Australia: Competition & Consumer Law News – 5 July 2017

In the media

The Sarain Pty Ltd (previously t/as Ray White Werribee) - Commencement of action
Consumer Affairs Victoria has applied to the Victorian Civil and Administrative Tribunal to hold an inquiry in relation to The Sarain Pty Ltd (ACN: 143 731 006) and its director, Surinder Sarain, alleging the company and Mr Sarain contravened the Estate Agents Act 1980 when the company was trading as Ray White Werribeeain un-competitve sale pricing (28 June 2017). More...

Petrol prices increased during the March quarter but fuel price apps can help motorists
The ACCCs tenth quarterly report on the Australian petroleum industry has found that the quarterly average price for petrol in the March quarter 2017 was 129.1 cents per litre (cpl), which is the highest since the September quarter 2015 (133.2 cpl). The ACCC believes that the increase in margins in recent quarters cannot be adequately explained by an increase in regulatory and compliance costs and petrol retail margins are currently higher than we think they should be (30 June 2017). More...

Court sentences online electronics store operator to three months imprisonment following ACCC contempt action
The Federal Court has sentenced Dhruv Chopra, the former operator of online electronics stores Electronic Bazaar and Dream Kart, to three months imprisonment for failing to comply with court orders made against him in May 2015, following ACCC action for contempt of court. The Court ordered Mr Chopra to serve one month of the sentence immediately with the remainder suspended on condition that for a period of five years he stop making false or misleading representations online about consumers' refund and warranty rights (28 June 2017). More...

Court finds Get Qualified Australia was misleading and unconscionable
The Federal Court has found that Get Qualified Australia Pty Ltd made false or misleading representations and engaged in unconscionable conduct in its supply of services to consumers seeking recognition of their prior learning to gain qualifications, in contravention of the Australian Consumer Law (27 June 2017). More...

ACCC won't allow tobacco companies to act together
The ACCC is denying authorisation to British American Tobacco, Imperial Tobacco, and Philip Morris to jointly cease supplying retailers or wholesalers they consider to be supplying illicit tobacco. This kind of interaction between all of the major competitors raises competition concerns, and the ACCC doesn't consider that there would be a net public benefit in giving the three dominant tobacco companies immunity for information sharing and joint boycotts of retailers (23 June 2017). More...

ACCC 2015-16 Water Monitoring Report shows rural water sector adapting to change
The ACCC's seventh annual Water Monitoring Report, covering 2015-16, shows the effects of structural changes in the Murray-Darling Basin rural water sector on regulated charges and terminations, transformations, and trades. Customers are using market mechanisms in innovative ways to adjust their water holdings and access to infrastructure, signalling greater confidence in using markets (20 June 2017). More...

ACCC commences Federal Court action against Thermomix
The ACCC has revealed that it has commenced proceedings in the Federal Court against Thermomix In Australia Pty Ltd (Thermomix), alleging it contravened several provisions of the Australian Consumer Law (the ACL) - contained in Sch 2 to the Competition and Consumer Act 2010 (Cth). 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 (20 June 2017). More...

Australian School of Management's registration cancelled
Celebrity-endorsed higher education provider the Australian School of Management (ASM) has had its registration cancelled by the Turnbull Government. In May last year it signed an agreement with the ACCC where it agreed to pay $44 million back to the Federal Government for using door-to-door sales brokers who broke consumer law by misleading people by saying courses were free, would help people find jobs and offering inducements such as free iPads (16 June 2017). More...

AIG: What will new energy policies actually do?
The disastrously high prices facing electricity and gas users across Eastern Australia are inspiring a lot of activity. Energy users and businesses using gas directly in production are looking for ways to cut their own costs, and a range of technology and services providers are eager to help them. Governments are searching for a mix of reforms that will reduce costs, maintain reliability and reduce greenhouse gas emissions (16 June 2017). More...

In practice and courts, published reports

ACCC Electricity supply & prices inquiry update
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...

NSW Fair Trading: Have your say on retirement village reforms
NSW Fair Trading is inviting public comment on draft reforms affecting the state's retirement villages. The new regulation will retain a number of existing provisions, while also making amendments to reduce excessive administrative requirements for operators, and improve protection for both prospective and current residents. Submissions close 20 July 2017 (22 June 2017). More....

Designing Cartel Sanctions: A Continuing Debate
The 8th Annual Baxt lecture, Woodward Conference Centre, Melbourne Law School 21 June 2017 Judge Douglas Ginsburg, Federal US judge on the Court of Appeals; Introduction by Roger Featherston, ACCC Commissioner
The address focussed on the importance of directing sanctions to the individuals involved in the contraventions, rather than continuing to increase corporate sanctions; the latter, it was argued, both fails to increase deterrence and imposes penalties on shareholders who were not involved in the misconduct and cannot be deterred. More...

Cases

ACCC v Acquire Learning & Careers Pty Ltd [2017] FCA 602: Acquire Learning Fined for Engaging in Unconscionable Conduct
In the case of ACCC v Acquire Learning & Careers Pty Ltd [2017] FCA 602 (30 May 2017), the Federal Court has ordered Acquire Learning & 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 (the ACL – which is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth)) (23 June 2017).

Downey and Australian Securities and Investments Commission [2017] AATA 958
CORPORATIONS LAW – six year banning order – whether conduct misleading or deceptive or likely to mislead or deceive – factors to be taken into account when imposing a banning order – duration of banning order – decision under review is set aside – applicant banned under s 920A of the Corporations Act 2001 for a period of four years.

Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd (No 2) [2017] FCA 720
CONSUMER LAW – product safety of consumer goods – alleged contraventions of product safety standards – where disputed issue resolved adversely to respondent – where respondent otherwise admitted contraventions – application by the parties for the making of declarations in relation to admitted contraventions. Australian Consumer Law and Fair Trading Act 2012 (Vic), Australian Consumer Law (Victoria), ss 106, 136; Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 106, 136.

Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liquidation) (No 2) [2017] FCA 709
CONSUMER LAW – contraventions of the Australian Consumer Law – representative case based on system of conduct or pattern of behaviour – misleading or deceptive conduct – false or misleading representations – unfair consumer contract terms – unsolicited consumer agreements – unconscionable conduct – accessorial liability of company director – leave to proceed against company in liquidation under s 500(2) of the Corporations Act 2001 (Cth) – leave to proceed under r 30.21(1)(b)(i) of the Federal Court Rules 2011 (Cth) where respondents absent at trial – contraventions of Australian Consumer Law established. Competition and Consumer Act 2010 (Cth), Sch 2, ss 4, 18, 21, 22, 23, 24, 25, 27, 29, 60, 61, 62, 69, 70, 79, 86, 155, 159, 224, 267.

Australian Battery Distributors Pty Ltd v Robert Bosch (Australia) Pty Ltd (No 3) [2017] FCA 707
CONSUMER LAW – further amended statement of claim alleging contravention of ss 18 and 21 of The Australian Consumer Law, Sch 2 to the Competition and Consumer Act 2010 (Cth) – application to strike out or summarily dismiss the statement of claim for alleged deficiencies – order made striking out the statement of claim - Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth) Sch 2 – The Australian Consumer Law ss 18, 21, 22, 236, 237, 243.

Hope v Australian Community Pharmacy Authority [2017] FCA 669
ADMINISTRATIVE LAW – objection to new pharmacy – approval of new pharmacy location – interpretation of rules for pharmacy approval – false and misleading information provided by applicant to the Australian Community Pharmacy Authority – 'fraud' in Australian public law – fraud on the Authority – jurisdiction of Authority constructively unexercised – Authority's recommendation vitiated – application remitted. Administrative Decisions (Judicial Review) Act 1977; Judiciary Act 1903 (Cth); National Health Act 1953 (Cth); National Health (Australian Community Pharmacy Authority Rules) Determination 2011.

Director of Consumer Affairs Victoria v Daiso Industries (Australia) Pty Ltd [2017] FCA 683
CONSUMER LAW – product safety of consumer goods – alleged contraventions of product safety standards – where goods in question included plastic bath toys and plastic animal toys – whether the goods were "toys for children up to and including 36 months of age" and so covered by applicable product safety standards. Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 106, 136, 138, 232.

Fitzgerald v Deloitte Services Pty Ltd [2017] NSWCA 139
TRADE PRACTICES – misleading or deceptive conduct – s 18 of the Australian Consumer Law - whether the respondent relied on representations made by the appellant – whether it is necessary to establish reliance on representations – whether the appellant was 'involved' in contraventions of s 18 for the purposes of s 2 of the Australian Consumer Law – whether the appellant was liable for contraventions pursuant to s 236 of the Australian Consumer Law. CONTRACT – whether the primary judge erred in determining that a payment practice had been established – whether the primary judge misconstrued the terms and scope of the payment practice. APPEAL AND NEW TRIAL – no issue of principle – failure to demonstrate that the primary judge's findings were glaringly improbable or inconsistent with accepted evidence or with evidence overlooked by the primary judge.

Commonwealth Bank of Australia v Stephens [2017] VSC 385
CONTRACT – Unilateral mistake – Equitable right to rescission where other party exploits a 'serious mistake' – Whether Bank was aware of customer's mistaken understanding of terms of fresh loan – Held: Bank was not aware of a 'serious mistake' and did not deliberately set out to ensure that customer did not become aware of this mistake – Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 considered and applied.
TRADE PRACTICES – Misleading or deceptive conduct – Representation alleged to have been made to a party about the terms of an executory contract – Representation must be made with sufficient precision – Conduct to be assessed in the light of all relevant facts and circumstances – Whether Bank made representations about a loan which differed from the terms of that loan – Held: no representation was made giving rise to misleading or deceptive conduct – Australian Securities and Investments Commission Act 2001 (Cth) s 12DA(1) – Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 considered and applied.
TRADE PRACTICES – Statutory unconscionability – Whether statutory unconscionability requires 'moral obloquy' as distinct from mere unfairness or unreasonableness – Whether there was a 'moral taint' to Bank's conduct in not explaining terms of fresh loan to customer with sufficient clarity – Held: (1) moral obloquy required; (2) Bank's conduct not unconscionable – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB(1) – Violet Home Loans Pty Ltd v Schmidt [2013] VSCA 56; (2013) 44 VR 202; Director of Consumer Affairs (Vic) v Scully (No 3) [2012] VSC 444; [2013] VSCA 292 considered and applied.
EQUITY – Vitiating factors – General law unconscionability – Whether customer with mistaken understanding of terms of fresh loan was under a 'special disadvantage' – Requires 'close consideration of the facts' – Equitable relief requires both (1) a disabling condition and (2) 'unconscientious taking advantage' by the other party – Inequality in bargaining power an important but not decisive factor – Held: (1) there was no special disadvantage; (2) there was no 'victimisation or exploitation' - Australian Securities and Investments Commission Act 2001 (Cth) 12CA(1) – Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362; Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447; Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 considered and applied.
CONSUMER PROTECTION – Whether a credit contract between Bank and customer was one to which Consumer Credit (Victoria) Code applied – Whether credit contract was 'carried over instrument' and subject to National Credit Code – Held: Consumer Credit (Victoria) Code applied and credit contract was carried over instrument – Consumer Credit (Victoria) Act 1995 (Vic); National Consumer Credit Protection Act 2009 (Cth).
CONSUMER PROTECTION – National Credit Code s 76(1) – 'Unjust transaction' – Court to have regard to the public interest – Factors to have regard to under s 76(2) – Customer did not seek legal advice before signing loan agreement – Whether Bank discouraged customer from seeking independent legal advice before signing loan agreement – Whether Bank exerted unfair pressure or used unfair tactics or otherwise engendered an unjust transaction – Held: neither of the loan agreements nor their provisions are the product of unfair conduct on the part of the Bank – National Consumer Credit Protection Act 2009 (Cth).
CONTRACT – Restitution – Change of position – Good faith and reliance on receipt of money – Whether restitution unjust because of misrepresentations as to loan amount – David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353; Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50; [2002] 1 All ER (Comm) 193 considered.
EQUITY – Subrogation – Payment out of a prior security by third party – Unconscionability of denying proprietary interest where third party presumably intended paying-out to be for own benefit – Subrogation only available absent sufficient remedy at law or in equity – Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269; Aged Care Services Pty Ltd v Kanning Services Pty Ltd [2013] NSWCA 393; (2013) 86 NSWLR 174 considered.

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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Authors
Ian Robertson
 
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