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 2018

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.

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