Australia: Competition & Consumer Law News – 19 July 2017

Last Updated: 23 July 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, December 2017

In the media

ACCC releases findings of beer tap investigation
The ACCC has released its findings into an investigation of the contracts of CUB and Lion, following allegations from some craft brewers that they were being locked out of beer taps in certain venues as a result of exclusivity provisions and volume requirements. The ACCC concluded that the contracts were unlikely to result in a substantial lessening of competition in the markets investigated. However, it notes that it will continue to monitor developments in the market (13 July 2017). More...

Australia's small cinemas want cartel exemption to negotiate better film deals
Australia's smallest cinemas want to toughen their bargaining power when negotiating the right to screen films from Hollywood and arthouse distributors. An application with the competition watchdog reveals the industry peak body wants an exemption from cartel laws for its 82 members to collectively and transparently negotiate the conditions and price of screening a film (12 July 2017). More...

ACCC appeals Tribunal's Tabcorp ruling
An appeal on the merits is not available for Tribunal merger authorisation decisions, but the ACCC is seeking judicial review, alleging three reviewable errors, including that the Tribunal erred in its reasoning that 'it could only conclude that the proposed acquisition was likely to result in a detriment if the Tribunal concluded that there would be a substantial lessening of competition'. More...

Cartel pushes gas prices up, leaving businesses broke and Aussies jobless
After gaining control of Australia's gas, a cartel is now pushing prices up. Businesses are getting broke, and it is killing the economy, an expert warned. According to an energy analyst, a gas cartel on the east coast of Australia makes the situation worse. Institute for Energy Economics and Financial Analysis' Bruce Robertson said the Aussie gas cartel is restricting supply to the domestic market, forcing the prices to go up (07 July 2017). More...

Superior Realty Pty Ltd (t/as Barry Plant Glenroy), Fadi Khoder and Evangelos Nestor - Enforceable undertaking
A Glenroy estate agency will contribute $45,000 to the Victorian Consumer Law Fund after acknowledging contraventions of Victorian consumer and property laws relating to property sales. Iits director, Fadi Khoder, and its managing director Evangelos Nestor, who acknowledge making false and misleading representations about the sale price of a further six properties in Broadmeadows, Dallas, Glenroy and Meadow Heights (11 July 2017). More...

ACCC urges small business to review payment surcharges
The ACCC has urged small business owners to prepare for the ban on excessive payment surcharges that will come into operation on 1 September 2017. The new laws were introduced through the Competition and Consumer Amendment (Payment Surcharges) Act 2016, which inserted a new Part IVC of the CCA, including s55B which provides that a 'corporation must not, in trade or commerce, charge a payment surcharge that is excessive'. More...

Court finds Unique was misleading and unconscionable
The Federal Court has today found that Unique International College Pty Ltd (Unique) made false or misleading representations and engaged in a pattern of behaviour that amounted to unconscionable conduct in breach of the Australian Consumer Law. The Court found that Unique's marketing deliberately targeted people from disadvantaged and vulnerable groups, including regional Aboriginal communities (30 June 2017). More...

Sydney college found guilty of scamming students into accepting costly loans
A private college in Sydney breached consumer law when it signed up thousands of students to loans without them knowing, the Federal Court has ruled. Unique misled people by stating that the course was free, when in fact they would incur a debt of up to $25,000 per course under the VET FEE-HELP scheme (30 June 2017). More...

In practice and courts, published reports

Ban on excessive payment surcharging
The ACCC has published guidance material for consumers and businesses about the new ban on excessive surcharging and what it means (July 2017). More...

Electricity supply and prices inquiry public forums
The ACCC is inviting electricity customers to participate in a series of public forums as part of the Electricity supply and prices inquiry. Attendees will have the opportunity to raise competition and pricing issues in the retail electricity sector with ACCC Commissioners. Following the forums, a summary of issues discussed at the forums will be published on the ACCC website. Consultation closes 14 August 2017. More...

Competition in the Australian financial system: consultation paper
Productivity Commission: 06 July 2017
The Australian Government has asked the Productivity Commission to undertake an inquiry into competition in Australia's financial system. As stated in the terms of reference, this inquiry complements other work by the Commission, which will affect the financial system. More...


Australian Competition and Consumer Commission v Unique International College [2017] FCA 727 CONSUMER LAW – alleged contraventions of s 21 of Australian Consumer Law – unconscionable conduct in trade or commerce – unconscionable conduct in connection with goods or services – where Respondent provided vocational educational services in form of online courses in management, salon management and marketing – allegation that Respondent targeted particular locations, including rural and remote towns and indigenous communities and areas with significant populations of low socio-economic status for marketing and enrolling consumers in courses – whether system of conduct or pattern of behaviour established – whether unconscionable conduct in relation to six nominated consumers - whether unconscionable conduct in all the circumstances.
CONSUMER LAW – alleged contraventions of ss 18 and 29 of Australian Consumer Law – misleading or deceptive conduct in trade or commerce – false or misleading representations about goods or services – whether conduct of Respondent misleading or deceptive in relation to representations made to consumers – whether silence in relation to particulars of VET FEE-HELP scheme misleading or deceptive.
CONSUMER LAW – alleged contraventions of ss 74, 76, 78 and 79 of Australian Consumer Law – unsolicited consumer agreement provisions – whether unsolicited consumer agreements within meaning of Division 2 – whether statute requires dealer to initiate negotiations which led to entering into of agreement – disclosing purpose and identity – informing person of termination period – requirement to give document to customer – requirements for all unsolicited consumer agreements – whether 'party plan event' exception applies.
Competition and Consumer Act 2010 (Cth) sch 2, Australian Consumer Law, ss 21, 21(4), 21(4)(b), 22, 22(1), 22(1)(a), 22(1)(c), 22(1)(d), 22(1)(e), 22(1)(i), 69, 69(1)(b), 69(1)(c), 69(4), 70, 71, 71(a), 71(b), 72, 73, 74, 75, 75(1), 75(1)(a), 76, 76(1), 77, 78, 78(1), 79, 79(b)(i), 79(c)(i), 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95.

Digital Central (Assets) Pty Ltd v Stefanovski [2017] FCA 738
CONTRACT – interpretation – construction of term – intention to restrain competition. TRADE PRACTICES – misleading or deceptive conduct – unconscionable conduct – breach of statutory duty of good faith in franchise agreement – concealment of intention before and after termination and sale of franchise to cause company to engage in competition with franchise business – whether statements made and omissions were misleading or deceptive – injunction – damages.
CONTRACT – intellectual property – confidential information – restraint of trade – obligations of franchisee as to confidential information after termination of contract – whether subject to implied term in contract – whether dependent on equitable rules concerning confidentiality – categories of confidential information – trade secrets – general know-how of employees – effect of explicit contractual restraint. Competition and Consumer Act 2010 (Cth) ss 51ACB, 80, 82, 87.

Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169
CONTRACTS – BUILDING CONTRACTS – Breach – breach of statutory warranties – breach of express written terms – breach of contractual warranty – failure to rectify defects – quantum of damages.
TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – Representations – quantum of damages – ancillary liability for damages – proportionate liability. DAMAGES – CONTRIBUTION AND APPORTIONMENT – Proportionate liability – "building action" – "apportionable claim" – "concurrent wrongdoer". Building Act 2004 (ACT), ss 88, 140, 141, Part 9. Civil Law (Wrongs) Act 2003 (ACT), ss 107A, 107F(3)(b). Civil Liability Act 2002 (NSW).

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ian Robertson
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions