Australia: Competition & consumer law news – 1 August 2017

Last Updated: 6 August 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, December 2017

In the media

ACCC to 'up the ante' against cartels: report
A global law firm has released data on cartel activity around the world, predicting increased activity from Australia's corporate regulator in the second half of 2017. However, Allen & Overy said the regulator may be more active over the rest of the year as it is waiting on several judgments and penalty outcomes, including its successful High Court case against Flight Centre for attempted price-fixing (26 July 2017). More...

See also Allen & Overy Global Cartel Enforcement 2017 Mid-Year report. The report notes that in the past six months the ACCC has issued only one cartel fine, but that increased activity is expected in the second half of 2017 as the ACCC awaits judgments and penalty outcomes in a number of proceedings (including the Flight Centre case).

ACCC focus on Brownes WA dairy contracts
The Australian Competition and Consumer Commission investigates new Brownes milk producer contracts, as part of its on-going national inquiry into the dairy industry (26 July 2017). More...

ACCC takes action against Ford
The ACCC has instituted proceedings against Ford Motor Company of Australia Limited (Ford) alleging that it engaged in unconscionable and misleading or deceptive conduct, and made false or misleading representations in its response to customer complaints. The ACCC alleges that Ford misrepresented to customers who made complaints that the issues with their vehicles were caused by the way the driver handled the vehicle, even though Ford was aware of systemic issues with the vehicles from at least 2013 (26 July 2017). More...

ACCC to hold first public hearing into power prices
The ACCC held its first public hearing into power prices in Brisbane as part of its inquiry into national electricity prices, ordered by the Treasurer in March. Several other forums are scheduled over the coming months. The ACCC has also released an overview of the submissions made in response to the issues paper (25 July 2017).

ACCC Begins Court Action against Heinz over Sugary Products
Legal action against H.J. Heinz Company Australia Ltd (Heinz) commenced on Monday 24 July 2017, with the Australian Competition and Consumer Commission (ACCC) alleging the "Little Kids Shredz" range misleads the public about the nutritional content of the product (25 July 2017). More...

Egg producer penalised $750,000 for misleading 'free range' claims
The Federal Court has ordered Snowdale Holdings Pty Ltd to pay penalties totalling $750,000 for making false or misleading representations that its eggs were 'free range', in proceedings brought by the Australian Competition and Consumer Commission (25 July 2017). More...

Lululemon pays infringement notices
Lululemon Athletica Australia Pty Ltd (Lululemon) has paid penalties totalling $32,400 following the ACCC issuing three infringement notices for alleged false or misleading representations about consumer guarantee rights. The ACCC alleges that Lululemon made representations to customers that they were not entitled to a refund or replacement for products under any circumstances, when that was not the case (24 July 2017). More...

ACCC says Small Businesses just need a level playing field
The Australian Competition and Consumer Commission has taken action over the last six months to ensure small business have a level playing field, as revealed in the 14th edition of the ACCC's Small Business in Focus report (24 July 2017). More...

Ezy Lite Pty Ltd and Adnan Dennaoui - Court outcome
A building cladding company and its director have been convicted and fined a total of $70,000, after pleading guilty to making false and misleading representations about the fire ratings of some of its products (21 July 2017). More...

ACCC warns big four telcos over NBN internet speed failures
The competition watchdog warns Australia's largest four telcos they could find themselves in court for failing to deliver on their NBN speed promises (20 July 2017). More...

ACCC on changing telecommunications market dynamic
Australian Competition and Consumer Commission Chairman Rod Sims said he believed it was important that the promotion of competition in relevant markets is included within the new spectrum framework. Anti-competitive behaviour can be prevented in many ways, including through spectrum caps, or establishing rules specifying how spectrum can be traded by licensees (20 July 2017). More... More...

ACCC statement on Aldi Flushable Wipes
The ACCC has this week, raised concerns with ALDI regarding its promotion of ALDI Green Action Flushable Bathroom Cleaning Wipes (100pk) in its Special Buys catalogue. The ACCC's concerns stem from the use of the term 'flushable', in particular the concern that such a claim may mislead consumers if the claim cannot be substantiated. The ACCC is already pursuing alleged misleading 'flushable' claims more generally, with two proceedings currently before the Federal Court against Pental and Kimberly-Clark Australia Pty Ltd (19 July 2017). More...

Uber surge pricing to be capped in Victoria after Metro chaos
Exorbitant fares on Uber during major traffic incidents and public transport delays could be stamped out by new Victorian laws, the Andrews Government declares. The ridesharing company uses "dynamic pricing", which means that when demand is higher fares increase. Users are given a quoted price before they accept a fare. Victorian Public Transport Minister Jacinta Allan said the surge pricing behaviour was unacceptable (18 July 2017). More...

Further action to create a more competitive banking system for Australians
More competitive loans and other financial products for Australians will be encouraged through new reforms announced by the Turnbull Government in the 2017 Budget (17 July 2017). More...

Huntley Management Ltd ordered to pay penalty for false and misleading advertising
The Federal Court of Australia has ordered Huntley Management Limited (Huntley) to pay a penalty of $50,000 for false and misleading advertising that its investment projects were 'approved by the Australian Securities and Investments Commission' Huntley, which is a responsible entity of various managed investment schemes, admitted that the statements were false and misleading (14 July 2017). More...

In practice and courts, published reports

2017 AEMC retail energy competition review - final report
Australian Energy Market Commission: 25 July 2017
The AEMC has released its fourth annual review of the state of competition in retail energy markets across the national electricity market. This review report makes a number of recommendations to make it easier for customers to take advantage of competition and make the best energy choices for their household or business. 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. Consultations close 14 August 2017. 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. More...


Island Helicopters Pty Ltd v Central (Qld) Aviation Pty Ltd & Anor [2017] FCCA 1665
CONTRACTS – Lease agreement in relation to helicopter – term that lessor at its cost would take out hull insurance for helicopter - whether it was a term of the lease agreement that the helicopter could operate only in Australia – whether lease agreement was varied to the effect that lessee agreed to pay additional insurance premium that became payable by lessor because the helicopter was to operate in Papua New Guinea (PNG) – no variation of lease agreement.
CONTRACTS – Discharge of lease agreement by repudiation – helicopter destroyed as a result of crash – lessee makes no payments under lease agreement for period after date on which helicopter crashed – whether by not making such payments lessee repudiated the lease agreement – whether lessor elected to terminate the lease agreement on account of claimed repudiation by lessee of lease agreement so as to entitle lessor to loss of bargain damages – no evidence lessor elected to terminate lease agreement.
CONTRACTS – Discharge of lease agreement by frustration - whether because helicopter was destroyed as a result of a crash the lease agreement was discharged by frustration – whether at the time the helicopter was destroyed the lessee bore the onus of proving it did not induce the crash – lease agreement frustrated.
CONTRACTS – Whether under the lease agreement the lessor was required to insure not only the Helicopter but equipment that was also hired to the lessee under the lease agreement.
CONSUMER LAW – Misleading or deceptive conduct – whether terms in lease agreement constituted representations as to future matters – whether lessee adduced evidence it had reasonable grounds for making the representations constituted by the terms of the lease agreement – whether lessor relied on the terms to deliver the helicopter to lessee – whether lessor suffered any loss by relying on the terms.
CONSUMER LAW – Misleading or deceptive conduct and unconscionable conduct – whether lessee represented to the lessor it would pay additional insurance premium that became payable by lessor because the helicopter was to operate in PNG – whether lessor suffered any loss or damage. Civil Aviation Act 1988 (Cth), ss.3, 6, 7, 7(b); Federal Circuit Court of Australia Act 1999 (Cth), s.76(3); Trade Practices Act 1974 (Cth), ss.51AA, 51AC, 51A, 51A(2), 52, 52(1), 82.

Melbourne City Investments Pty Ltd v Myer Holdings Limited [2017] VSCA 187
PROCEDURE – Abuse of Process – Applicant created as vehicle for bringing class actions against listed corporations – Applicant held shares in respondent purchased for less than $1,000 –Applicant not concerned with being compensated for loss nor with bring the proceedings for the benefit of the group members – Applicant sought to profit through orders for payment to it for acting as representative plaintiff and funding litigation – Proceeding stayed by trial judge as abuse of process because predominant purpose for bringing proceeding to gain collateral advantage that was improper – Proceedings are designed to redress wrongs - Relief applicant sought not for that purpose but to gain benefit of ancillary orders – Such relief 'outside the scope of the remedy' as discussed in the authorities – Appeal dismissed - MCI is the lead plaintiff in a securities class action against Myer. It alleges that Myer breached its continuous disclosure obligations under the Corporations Act and that Myer engaged in misleading and deceptive conduct.

Australian Competition and Consumer Commission v Snowdale Holdings Pty Ltd (No 2) [2017] FCA 834
CONSUMER LAW – pecuniary penalty – representations made that the eggs sold were "free range" eggs – consumers paid a premium price on the basis that the eggs were free range eggs – loss to consumers by contravening conduct – benefit to contravenor – revised agreed penalty – deterrence – whether revised agreed penalty an appropriate penalty. Australian Consumer Law ss 18(1), 29(1)(a), 33, 134, 219(2), 224(1), 224(2) (Sch 2 of the Competition and Consumer Act 2010 (Cth)); Competition and Consumer Act 2010 (Cth) s 155(1)(b).

Central Queensland Development Corporation Pty Ltd (formerly Bluechip Development Corporation Gladstone) Pty Ltd v BMT & Assoc Pty Ltd [2017] NSWSC 992
(1) Order pursuant to UCPR 42.21 that the plaintiffs give security for the costs of the defendant by providing it with a bank guarantee in the sum of $120,000.
COSTS – security for costs – UCPR 42.21 or s1335(1) Corporations Act 2001 – where evidence from defendant suggests that neither plaintiff would be able to meet an adverse costs order – where plaintiffs have not themselves provided any evidence of their ability to pay the defendant's costs of proceedings – where the plaintiffs' financial position is not the result of the alleged conduct of the defendant – whether there has been any delay in the present application – whether the assessment of anticipated costs is reasonable. The plaintiffs appear to allege that by reason of the defendant's breach of contract and/or misleading and deceptive conduct, the project could not be completed on budget but instead suffered a substantial costs blowout amounting to more than $1.65M.

Weatherill v Bartlett [2017] NSWCA 175
CONSUMER LAW – misleading or deceptive conduct – where aircraft purchased in reliance upon misleading estimate of transportation cost – where value of aircraft exceeded purchase and transportation cost – whether loss suffered.
PROCEDURE – leave to appeal – where application for leave to appeal from appeal on question of law – whether costs of proceedings at first and second instance included to satisfy threshold in Supreme Court Act 1970 (NSW), s 101(2)(r) – no question of principle; Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 236.

Gemini Energy and Minerals Pty Ltd -v- Luff [2017] WASC 190
Contract law - Share subscription agreement - Claim for a debt - Whether parties intended to create legal relations - Whether condition precedent - Whether concurrent obligations - Whether agreement abandoned - Whether defendant induced by alleged misleading or deceptive conduct - Turns on own facts. Australian Consumer Law (Cth), s 18, s 237, s 243.

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