Australia: Competition & Consumer Law News – 9 October 2017

Last Updated: 15 October 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2018

In the media

Brisbane drivers at mercy of price gouging servos
RACQ has condemned Brisbane service stations for ripping off motorists, after it was revealed drivers were charged $400 million more for fuel over the past eight years than those in other major capital cities (09 October 2017). More...

Full Federal Court orders $20.6 million penalties against Cement Australia companies
The Full Court of the Federal Court has upheld an ACCC appeal, and dismissed a cross appeal by Cement Australia, against the penalties imposed on Cement Australia Pty Ltd and its related companies for making and giving effect to anti-competitive agreements (05 October 2017). More...

ACCC delays final report into dairy industry until 30 April
The date for final reporting of the ACCC's inquiry into competitiveness of prices, trading practices and supply chain in the Australian dairy industry has been pushed back by five months. The interim report is now expected to be released in November and final report is due 30 April 2018 (05 October 2017). More... (ACCC Dairy Inquiry) More...

Consumers 'gouged' by gas companies, ACCC launches price crackdown
The competition watchdog will attempt to avert an 'energy crisis' by cracking down on the prices that gas companies are charging customers (04 October 2017). More...

National Warranty Company agrees to change extended warranties
Davantage Group Pty Ltd trading as National Warranty Company (NWC) has agreed to make changes to its 'Extension to Manufacturer's Warranty'. In particular, the ACCC was concerned that the product name, 'Extension to Manufacturer's Warranty', had the potential to mislead consumers into thinking they received cover on the same terms as the vehicle manufacturer's warranty (28 September 2017). More...

Belle Gibson fined $410,000 for false charity promises
Federal court orders disgraced wellness blogger to pay penalty after she sold a cookbook and app after claiming to have cured cancer naturally. The disgraced wellness blogger Belle Gibson has been ordered by the federal court in Melbourne to repay $410,000 to the state of Victoria (28 September 2017). More...

Gibson fined $410,000 for 'misleading and deceptive conduct'
Gibson has been fined for five separate contraventions of the Australian Consumer Law Act. The $410,000 fine includes $90,000 for failing to donate proceeds from the sale of The Whole Pantry app, as publicly advertised; $50,000 for failing to donate proceeds from the launch of The Whole Pantry app (28 September 2017). More...
NOTE: In 2016, Penguin Australia agreed to pay Consumer Affairs Victoria $30,000 and include a prominent warning notice on any future books making statements about natural therapies, as part of an 'enforceable undertaking' following its publication of the book

Full Federal Court dismisses ACCC's appeal in Australian Egg Corporation case
The ACCC had alleged that at an 'Egg Oversupply Crisis Meeting', held by AECL and attended by egg producers, the AECL and the other respondents had attempted to induce egg producers to enter into a cartel arrangement to reduce the supply of eggs, in response to a perceived oversupply of eggs. The ACCC appealed to the Full Federal Court, who dismissed the ACCC's appeal (25 September 2017). More...

Interim gas report finds substantial shortfall for east coast likely in 2018
The interim report projects a supply shortfall in the east coast gas market of up to 55 petajoules (PJ) in 2018, which could be as high as 108 PJ if domestic demand is higher than expected," ACCC Chairman Rod Sims said.. "Gas and gas-powered generators are also an important part of electricity generation, so higher gas prices feed in to higher electricity prices, leading to a double hit for many." (25 September 2017). More...

ACCC appeals LG decision
The ACCC had alleged that LG made false or misleading representations to certain consumers about their right to a repair, replacement or refund in relation to faulty LG televisions. The Court dismissed the ACCC's allegations, finding that LG was under no obligation to inform these consumers of the existence of the Australian Consumer Law remedies available to them because the enquiry made by consumers related only to the manufacturer's warranty (25 September 2017). More...

ACCC chief backs inquiry into tech giants' market dominance
The Australian Competition and Consumer Commission chairman, Rod Sims, says it is a good idea to examine the market dominance of the tech giants Google and Facebook, and consider the implications for funding traditional media organisations (22 September 2017). More...

In practice and courts, published reports

Gas inquiry 2017-2020: interim report
Australian Competition and Consumer Commission - The ACCC has released its first interim report of its inquiry into gas supply arrangements in Australia, which focuses on likely supply and demand conditions in the east coast gas market for 2018 (25 September 2017). More...

NSW Fair Trading: Inquiry into NSW retirement villages
The inquiry will review the protections offered to residents, and ensure that Fair Trading has the necessary powers to make sure retirement village operators are complying with the law. The investigation will look at concerns raised about the fairness and transparency of business practices of retirement villages in NSW. The final report and recommendations from the inquiry are due to be completed by 15 December 2017. More... More....

Cases

Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148
CONSUMER LAW – contravention of s 21 of Australian Consumer Law (Vic) – pecuniary penalties under s 224 of Australian Consumer Law (Vic) – relevant considerations for assessment of pecuniary penalty – whether publication orders should be made – considerations where respondent does not participate in proceedings. Australian Consumer Law (Vic), ss 18, 21, 224, 226, 246, 247. Australian Consumer Law and Fair Trading Act 2012 (Vic), s 134(2)(a). Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law (Cth), ss 18, 21.

Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150
COMPETITION – merger clearances and authorisations – authorisation granted by Australian Competition Tribunal for merger – Tribunal satisfied that proposed acquisition would result, or be likely to result, in such a benefit to public that acquisition should be allowed to occur – proper construction of s 95AZH of Competition and Consumer Act 2010 (Cth) – consideration of relationship between test in s 95AZH and concept of 'substantial lessening of competition' in s 50.
ADMINISTRATIVE LAW – whether Tribunal misconstrued and misapplied s 95AZH by importing test from s 50 – whether failure to take into account relevant considerations – whether Tribunal erred in law by failing to deal with a central issue raised by party to application – whether Tribunal required to compare likely future state of competition with and without proposed acquisition – whether Tribunal required to assign lesser weight to benefits flowing from proposed acquisition not likely to be widely shared – whether Tribunal made irrational and illogical findings.

Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152
COMPETITION – consideration of an appeal by the Australian Competition and Consumer Commission against an order of the Federal Court dismissing a proceeding alleging a contravention of s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) by an industry body and others – where the primary judge found evidence established conduct by at least two respondents which could constitute an attempt in the requisite sense – where the primary judge also found that the respondents intended that the attendees at a certain meeting should take action to address and correct an oversupply of eggs – where the primary judge was not persuaded "to the requisite degree of persuasion" that the respondents intended that this action should be pursuant to an agreement or understanding involving reciprocal obligations.
PRACTICE AND PROCEDURE – where the Court on appeal is to consider an allegation that the primary judge erred in the inferences he drew or failed to draw from established primary facts – where the primary judge refused to draw an inference going to the intention of the respective respondents – where the ACCC's case was documentary and did not call any witnesses – where the primary judge did not wholly accept or reject the evidence of any respondent witness – where there were no challenges to the primary judge's findings as to credibility and reliability – where the matter under challenge is not a matter where there is only one right answer – whether, in the absence of a preponderance of view against that taken by the primary judge, the primary judge's refusal to draw an inference of intention should be disturbed. Competition and Consumer Act 2010 (Cth) ss 2A, 4, 44ZZRD, 44ZZRJ, 76, 84.

Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150
COMPETITION – merger clearances and authorisations – authorisation granted by Australian Competition Tribunal for merger – Tribunal satisfied that proposed acquisition would result, or be likely to result, in such a benefit to public that acquisition should be allowed to occur – proper construction of s 95AZH of Competition and Consumer Act 2010 (Cth) – consideration of relationship between test in s 95AZH and concept of 'substantial lessening of competition' in s 50.
ADMINISTRATIVE LAW – whether Tribunal misconstrued and misapplied s 95AZH by importing test from s 50 – whether failure to take into account relevant considerations – whether Tribunal erred in law by failing to deal with a central issue raised by party to application – whether Tribunal required to compare likely future state of competition with and without proposed acquisition – whether Tribunal required to assign lesser weight to benefits flowing from proposed acquisition not likely to be widely shared – whether Tribunal made irrational and illogical findings - Constitution s 92.

Stroppiana v Mackay Sugar Ltd [2017] QSC 217
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the Cane Supply and Processing Agreement between the parties is subject to the Sugar Industry Act 1999 (Qld) – where the respondent purported to vary provisions of the Cane Supply and Processing Agreement by agreement with bargaining representatives of growers – whether the Cane Supply and Processing Agreement can be varied without agreement and signatures of each individual grower.
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where a Cane Supply and Processing Agreement between the parties provides that "Other expense items that are deemed to be applicable to all sales of sugar" are to be deducted from cane payments under the agreement –whether the respondent may unilaterally deem a charge of $2 per tonne of cane for the operating cost, repair, improvement and maintenance of the respondent's infrastructure to be an expense applicable to all sales of sugar.

Director of Consumer Affairs Victoria v Gibson (No 3) [2017] FCA 1148
CONSUMER LAW – contravention of s 21 of Australian Consumer Law (Vic) – pecuniary penalties under s 224 of Australian Consumer Law (Vic) – relevant considerations for assessment of pecuniary penalty – whether publication orders should be made – considerations where respondent does not participate in proceedings. Australian Consumer Law (Vic), ss 18, 21, 224, 226, 246, 247. Australian Consumer Law and Fair Trading Act 2012 (Vic), s 134(2)(a). Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law (Cth), ss 18, 21.
PUBLIC NOTICE – ANNABELLE NATALIE GIBSON
Section 246 of the Australian Consumer Law (Victoria)
This Notice has been published pursuant to an Order of the Federal Court of Australia.
Following legal proceedings commenced by the Director of Consumer Affairs Victoria, the Federal Court of Australia found that Annabelle Natalie Gibson engaged in misleading or deceptive conduct by making representations in the promotion of "The Whole Pantry" book and mobile applications concerning her health. The Federal Court also found that Ms Gibson engaged in misleading or deceptive conduct and unconscionable conduct by making claims in the promotion of the "Whole Pantry" book and app claiming that certain proceeds of sales of the book and app were being given to charities and good causes.

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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