In the media
ACCC expects to take NBN providers to court over slow
broadband
ACCC chairman Rod Sims told a Senate estimates hearing that the
watchdog was looking into claims of NBN customers paying for speeds
of 100 megabits per second but only being able to connect at less
than 50Mbps. They would either be cases of misleading conduct or
breaches of consumer guarantees (01 June 2017).
More...
Class action brewing on tap contracts
A Melbourne law firm is rallying small brewers to pursue a group
claim against CUB and Lion, alleging their tap contracts with
venues are in breach of competition law. Two brewers who control
nearly 90 per cent [of the market] are allegedly creating tap
contracts and others don't have a level playing field. The
possibility of private litigation has emerged three years and four
months after the ACCC began its own investigation into tap
contracts (01 June 2017).
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ACCC takes action against Geowash car wash
franchisor
The ACCC proceedings will allege that Geowash made false or
misleading representations and engaged in unconscionable conduct in
breach of the Australian Consumer Law, and also failed to comply
with the good faith obligation which is contained in the
Franchising Code of Conduct (31 May 2017).
More...
ACCC releases electricity inquiry issues
paper
The ACCC has today released an issues paper for its inquiry into
retail electricity supply and prices in Queensland, NSW, Victoria,
South Australia, Tasmania, and the ACT. The ACCC is seeking
submissions by the end of June from interested parties (31 May
2017).
More...
Home loan fraud subject to special ASIC inquiry into
mortgage approvals
Loan fraud will be the subject of a special inquiry by the
corporate watchdog to assess how widespread the problem is and
develop strategies for combating fraudulent mortgage lending. Until
recently ASIC was focussed on falsification of details on home loan
applications by mortgage brokers. It is now targeting irresponsible
lending by banks for allegedly underestimating peoples' living
expenses and overstating income (31 May 2017).
More...
Court orders Acquire to pay $4.5 million
penalty
The Federal Court has ordered Acquire Learning and Careers Pty Ltd
(Acquire) to pay penalties of $4.5 million for
engaging in unconscionable conduct, making false or misleading
representations and breaching the unsolicited consumer agreements
provisions in the Australian Consumer Law (ACL)
(30 May 2017).
More... (ABC) More...
ACCC appeals Yazaki Corporation penalty
decision
The ACCC has submitted to the Court that Yazaki should be ordered
to pay a penalty of between $42 million and $55 million, to reflect
both the size of Yazaki's operations and the very serious
nature of its collusive conduct. The ACCC has also appealed an
earlier finding by Justice Besanko that Yazaki's Australian
subsidiary, Australian Arrow Pty Ltd, did not give effect to the
collusive arrangements made by Yazaki in 2003 and 2008 (30 May
2017).
More...
ACCC takes action against NIB
The ACCC has instituted proceedings in the Federal Court against
NIB Health Funds Limited (NIB), alleging it
contravened the Australian Consumer Law by engaging in misleading
or deceptive conduct, unconscionable conduct and making false or
misleading representations. The ACCC alleges that NIB failed to
notify members in advance of its decision to remove certain eye
procedures from its "MediGap Scheme" (MediGap
Change) in 2015 (30 May 2017).
More...
(ABC) More...
Cairns drivers hit by high petrol profits
The average net profit per petrol station in Cairns was around 38
per cent higher than the average net profit across other sites
around Australia in 2015–16, according to a new petrol market
study published by the ACCC today. The report found that the main
reasons for the higher prices in Cairns were higher retail profit
margins on petrol, higher wholesale prices, and higher retail
operating costs per litre (29 May 2017).
More...
Companies improving business practices to avoid
register: NSW
The 10th consumer Complaints Register was released by NSW Fair
Trading, and has highlighted some significant stats and milestones.
The register has encouraged the marketplace to regulate itself,
with multiple businesses engaging with Fair Trading to improve
their complaint handling procedures and undertaking to never again
appear on the register (24 May 2017).
More...
States need to put energy consumers first
He Federal Court has handed down a major decision that will
increase electricity prices for New South Wales customers by around
$3 billion. This reaffirms the Turnbull Government's position
of wanting to abolish the Limited Merits Review
(LMR) process to stop network businesses gaming
the system (24 May 2017).
More...
Cases
Australian Competition and Consumer Commission v Acquire
Learning & Careers Pty Ltd [2017] FCA
602
CONSUMER LAW - contraventions of Australian Consumer Law - false or
misleading representations - misleading or deceptive conduct -
unconscionable conduct - unsolicited consumer agreements -
principles applicable to imposition of a pecuniary penalty,
declarations and injunctive relief - appropriateness of agreed
orders and declarations. Competition and Consumer Act 2010
(Cth); Sch. 2, Australian Consumer Law, ss 18, 21, 29, 24
and 76.
470 St Kilda Road Pty Ltd v Robinson
[2017] FCA 597
CONSUMER LAW – where statutory declaration made in trade and
commerce – where statutory declaration deposed to reasonable
inquiries undertaken – whether representations with respect
to reasonable inquiries untrue – whether statutory
declaration misleading and deceptive – whether applicant
relied on untrue representations – whether apportionable
claims under the Wrongs Act 1958 (Vic).
NEGLIGENCE – whether statutory declaration contained
negligent misstatements.
Competition and Consumer Act 2010 (Cth), Sch 2;
Australian Consumer Law, s 18.
Sutton v BE Australia WD Pty Ltd
(No 3) [2017] NSWSC 689
UNFAIR CONTRACT – ex parte proceedings – claim for
declaratory relief and monetary payments pursuant to s 106(1) and
(5) of the Industrial Relations Act 1996 – whether
the contract or arrangement was unfair, harsh or unconscionable or
against the public interest – transitional provisions –
regard to record of Industrial Court save for evidence objected to
– arrangements constituted contract for purposes of s 106
– no jurisdictional barrier under s 108A the Industrial
Relations Commission Rules 2009 – grounds concern
unfairness regarding termination, bullying and disparagement
– no protection from arbitrary and immediate termination
– termination without notice – contract unfair in
operation – termination likely to and did cause the plaintiff
to suffer hurt, distress and humiliation – no protection from
bullying and harassment – no provision for the timely
resolution of any complaint or grievance – insufficient
evidence to support disparagement ground – contract was
unfair and harsh for the purposes of s 105(1)(a) –
declaratory relief granted – monetary orders – relevant
common law principle regarding notice – additional factors
under s 106 – compensation for distress, stress, damage to
reputation and humiliation – mitigation – settlement
second defendant – avoiding risk of double counting –
interest, costs – directions for further submissions and
evidence.
Pham Global Pty Ltd v Insight Clinical Imaging Pty
Ltd [2017] FCAFC 83
TRADE MARKS – whether owner of the trade mark for the
purposes of ss 27 and 58 of the Trade Marks Act 1995 (Cth)
– construction of the meaning of "applicant" under
the Trade Marks Act 1995 (Cth) - whether there was a valid
assignment of trade mark – whether marks substantially
identical – s 60 ground of opposition – whether use of
trade mark likely to deceive or cause confusion – whether use
of the trade mark would be contrary to law – whether defence
of use of own name in good faith available – whether conduct
was misleading or deceptive, or likely to mislead or deceive
– whether false representations – whether passing off
– cross claim – application for cancellation or
rectification of the Trade Mark Register – leave to appeal
granted – appeals dismissed. Competition and Consumer Act
2010 (Cth), Schedule 2, Australian Consumer Law, ss 18,
29.
Australian Energy Regulator v Australian Competition
Tribunal (No 3) [2017] FCAFC
80
The Court has upheld the applications for judicial review in
respect of the Tribunal's construction of the Rules in relation
to the value of imputation credits (gamma). The Court has otherwise
dismissed the AER's applications.
ADMINISTRATIVE LAW – application for judicial review of
decision of the Australian Competition Tribunal
(Tribunal) reviewing decision of the Australian
Energy Regulator (AER) – nature and scope of
review by the Tribunal – whether the Tribunal erred in its
construction of provisions of the National Gas Law or National Gas
Rules – return on debt – transition between methods of
deciding the return on debt – where the AER did not allow
revision of the service provider's proposal – whether the
Tribunal purported to review a decision of a type that did not fall
within its jurisdiction. Administrative Decisions (Judicial
Review) Act 1977 (Cth) s 3, Sch 3; National Gas Law; National
Gas Rules.
Australian Energy Regulator v Australian Competition
Tribunal (No 2) [2017] FCAFC
79
The Tribunal had set aside the AER's Final Decisions and
remitted the matter to the AER to make the decisions again in
accordance with certain directions.
ADMINISTRATIVE LAW – application for judicial review of
decision of the Australian Competition Tribunal
(Tribunal) reviewing decisions of the Australian
Energy Regulator (AER) – nature and scope of
review by the Tribunal – whether the Tribunal erred in its
construction of provisions in the National Electricity Rules
relating to the determination of the rate of return on debt, the
value of imputation credits and the operating expenditure criteria
– whether the Tribunal allowed the distribution network
service providers to raise matters that were not raised and
maintained by them in submissions to the AER, contrary to s 71O(2)
of the National Electricity Law. Administrative Decisions
(Judicial Review) Act 1977 (Cth) s 3, Sch 3; Competition
and Consumer Act 2010 (Cth) s 103; Competition and
Consumer Regulations 2010 (Cth).
Shabandeh v Netregistry Pty Ltd
[2017] NSWCATAP 116
Consumer claim, destruction of website, orders under section 79N
Fair Trading Act.
The effect of the Decision was to dismiss the applicant's
application for an order that the respondent pay the applicant
$9,791.00. The applicant is now the appellant.
The salient points of the Decision are as follows: The application
form did not set out the legal basis for the appellant's claim
but the Tribunal found that the claim was based upon the
appellant's allegation that the respondent had engaged in
misleading and deceptive conduct in breach of s 18 of the
Australian Consumer Law; The Decision found that the Tribunal had
jurisdiction to hear and determine the dispute pursuant to
jurisdiction granted by the FT Act.
Hera Project Pty Ltd v Bisognin (No
3) [2017] VSC 268
TRADE AND COMMERCE – Australian Consumer Law – Conduct
'in trade or commerce' – Whether representations
concerning a subdivision of a residential property 'in trade or
commerce' – Concrete Constructions (NSW) Pty Ltd v
Nelson [1990] HCA 17; (1990) 169 CLR 594 applied –
O'Brien v Smolonogov (1983) 53 ALR 107 discussed
– Application of the re-enactment presumption.
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.
