Australia: Competition & Consumer Law News – 29 August 2017

In the media

Commonwealth to introduce Misuse of Market Power "Effects Test"
The Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Cth) (the Act) was assented to on 23 August 2017. The Act introduces a so-called "effects test" into section 46 of the Competition and Consumer Act 2010 (Cth), which was recommended by the Harper review into Australia's competition framework. The Act will commence at the same time as Schedule 1 to the Competition and Consumer Amendment (Competition Policy Review) Act, which is currently still at bill stage and is being considered in Parliament. If the Bill does not pass, the provisions in the Act will not commence (24 August 2017). More...

Competition regulator's economy-wide focus
Speaking at a Committee for Economic Development (CEDA) WA event, Mr Sims discussed the ACCC's inquiry into the financial sector, the energy affordability crisis facing Australia's east coast, the "game changing" approach to broadband advertising he hopes will reform the telco industry; the changes needed to help new car buyers exercise their rights, the agency's focus on cartel activity; and the need for appropriate regulation before privatising monopoly assets (24 August 2017). More... More....

ACCC issues SOI on proposed acquisition of OfficeMax
The ACCC has issued a Statement of Issues in relation to Platinum Equity's proposed acquisition of OfficeMax Australia. It has indicated its 'primary concern is that the loss of competition between Staples and OfficeMax could result in higher prices and lower levels of service'. Interested parties have until 7 September to make submissions; a final decision is expected on 16 November 2017 (24 August 2017). (ACCC media release) More... (merger register) More...

BlueScope is being investigated, its CEO has resigned and shares are down 20%
The company also announced that it was the subject of a regulatory investigation. BlueScope's contingent liabilities note in its 2017 financial statements: "Over the last financial year, the Australian Competition and Consumer Commission (ACCC) has been investigating potential cartel conduct by BlueScope relating to the supply of steel products in Australia, that involved a small number of BlueScope employees in the period from late 2013 to mid-2014. BlueScope has co-operated, and continues to co-operate, with the ACCC's investigation." (21 August 2017). More...

ACCC v We Buy Houses Pty Ltd [2017] FCA 915: Company Director Found Guilty of making False or Misleading Representations
In the recent case of ACCC v We Buy Houses Pty Ltd [2017] FCA 915 (11 August 2017), the Federal Court has found that We Buy Houses Pty Ltd and its sole director, Mr Otton, made false or misleading representations in promoting a number of wealth creation strategies involving real estate (18 August 2017). More...

Strengthened competition law to benefit Aussie small businesses and consumers
The Turnbull Government has legislated significant amendments to strengthen Australia's competition law providing greater protections for small businesses and more choice for consumers by boosting innovation and opening new markets. The amendments implement a key recommendation of the Harper Competition Policy Review to strengthen section 46 of the Competition and Consumer Act 2010, also known as the misuse of market power provision. The Harper Review found the misuse of market power law was not reliably enforceable and did not effectively target and deter anti-competitive conduct (15 August 2017). More...

Boosting competition in banking
The Turnbull Government welcomes the Australian Prudential Regulation Authority's (APRA) release today of the discussion paper on a phased approach to licensing new entrants to the banking industry. As announced at the 2017 Budget, the Government supports the implementation of a phased APRA licensing system to encourage new and innovative providers (15 August 2017). More...

ACCC takes action to enforce $50,000 penalty
The ACCC has commenced proceedings in the Federal Court against Mr Tuan Nguyen to enforce payment of a $50,000 penalty previously ordered for breaches of consumer law. In 2013, the Court found that Mr Nguyen was knowingly concerned in false or misleading representations made by Artorios Ink to five small businesses to sell printer cartridges. The Court ordered Mr Nguyen to pay a penalty of $50,000 but he made no payments and filed for bankruptcy (14 August 2017). More...

In practice and courts, published reports

Independent review into the electricity and gas retail markets in Victoria: final report
John Thwaites, Patricia Faulkner, Terry Mulder; Department of Environment, Land, Water and Planning (Vic): 13 August 2017
When competition was introduced into Victoria's retail energy market in 2002, it was anticipated to generate consumer benefits through lower costs of supply and innovative product development. It was expected that low barriers to entry would attract new competitors and reduce the commercial. More....

Broadband speed claims: industry guidance
Australian Competition and Consumer Commission: 21 August 2017
The ACCC is providing more detailed guidance concerning how to implement its principles for advertising the speeds of retail fixed-line broadband plans. This guide has been prepared in consultation with network operators, retail service providers (RSPs) and consumer representatives. More...

Australia's dairy industry: rebuilding trust and a fair market for farmers
Senate Economics References Committee: 17 August 2017
On 14 September 2016, the Senate referred an inquiry into the Australian dairy industry to the Senate Economics References Committee for report by 24 February 2017, in order to establish a fair, long-term solution to Australia's dairy crisis, with particular reference to fresh milk security, the legality of retrospective elements of milk contracts; the behaviour of Murray Goulburn; and any other related matters. More...

Cases

Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915
CONSUMER LAW – misleading or deceptive conduct – alleged breaches of ss 18, 29(1)(e), (f) and (g), 34 and 37 of the Australian Consumer Law – where alleged that the respondents represented that the respondents could teach consumers how to buy a house for $1, and/or without a deposit or a bank loan, and/or with little or none of the consumer's money, and/or generate income and profit by dealing with property in various ways – alleged representation that first respondent had been successful in real estate by using the advertised methods – where representations made in a book, on several websites, at free seminars and in various training courses – whether alleged representations were made out – whether mere puffery – whether representations as to future matters – application of s 4 of the Australian Consumer Law – whether there were reasonable grounds for making of the representations – whether first respondent was directly or indirectly, knowingly concerned in, or party to, contraventions of the Australian Consumer Law by the second respondent – contraventions found. PRACTICE AND PROCEDURE – leave sought to rely on amended version of statement of claim served during trial – leave refused.

Dargan Financial Pty Ltd ATF the Dargan Financial Discretionary Trust (trading under Home Loan Experts) v Nassif Isaac [2017] NSWSC 1077
CONTRACTS — general contractual principles — construction and interpretation of contracts.
EQUITY — Breach of confidence — Necessary quality of confidence — Material in public domain.
TRADE AND COMMERCE — restraints of trade — reasonableness of restraint — cartel provisions.
A New Tax System (Goods and Services Tax) Act 1999 (Cth); Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth).

Chandra Hasan Yuvarajah v Mercedes-Benz AustraliaPacific Pty Ltd (Civil Claims) [2017] VCAT 1296
Motor vehicle; Australian Consumer Law s54 acceptable quality; s55 fitness for purpose; s59 express warranties; s260 major failure; s278 linked credit provider. The applicant adduced no evidence in respect of any representation or any misleading or deceptive conduct by the first respondent about the car. Findings: the applicant has not established that the first respondent contravened section 18 of the ACL by engaging in misleading and deceptive conduct.

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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