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.