Australia: Competition & Consumer Law News – 7 June 2017

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). More...

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...


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.

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Ian Robertson
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