Australia: Competition & Consumer Law News – 21 June 2017

Last Updated: 25 June 2017
Article by Howard Rapke and Ian Robertson

Most Read Contributor in Australia, December 2017

In the media

ACCC takes action against Thermomix
The ACCC alleges that Thermomix misled customers about their consumer guarantee rights, failed to comply with mandatory reporting requirements for injuries arising from the use of the appliances, made false representations and engaged in misleading conduct regarding the safety of the TM31 model, and made false and misleading statements about its 2014 recall (16 June 2017). More...

High Court unanimously dismisses air cargo appeals
The High Court today unanimously dismissed the appeals from Air New Zealand and PT Garuda Indonesia Ltd. The principal issue on appeal was whether there was a market "in Australia" for the air cargo services for which the airlines competed for the purposes of the Trade Practices Act 1974 (Cth). The High Court's judgment summary states that: 'The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. View judgment. See High Court case page (14 June 2017). More...

Petrol prices in Brisbane higher than Sydney
Brisbane residents are paying more for fuel than people in Sydney, Perth, Adelaide and Melbourne — and the RACQ says there is no good reason for it. The ACCC is examining these high retail prices, margins and profits in Brisbane and will release its findings in a separate short, dedicated report, which it intends to release in late-July," an ACCC statement said (09 June 2017). More...

Labor flags plan to crack down on non-compete clauses for employees
Andrew Leigh, the shadow assistant treasurer, says Australia is experiencing a rise in companies using their market power for anti-competitive reasons, with complaints to the competition watchdog, of misleading and deceptive conduct, up one third over the last three years. He also raises concerns about the growing number of non-compete clauses in employment contracts which prevent employees from working for a competitor, starting a competing firm, or poaching customers from old employers (07 June 2017). More... See Shadow Assistant Treasurer, Andrew Leigh MP's, speech at Murdoch University entitled 'A Few Big Firms', is now available online. More...

Lumo Energy pays penalty for alleged energy offer misrepresentations
Energy retailer Lumo Energy Australia Pty Ltd (Lumo) has paid a penalty of $10,800. The ACCC issued the infringement notice because it had reasonable grounds to believe that Lumo had contravened the Australian Consumer Law by making a false or misleading representation about energy discounts (06 June 2017). More...

Cartels caught ripping off Australian consumers should be hit with bigger fines
The ACCC is going after larger fines from companies for cartel conduct that costs the Australian consumer. The difficulty is bringing Australian penalties into line with international standards, to be great enough to deter this kind of activity, often perpetrated by companies overseas. The significance of this latest push by the regulator has been highlighted by a recent case where the Federal Court fined a Japanese manufacturer, Yazaki, A$9.5 million for a cartel involving car parts (02 June 2017). More...

In practice and courts, published reports

Electricity supply & prices inquiry update
On 31 May 2017 the ACCC released an issues paper concerning its inquiry into the retail supply of electricity and the competitiveness of retail electricity markets in the National Electricity Market (Inquiry). Submissions are due by 30 June 2017. A preliminary report is now due to the Treasurer by 27 September 2017 and a final report by 30 June 2018. More...

National Electricity Market Energy Review - final report released
Dr Alan Finkel presented the Final Report of the Review to the Council of Australian Governments (COAG) Leaders' meeting on 9 June 2017. See specific details of the report here. More...

Normative justifications for cartel criminalisation in the UK
Andreas Stephan's new paper examining the normative justifications for cartel criminalisation is highly relevant to Australian competition law enforcement. Australia has criminalised cartels since 2009 but has yet to charge any individuals for cartel conduct. More...


Air New Zealand Ltd v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2017] HCA 21
Appeal dismissed with costs. Trade practices – Restrictive trade practices – Price fixing – Market identification – Location of market – Meaning of market "in Australia" – Where airlines competed to supply unidirectional air cargo services from ports of origin outside Australia to destination ports within Australia – Where airlines arrived at understanding to impose various surcharges and fees for supply of air cargo services – Whether market for air cargo services "in Australia" for purposes of Trade Practices Act 1974 (Cth). Trade practices – Restrictive trade practices – Price fixing – Foreign state compulsion – Where airlines contravened s 45 of Trade Practices Act 1974 (Cth) – Whether conduct compelled by foreign law or foreign regulator's administrative practices.
Statutory interpretation – Inconsistency – Where s 13(b) of Air Navigation Act 1920 (Cth) required airlines to comply with "agreement or arrangement" – Where Australia-Indonesia Air Services Agreement "agreement or arrangement" within meaning of ss 12(2) and 13(b) of Air Navigation Act – Where Australia-Indonesia Air Services Agreement required agreement between international airlines on minimum tariffs – Where ss 45 and 45A of Trade Practices Act 1974 (Cth) prohibited arriving at understandings concerning prices with competitors – Whether ss 12 and 13 of Air Navigation Act inconsistent with ss 45 and 45A of Trade Practices Act such that latter did not apply to contravening conduct. Words and phrases – "competition", "foreign state compulsion", "market identification", "market in Australia", "otherwise competitive with", "practically and operatively inconsistent", " price fixing ", "rivalrous behaviour", "substitutability", "supply and demand".

Hi-Rise Access Pty Ltd v Standards Australia Limited [2017] FCA 604
CONSUMER LAW – Misleading or deceptive conduct –knowledge to be imputed to the target audience – whether the impugned statements conveyed the representations alleged – whether representations of fact or opinion – whether representations "in trade or commerce" – principles relevant to conduct "in trade or commerce" – whether activities of peak Australian Standards body in developing, publishing and promoting Australian Standards is "in trade or commerce"– conclusion that the relevant activities are not "in trade or commerce" - Competition and Consumer Act 2010 (Cth); Sch 2, Australian Consumer Law; Trade Practices Act 1974 (Cth).

AAP Engineering Pty Ltd v Fernlog Pty Ltd [2017] NSWDC 141
Commercial lease – alleged breach by lessee - applicable principles of construction – restitutionary claim – conventional estoppel – whether electricity and water usage "separately metered" within lease - Australian Consumer Law. Under this Cross-Claim the defendant/cross-claimant claims that it is entitled to: (a) The repayment of moneys which it paid to the plaintiff as a contribution towards electricity bills on the basis of misleading or deceptive conduct in breach of Section 18 of the Australian Consumer Law by the plaintiff to the effect that the proper utility Authorities had issued charges for electricity services connected to the Premises the subject of the Lease, and that the Premises the subject of the Lease were separately metered. The amount claimed is $110,000.

SW Investments NSW Pty Ltd v 16 Boondilla Pty Ltd [2017] NSWSC 762
CONSUMER LAW – misleading or deceptive conduct –agreements executed for purchase of share of property– money paid towards purchase – inaccurate and incomplete explanation of transaction given by defendant to plaintiff – failure to disclose true nature of transaction – where plaintiff had poor command of English and relied on defendant's explanation of documents – agreements declared void – orders made requiring defendants to compensate plaintiff for loss.

Fairbank's Selected Seed Co Pty Ltd v Amar Produce Pty Ltd [2017] VSCA 139
TRADE PRACTICES – Misleading or deceptive conduct – Sale of goods – Representations –Reliance – Oral representations as to suitability of seeds – Whether representations made – Whether relied on – Findings of fact – No error – Appeal dismissed – Trade Practices Act 1974 (Cth) ss 52, 53(c).

Boogs v Missen (Civil Claims) [2017] VCAT 835
Private sale of a horse – transaction not occurring "in trade or commerce" – horse not "goods which it is in the course of the seller's business to supply" – significant misrepresentations made by the seller which induced the purchaser to enter the transaction to her detriment – consumer guarantee under s 54 of the Australian Consumer Law inapplicable – no implied warranty under s19 of the Goods Act 1958 – Australian Consumer Law and Fair Trading Act 2012 sections 184(1), 184(2)(b)(ii), 184(2)(d), 184(2)(e), 184(2)(g) – negligence in a consumer and trader dispute – restitution – refund – rescission.

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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