act need to be many times higher than they
are now for larger firms (06 May 2017).
More...
Ramsay Health Care: ACCC Takes Action over Alleged Abuse
of Market Power
The Australian Competition and Consumer Commission
(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 (NSW) region (05 May 2017). More...
In practice and courts, published reports
Penalty units increasing
Penalty units are set to increase from their current
value of $180 to $210 from 1 July 2017. This follows recent penalty
unit increases in 2012 ($110 to $170) and 2015 ($170 to
$180).
The change was effected by the Crimes Amendment (Penalty Unit)
Act 2017 (Act), passed by Federal Parliament on 11
May 2017.
Most substantive offences in the CCA (which includes the
Australian Consumer Law) are not set by reference to penalty units.
The increase will, however, result in an increase to the amounts
payable associated with:
penalties attaching to infringement notices under section 134C for
breaches of various provisions of the Australian Consumer Law;
and
a number of procedural offences, including a refusal or failure to
comply with a request for information, documents or evidence issued
by the ACCC, or giving false or misleading information or evidence
in response to such a notice, under section 155. Source: http://incompetition.com.au/
Fuel price board regulatory reform in Queensland
Under the proposed model, all fuel retailers must show
only the full price of fuel available to all
motorists, instead of displaying potentially misleading or
confusing prices. The proposed start date for the change is 1
January 2018.
The proposed regulation (the Fair Trading (Fuel Price Board)
Regulation 2017) will apply in addition to existing
requirements under the Australian Consumer Law. The
regulation's based on existing laws in South Australia and
Victoria. Submissions close 29 May 2017.
More...
The Big Chill"? A Comparative Analysis of
Effects-Based Tests for Misuse of Market Power' (2017)
Katharine's Kemp's new article on misuse of
market power is now available as an advance copy from the UNSW Law
Journal.
More...
Cases
Addenbrooke Pty Limited v Duncan (No 2)
[2017] FCAFC 76
TRADE AND COMMERCE – appeal from the dismissal of a
claim that the respondents had engaged in misleading or deceptive
conduct – claim based on positive representations and, as
against the first respondent, on the nondisclosure of certain
matters – held, by majority, that trial Judge had not dealt
with the whole of the appellant's misleading or deceptive
conduct case against the first respondent and, further, that it was
not possible for the Full Court to determine the whole claim on the
basis of the findings made by the trial Judge.
TRADE AND COMMERCE – trial Judge's finding that the
appellant had not proved that it had relied on the positive
misrepresentations was not conclusive of the whole of the
misleading or deceptive conduct claim given that it included a
claim of nondisclosure – held, by majority, that there should
be a retrial of this claim before a different Judge.
TRADE AND COMMERCE – appeal against the dismissal of the
appellant's claim that the first respondent had engaged in
unconscionable conduct upheld for the same reasons.
TRADE AND COMMERCE – appeal against dismissal of the claim
that the first respondent was liable as an accessory to the
misleading or deceptive or unconscionable conduct of another
respondent – the appellant's claim against that
respondent, had, by consent, been dismissed before the trial
– trial Judge did not deal with the contention of the first
respondent that the dismissal meant that the appellant was estopped
from pursuing the accessorial liability claim – held
appropriate for this issue to be determined in the retrial.
EQUITY – claim that first respondent had knowingly assisted
in the breach of a constructive trust said to have arisen when the
appellant paid monies in compliance with the share subscription
agreement said to have been induced by the alleged misleading or
deceptive conduct – held that the constructive trust did not
arise.
NEGLIGENCE – appellant's claim that second and third
respondents had breached a duty of care – trial Judge did not
determine this claim – consideration of whether appellant and
second respondent were in a continuing relationship of client and
investment advisor – held that the respondents did not owe
the duty of care alleged.
TRUSTS AND TRUSTEES – claim that the third respondent had
breached a trust – claim not determined by trial Judge
– held that a trust did not arise.
EVIDENCE – appeal against evidence ruling of the trial Judge
– consideration of the Telecommunications (Interception
and Access) Act 1979 (Cth) – appeal ground dismissed
– Judge did not err in that a transcript of the intercepted
communication was inadmissible.
Australian Competition and Consumer Commission v Australian
Institute of Professional Education Pty Ltd
(in liq) [2017] FCA 521
CORPORATIONS – application for leave to proceed
against a company in liquidation under s 500 of the
Corporations Act 2001 (Cth) – proceedings alleging
misleading, deceptive and unconscionable conduct against vocational
education provider – principles applicable to exercise of
discretion to grant leave to proceed – whether proceedings
should remain stayed pending reconciliation of advance payments
made to the company –whether public interest met by potential
declarations in materially similar proceedings – where relief
sought includes refund of substantial monies paid from public
revenue and affects potential liabilities of numerous persons
– where significant public interest in matter proceeding
outweighs detriment to creditors.
CONSUMER LAW – representative case based on system of
conduct or pattern of behaviour – where limited number of
complainants – public interest in determination and
enforcement of the standards prescribed by the Australian Consumer
Law.
Competition and Consumer Act 2010 (Cth), sch 2, ss 18,
21, 29(1), 224, 239, 232, 246(2); Corporations Act 2001
(Cth), ss 471B, 500.
GAIN Capital UK Limited v Citigroup Inc
(No 4) [2017] FCA 519
TRADE MARKS – appeal from decision of Registrar of
Trade Marks to refuse application to register appellant's trade
marks – whether appellant's trade marks are substantially
identical with, or deceptively similar to, respondent's
registered trade marks in respect of similar services or closely
related goods – whether respondent's registered trade
marks had acquired a reputation in Australia – whether
because of that reputation appellant's trade marks would be
likely to deceive or cause confusion – whether the appellant
intended to use or authorise the use of its trade marks –
appeal allowed - Trade Marks Act 1995 (Cth) ss 7(1), 10,
44, 59, 60.
Toucha Pty Ltd v Thomas Taylor (Bowls) Limited
[2017] FCA 514
TRADE PRACTICES – misleading or deceptive conduct
under s 51A and 52 of Trade Practices Act 1974 (Cth)
– accessorial liability under s 75B of the Act – where
applicant and first respondent entered into distribution agreement
– where second respondent was managing director of first
respondent – whether respondents represented to applicant
that it would enter into new distribution agreement with applicant
– alleged representations not established – application
dismissed. Trade Practices Act 1974 (Cth) ss 51A, 52, 75B,
87.
Colin R Price Associates Pty Ltd v Four Oaks Pty
Ltd [2017] FCAFC 75
TRADE PRACTICES – unconscionable conduct –
director of unit holder under significant financial and emotional
pressure – where document in effect required unitholder to
give up its right to share in the proceeds of the project to pay
for cost overruns – whether finding of unconscionable conduct
should have been made – whether a claim of accessorial
liability was sufficiently made and pressed – whether
appropriate to make findings of accessorial liability on
appeal.
TRADE PRACTICES – misleading or deceptive conduct –
alleged representation that builder would be paid the cost of all
materials and labour plus a margin of 15% – whether finding
of misleading or deceptive conduct should have been made.
TRUSTS AND TRUSTEES – unit trust for property development
project – whether claims against other beneficiaries
sufficiently pleaded – whether beneficiary may bring
proceedings in its own right – avoiding a multiplicity of
proceedings – proper operation of s 22 of the Federal
Court of Australia Act 1976 (Cth) – whether orders
should have been made against all respondents – whether there
was sufficient evidence of an amount paid by the trustee –
whether any such amount was a proper payment for the purposes of
the trust.
CORPORATIONS – agency – authority of single director
to bind a company which has more than one director – whether
finding that director did not have implied or ostensible authority
should have been made.
PRACTICE AND PROCEDURE – evidence – whether it was
appropriate to permit the parties to adduce further evidence after
judgment on separate questions.
Casenote: ACCC v Yazaki Corporation (No
2)
[2015] FCA 1304 (Federal Court of Australia, South
Australian Registry)
[2017] FCA 465 (Penalties)
Claims: Cartel conduct (market sharing and price fixing)
The Federal Court found that Yazaki Corporation engaged in
collusive conduct with its competitor when supplying wire harnesses
to Toyota in Australia. The conduct took place in 2003 and 2008 and
breached the exclusionary conduct provisions of the CCA and the
Competition Code of Victoria. Penalty Penalties of $9.5m plus costs
were awarded on 9 May 2017.
Australian Competition and Consumer Commission v Yazaki
Corporation (No 3) [2017] FCA
465
TRADE PRACTICES – Consideration of s 76 of the
Competition and Consumer Act 2010 (Act) and appropriate
penalty or penalties in respect of contraventions of s 45(2)
– where contravener engaged in cartel conduct related to the
supply of automobile parts – determination of maximum penalty
– where parties have not sought to prove the value of the
benefit reasonably attributable to the contraventions – where
dispute as to the amount of annual turnover attributable to the
contravener.
TRADE PRACTICES – Consideration of how many contraventions
are subject to the maximum penalty – whether contraventions
are to be considered as one act within s 76(1A)(b) of the Act
– whether the contraventions are to be considered part of the
same conduct within s 76(3) of the Act – where conduct can be
divided into two broad categories of conduct with different
qualities – where pecuniary penalty for the second course of
conduct significantly lower to reflect degree of connection between
all of the conduct.
STATUTORY INTERPRETATION – Consideration of term
"enterprise" in s 76(5)(d) of the Act – where most
natural meaning of the term 'enterprise' is business
– whether supplies made by a subsidiary are made in
connection with a business carried on by the contravener for the
purposes of determining "annual turnover" in s 76(5) of
the Act.
PRACTICE AND PROCEDURE – Where the covert cartel conduct was
deliberate, sophisticated and devious – where only limited
conduct connected to Australia – where conduct nonetheless
bore upon substantial financial transactions between substantial
corporations in Australia – where no previous contraventions
of the Act – where no suggestion contravener voluntarily
undertook compliance training programs – where it is unclear
whether punishment imposed in foreign jurisdiction related to
conduct the subject of the Australian proceedings.
Guirguis Pty Ltd v Michel's Patisserie System Pty
Ltd [2017] QCA 083
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND
CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION –
MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS –
FALSE REPRESENTATIONS GENERALLY – where the first respondent
granted a franchise to the first appellant to operate a
"Michel's Patisserie" business in Townsville –
where the second appellants guaranteed the first appellant's
obligations under the franchise agreement – where the
appellants claim they suffered loss and damage by entering into the
agreements because of misleading conduct arising out of
misrepresentations made and omissions to disclose certain events
– where those representations were not included in a Deed of
Prior Representations – whether the pleaded representations
had been made – whether the pleaded representations should be
characterised as "conduct that is misleading or deceptive or
is likely to mislead or deceive" – whether a
non-disclosure amounted to misleading conduct in the circumstances
– whether the representations not included in the Deed of
Prior Representations could later be relied upon.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES
– INTERFERENCE WITH JUDGE'S FINDINGS OF FACT –
FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON
CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE
CLEARLY WRONG – where the primary judge made findings about
credibility, and did so with reference to only part of the evidence
– where the primary judge failed to take into account other
evidence of reliance – where the primary judge erroneously
concluded that the respondents were not obligated to disclose any
of the events alleged by the appellant – where the primary
judge made no findings about which, if any, of the representations
had been made and whether those representations, or any of them,
should be characterised as misleading – whether a retrial
should be ordered.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND –
APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE
– WHEN GRANTED – where the appeal succeeds on questions
of law – where the error of law was made by the primary judge
to which no party contributed – whether indemnity
certificates should be granted under the Appeal Costs Fund Act.
Papale v Wilmar Sugar Australia Ltd
[2017] QSC 072
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES –
CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION
OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – IMPLIED TERMS
– GENERALLY – where the plaintiffs contracted with the
defendant miller to sell sugar cane for processing and export
– where the market exporter could not meet supply commitments
and was required to purchase further supply – where the
defendant and market exporter agreed on a basis of distribution of
the costs of increased supply amongst the plaintiffs – where
those costs were passed onto the plaintiffs by the defendant
– whether the defendant's conduct was in breach of its
agreements with the plaintiffs – whether the defendant's
conduct was in breach of an implied term of good faith.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER
PROTECTION LEGISLATION – CONSUMER PROTECTION –
UNCONSCIONABLE CONDUCT – GENERALLY – whether the
defendant engaged in unconscionable conduct in passing on the costs
to the plaintiffs under their agreements.
Konstandellos Ors v Harplex Pty Ltd Anor
[2017] VSC 183
CONTRACT – Question of enforceability of judgment
debt by the first defendant against the plaintiffs – Nature
of agreement – Whether agreement between the plaintiffs and
the first defendant enforceable – Extent to which extrinsic
evidence is admissible as to the terms of agreement – Whether
or not payment discharged the plaintiffs' debt in full –
No release of the balance of the judgment debt was intended –
Part payment not good consideration for release of full amount of
judgment debt.
CONTRACT – Effect of settlement agreement reached between
the first defendant and fourth plaintiff – Plaintiffs jointly
and severally liable for judgment debt – No evidence about
the terms of the settlement agreement – Release of a single
debtor releases all other joint debtors – Settlement
agreement found to constitute a release of all plaintiffs –
Associated Retailers Ltd v Toys Unlimited Pty Ltd and ors
[2011] VSC 297; Walker v Bowry [1924] HCA 28; (1924) 35
CLR 48; Pollack v National Australia Bank [2002] FCAFC 55
referred to and followed.
TRADE PRACTICES – Whether first defendant engaged in
misleading and deceptive conduct – Terms and scope of
retainer – Whether solicitor acted in trade or commerce
– Section 18 Australian Consumer Law – Dual Homes
Pty Ltd v Moores Legal Pty Ltd and anor (2016) 306 FLR 227 and
LT King Pty Ltd and anor v Besser and anor [2002] VSC 354;
(2002) 172 FLR 140 referred to and followed.
NEGLIGENCE – Terms of retainer between plaintiffs and their
solicitors – Whether there was a breach of retainer and/or
duty of care on the part of solicitors.
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.