Australia: Competition & Consumer Law News – 12 September 2017

In the media

Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017
The Senate referred the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 to the Environment and Communications Legislation Committee for report by 16 October 2017. The Committee is now accepting submissions until 19 September 2017. More...

ACCC takes JJ Richards to court over alleged unfair contract terms
The ACCC has instituted proceedings in the Federal Court against JJ Richards & Sons Pty Ltd alleging that eight clauses in its standard form small business contract are void because they are unfair under the Australian Consumer Law (ACL). The ACCC alleges JJ Richards entered into standard form contracts containing terms the ACCC alleges are unfair because they included among other things, allowing JJ Richards to unilaterally increase its prices. More...

Court dismisses ACCC action against LG
The Federal Court has dismissed proceedings brought by the ACCC against LG Electronics Australia Pty Ltd (LG). The ACCC had alleged that LG made false or misleading representations to consumers about their rights in relation to faulty LG products (01 September 2017). More...

Petrol prices at lowest level since 2002, but margins high
The ACCC report on the Australian petroleum industry for the June quarter 2017 shows that retail margins remained high despite quarterly average petrol prices in the five largest cities dropping by 3.9 cents per litre (cpl) from the March quarter to 125.2 cpl. Retail prices in Brisbane were the highest of the five largest cities in the quarter. The average retail petrol price in Brisbane was 3.3 cpl higher than the average across the other four largest cities. The ACCC is currently examining the high retail prices, margins, and profits in Brisbane and a report is scheduled to be released in the next few weeks (31 August 2017). More...

Court dismisses ACCC action against Medibank
The Federal Court has today dismissed proceedings brought by the ACCC against Medibank Private Limited. The ACCC had alleged that Medibank made false, misleading or deceptive representations and engaged in unconscionable conduct in relation to its failure to notify Medibank members and members of its subsidiary brand, ahm, of its decision to limit benefits for in-hospital pathology and radiology services, despite representing across a number of its communication and marketing materials that it would (30 August 2017). More...

Get Qualified Australia ordered to pay $8 million penalty
The Federal Court ordered Get Qualified Australia Pty Ltd (GQA) to pay an $8 million penalty for multiple breaches of the Australian Consumer Law (ACL) and its sole director, Mr Adam Wadi, to pay a penalty of $500,000. The Court also made declarations that GQA made false or misleading representations and engaged in unconscionable conduct in its supply of services to consumers seeking recognition of their prior learning to gain qualifications. More...

ACCC takes ticket reseller Viagogo to court
The ACCC has instituted proceedings in the Federal Court against ticket reseller viagogo AG (Viagogo) alleging it breached the Australian Consumer Law when reselling entertainment, music and live sport tickets from 1 May 2017 to 26 June 2017. The ACCC alleges that Viagogo made false or misleading representations, and engaged in misleading or deceptive conduct, regarding the price of tickets on its online platform by failing to disclose substantial fees. More...

ACCC to keep NBN retailers up to speed
The ACCC has published a guide for retailers on the NBN network showing them how to advertise the speed of their broadband services, the Broadband Speed Claims – Industry Guidance. Chair of the ACCC, Rod Sims said "It is not acceptable to advertise an 'up to' speed claim, as this can give the false impression that the speed advertised is achievable at most times, including during the busy period. More...

In practice and courts, published reports

Competition and Consumer Amendment (Competition Policy) Bill passes House
The main Harper Bill - the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 - passed the House on 06 September 2017.
The bill contains many of the changes to the law proposed by the Harper panel, including changes relating to cartels, price signally and concerted practices, third line forcing, resale price maintenance, authorisations, notifications and class exemptions, among other things.
The introduction of the effects test for misuse of market power was passed into law late last month via separate legislation Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Act 87 of 2017), but the key provisions won't come into operation unless and until the main Harper Bill is passed.

Misuse of market power receives Royal Assent
The misuse of market power bill received Royal Assent last week and is now in force as the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Act 87 of 2017). See Commonwealth of Australia Gazette C2017G00923 (28 August 2017).
Commencement of the new provisions is, however, contingent on the passage of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017.

Australia's New Misuse of Market Power Law: In Brief
Dr Katharine Kemp, Research Fellow, Faculty of Law, UNSW Sydney: 31 August 2017
This month the controversial amendment to Australia's misuse of market power law – introducing the much-debated "effects test" – was passed into law, largely following the recommendations made by the Harper Panel after its major review of Australian competition policy. Depending on who you listen to, the amendment may be a "multi-billion dollar disaster waiting to happen" or a "vital economic reform". More...

Cases

Casenote: ACCC v LG Electronics Australia Pty Ltd [2017] FCA 1047: Federal Court Dismisses Claim against LG Electronics
In the case of ACCC v LG Electronics Australia Pty Ltd [2017] FCA 1047 (1 September 2017) the Federal Court has dismissed proceedings brought by the Australian Competition and Consumer Commission (the ACCC) against LG Electronics Australia Pty Ltd (LG) (05 September 2017).

Casenote: ACCC v Medibank Private Limited [2017] FCA 1006: ACCC loses Federal Court bid over Alleged Misleading Conduct Claim
In the recent case of ACCC v Medibank Private Limited [2017] FCA 1006 (30 August 2017), the Federal Court has dismissed proceedings brought by the Australian Competition and Consumer Commission (the ACCC) against Medibank Private Limited (Medibank) (01 September 2017).

Moroccanoil Israel Ltd v Aldi Foods Pty Ltd [2017] FCA 823
TRADE MARKS — trade mark infringement — whether respondents' use of Moroccan Argan Oil in relation to hair care products and tools is use as a trade mark — whether Moroccan Argan Oil deceptively similar to either or both of applicant's registered marks — whether hair brushes and hair tools are goods of the same description as the goods in respect of which applicant's trade marks are registered — whether use of Moroccan Argan Oil not likely to deceive or cause confusion.
TRADE MARKS — cross-claim for rectification of Register — whether either or both of applicant's registered trade marks inherently adapted to distinguish its goods from the goods or services of other persons — whether either or both of applicant's registered trade marks to some extent inherently adapted to distinguish its goods — whether, because of extent to which the registered trade marks are inherently adapted to distinguish designated goods, their use or intended use and any other circumstances, they do or will distinguish designated goods as applicant's goods.
TRADE MARKS — appeal from decision of delegate of Registrar of Trade Marks — opposition to registration of word mark MOROCCANOIL — whether mark inherently adapted to distinguish applicant's goods at time of application — ordinary signification of mark — whether mark merely descriptive — whether mark to some extent inherently adapted to distinguish goods — whether, because of extent to which mark inherently adapted to distinguish designated goods, their use or intended use and any other circumstances, it does or will distinguish designated goods as applicant's goods.
CONSUMER LAW — misleading or deceptive conduct — get-up and packaging of hair care products and tools — extent of applicant's reputation — whether name and get-up of respondents' goods misleading or deceptive or likely to mislead or deceive consumers — significance of evidence of confusion or deception.
CONSUMER LAW — misleading or deceptive conduct — false or misleading representations — naturals — whether use of naturals in branding of hair care products amounts to a representation that products contain substantially natural ingredients — whether representation false, or misleading or deceptive or likely to mislead or deceive. CONSUMER LAW — misleading or deceptive conduct — false or misleading representations — argan oil — whether references to argan oil on product packaging amount to representation that argan oil makes a material contribution to alleged product benefits — whether representation made that argan oil infused in hair brushes and hair tools makes a material contribution to alleged product benefits — if so, whether representation false, or misleading or deceptive or likely to mislead or deceive.
EVIDENCE — tendency evidence — whether reasonable notice given of intention to rely on tendency evidence — whether evidence of significant probative value.
Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law), ss 18, 29(1)(a), 29(1)(g), 29(1)(h), 33, 232.

Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liquidation)(No 3) [2017] FCA 1018
CONSUMER LAW – assessment of pecuniary penalties – disqualification order – injunctions – contraventions of the Australian Consumer Law – system of conduct – misleading or deceptive conduct – false or misleading representations – unfair consumer contract terms – unconscionable conduct – unsolicited consumer agreements – accessorial liability of company director – relief granted and orders made. Competition and Consumer Act 2010 (Cth) sch 2 ss 4, 18, 21, 23, 24, 29, 60, 61, 62, 69, 79, 86, 224, 232, 248, 250.

Gobbert v Elders Rural Services Australia Limited [2017] QDC 219
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiffs applied for finance from the second defendant – where the first defendant was agent for the second defendant – where the plaintiffs claim that an employee of the first defendant impliedly represented that finance had been approved – where the second defendant had not approved finance – where the plaintiffs claim they suffered loss and damage because of misleading conduct arising out of the misrepresentation – whether an employee of the first defendant impliedly represented that finance had been approved – whether the plaintiffs relied on any such representation, to their disadvantage, in entering into the contract – whether the representation caused the loss.

Legislation

Commonwealth

Competition and Consumer Amendment (Competition Policy Review) Bill 2017
Amends the Competition and Consumer Act 2010 to: clarify that 'competition' includes competition from goods and services that are capable of importation, in addition to those actually imported; confine the application of cartel conduct provisions to conduct affecting competition in Australian markets; change the scope of the joint venture exceptions; remove provisions relating to the anti-competitive disclosure of pricing and other information (known as price signalling); prohibit a corporation from engaging in a concerted practice that has the purpose, effect or likely effect of substantially lessening competition; remove the separate prohibition on exclusionary provisions; define 'contract' and 'party' to include covenants; increase the maximum penalty applying to breaches of the secondary boycott provisions; prohibit third line forcing only where it has the purpose, effect or likely effect of substantially lessening competition; enable a corporation or person to notify the Australian Competition and Consumer Commission (ACCC) of resale price maintenance conduct, as an alternative to seeking authorisation from the commission for such conduct; provide an exemption from the resale price maintenance prohibition for conduct between related bodies corporate; consolidate authorisation provisions, including those relating to mergers, into a single authorisation process; grant the ACCC with 'class exemption' and 'stop notice' powers; provide for reviews by the Australian Competition Tribunal of merger authorisation determinations by the ACCC; enable a party bringing certain proceedings to rely on both admissions of fact and finding of fact made in certain other proceedings; extend the ACCC's power to obtain information, documents and evidence in relation to investigations of alleged contraventions or court enforceable undertakings and merger authorisation determinations, and introduce a 'reasonable search' defence in relation to the failure or refusal to comply with a notice to produce such documents; implement recommendations made by the Productivity Commission in relation to the National Access Regime; streamline administration of the Act, particularly in relation to requirements of the Australian Consumer Law; and make consequential amendments; and Radiocommunications Act 1992 to make consequential amendments. Senate: Introduced and read a first time 06 September 2017; Second reading moved 06 September 2017.

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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