Australia: Competition & Consumer Law News – 15 August 2017

Last Updated: 21 August 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, October 2018

In the media

ACCC takes action against domain registration businesses
The ACCC has instituted proceedings against Domain Name Corp Pty Ltd and Domain Name Agency Pty Ltd (also trading as Domain Name Register) (the Domain companies) alleging that they engaged in misleading or deceptive conduct and made false or misleading representations to Australian businesses about the domain name services they offered (11 August 2017). More...

New car industry put on notice
The ACCC released the draft report of its market study into Australia's new car retailing industry. Complaints to the ACCC about new car manufacturers have risen to more than 10,000 over the past two years, and the draft report highlights the urgent need to address widespread issues in the industry according to the ACCC (10 August 2017). More...

ACCC targets car dealers in warranty crackdown
Dodgy new car retailers who mislead consumers about guarantees, warranties and fuel consumption promises are put on notice by Australia's competition watchdog (10 August 2017). More...

ACCC releases Statement of Issues on BP's proposed acquisition of Woolworths' petrol sites
The ACCC has flagged preliminary concerns regarding the proposed acquisition by BP Australia Pty Ltd of Woolworths Limited's network of retail service station sites and is seeking feedback from interested parties. The ACCC has outlined its preliminary view that the proposed acquisition may substantially lessen competition for the retail supply of fuel across metropolitan areas. The transaction could see retailers face less competitive pressure to keep their prices low (10 August 2017). More...
The Statement of Issues is available on the public register.

Criminal cartel investment pays off
For the first time in over 100 years in Australia, a cartelist was convicted, sentenced and fined for a breach of the criminal law. Despite NYK pleading guilty and cooperating with the prosecution, the $25 million fine is the second largest ever imposed under the Competition and Consumer Act 2010. Chairman Rod Sims said the verdict vindicates the increased dedicated resources the ACCC has allocated over the past three years to cartel investigations (05 August 2017). More...

NYK convicted of criminal cartel conduct and fined $25 million
The Federal Court has convicted Japanese shipping company Nippon Yusen Kabushiki Kaisha (NYK) of criminal cartel conduct and ordered it to pay a fine of $25 million: the second-highest imposed in ACCC history. The judgment also marks the first successful prosecution under the criminal cartel provisions of the Competition and Consumer Act 2010 (CCA). The fine includes a significant discount (50%) for an early guilty plea, cooperation and contrition) (03 August 2017). More... judgment court summary of the case

Holden admits to likely misleading customers about repair rights, strikes deal with ACCC
The competition watchdog has reached a landmark agreement with Holden, where the car manufacturer has agreed to repair rights beyond what is compelled by the Australian Consumer Law. The agreement with Holden is part of an ACCC "crackdown" on car makers. The ACCC launched legal action against Ford for allegedly misleading customers about their right to have faulty gearboxes repaired (03 August 2017). More...

Nurofen to pay $3.5 million compensation to customers who bought 'misleading' pain relief
Australians who paid a premium for Nurofen's "misleading" targeted pain relief pills can apply for compensation after the manufacturer agreed to settle a class action lawsuit. Reckitt Benckiser will pay $3.5 million to customers who purchased the painkillers between 2011 and 2015. The court agreed to raise the fine to $6 million - the highest corporate penalty awarded for misleading conduct under the Australian Consumer Law (03 August 2017). More...

ACCC invites feedback on NBN Co's revised Special Access Undertaking variation
The ACCC has published a consultation paper inviting submissions on NBN Co's revised variation to its Special Access Undertaking (SAU). NBN Co has revised variation includes amended terms that respond to non-price matters raised by stakeholders and also provided a new submission in support of its variation, which deals more directly with some of the statements made during the previous consultation regarding pricing (02 August 2017). More...
The closing date for submissions on NBN Co's revised variation is 25 August 2017. The ACCC consultation paper, NBN Co's revised variation to its Special Access Undertaking, and related documentation are available on the ACCC website here.

Prysmian to pay penalty of $3.5m for engaging in cartel conduct
The Federal Court has ordered that Prysmian Cavi E Sistemi SRL pay a pecuniary penalty of $3.5m for cartel conduct in relation to the supply of high voltage land cables. This follows the Court's finding of contravention in July last year (31 July 2017). More... (Penalty Decision) More...

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. The release of the report follows a recent increase in the focus on competition law in the academic space, with a University of Melbourne professor saying Australian legal professionals need to be more aware of the underlying economic principles (27 August 2017). More...

In practice and courts, published reports

Treasury: Exposure Draft Regulations
Treasury has released on 9 August, the Exposure Draft amendments to the Competition and Consumer Regulations which will follow from proposed amendments to the Act in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 and the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, both currently before Parliament. Submissions may be made until 22 August.

Wapshott Motors Pty Ltd - Commencement of action
Consumer Affairs Victoria has begun disciplinary proceedings in the Victorian Civil and Administrative Tribunal (VCAT) against Surrey Hills business Wapshott Motors Pty Ltd (ACN 107 084 560) for alleged contraventions of the Motor Car Traders Act 1986 (the Act) and its associated regulations (03 August 2017). More...

Cases

Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
This is the first criminal prosecution for a cartel related offence since cartel conduct was criminalised by amendment to the then Trade Practices Act 1974 (Cth) in July 2009. It arises out of a longstanding global cartel in a market of considerable importance to Australia: the market for the supply of ocean shipping services for "roll-on, roll-off" cargo, mainly cars and trucks. The particular cartel conduct the subject of the prosecution involved giving effect to certain provisions of the cartel arrangements insofar as they applied or related to shipping routes to Australia. Having regard to all of the relevant features and factors, and giving them appropriate weight, the appropriate sentence to impose on NYK in all the circumstances is a fine of $25 million. That fine incorporates a global discount of 50% for NYK's early plea of guilty and past and future assistance and cooperation, together with the contrition inherent in or demonstrated by NYK's early plea and cooperation.

Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 3) [2017] FCA 865
COMPETITION– misleading or deceptive conduct – ss 18 and 29(1)(g) and (h) of Australian Consumer Law – identification of the appropriate class of persons to whom the alleged misrepresentation was made – identification of nature of misrepresentation – whether participants in commercial construction industry likely to be led into error by respondent's conduct – application dismissed.
TORTS– passing off – identification of applicant's commercial reputation – whether respondent's business activities using the name "Shape" threaten to damage or otherwise adversely affect that reputation and goodwill – application dismissed.
TRADE MARKS – claim that respondent's mark is "deceptively similar" to the registered trade mark of the applicant – identification of relevant class of persons – whether commercial construction industry is "specialised" – discussion of distinction between "wonderment" and being led into "error" – application dismissed. Competition and Consumer Act 2010 (Cth) Sch 2, Australian Consumer Law, ss 18, 29.

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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