Australia: Competition & Consumer Law News – 8 November 2017

Last Updated: 10 November 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2018

In the media

Australian Unity to compensate some members over dental benefits
Following an ACCC investigation, Australian Unity has agreed to pay compensation to members who held couple and family policies in 2015 that were likely to have been misled about the dental benefits they could claim from their policy. It is expected that Australian Unity will pay at least $620,000 in compensation to affected consumers (03 November 2017). More...

Second Competition Law Reform Act receives assent
The second Act that forms a part of the major reform to competition law that was begun by the Harper Review has received assent. The Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) (the Competition Policy Review Act) received assent on 27 October 2017 as Act 114 of 2017, following the enactment on 23 August 2017 of the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (Cth) (the Misuse of Market Power Act) as Act 87 of 2017 (01 November 2017). More...

Recent new entrants will increase competition at container ports
The ACCC's annual Container Stevedoring Monitoring Report has stated that while stevedoring operating profits per TEU have risen by over 25 per cent in 2016-17, competition levels are set to increase as there are now three stevedores competing at the nation's three largest container ports. The ACCC's report is available here (01 November 2017). More...

ACCC welcomes 5G but flags competition issues
The ACCC is rethinking the way it approaches spectrum competition issues ahead of the upcoming 5G auction. ACCC Chairman Rod Sims said Companies put a value on preventing their competitors or potential competitors getting access to spectrum. This means that a large part of the value of spectrum is actually in reducing competition (01 November 2017). More...

ACCC issues extensive report on communications market
The ACCC has published its draft report detailing its market study of the communications sector, which includes 29 recommendations spanning a wide range of competition and consumer issues in communications markets. The market study found that there is strong price competition between the major service providers despite considerable concentration in both fixed and mobile retail markets (30 October 2017). More...

Crunch Tel warned
Telecommunications service provider, Crunch Tel Pty Ltd, has been formally warned for transferring customers to its service without their consent. The Telecommunications Consumer Protections Code contains the rules that providers must follow when transferring customers—including when those transfers happen as a result of one service provider selling its business to another (27 October 2017). More...

Queensland passes laws to stop retirement villages exploiting elderly residents
New legislation passed in State Parliament will stop retirement village operators from gouging elderly Queenslanders and will enforce simplified contracts, Housing Minister Mick de Brenni says (26 October 2017). More...

Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165
In their judgment, Australian Olympic Committee, Inc v Telstra Corporation Ltd [2017] FCAFC 165, Justices Greenwood, Nicholas and Burley held that the primary judge did not make any error of law in finding that Telstra was not misleading consumers into believing that it was the official sponsor of the Australian Olympic Committee (AOC,) in its presentation of a number of ads regarding the Rio Olympic Games (26 October 2017). More...

MSY Technology ordered to pay penalties of $750,000 for consumer guarantee misrepresentations
MSY Technology operates 28 retail stores across Australia and online, selling computers, computer parts, accessories and software. MSY Technology admitted that it made false or misleading representations on the MSY website, and in oral and email communications to consumers about their rights (25 October 2017). More...

Guidance for Harper reforms
The ACCC has issued guidelines for consultation on the new misuse of market power, concerted practices and authorisation provisions. These reforms recently passed Parliament and stem from recommendations of the Competition Policy Review (25 October 2017). More...

Issues paper for northern Australia insurance inquiry
The ACCC has released an issues paper for its inquiry into the supply of residential building, contents, and strata insurance in northern Australia. The ACCC is seeking feedback from interested stakeholders on a range of issues, including: Insurance pricing, the key cost components of insurance, and insurer profitability and the competitiveness of markets for insurance in northern Australia. Submissions are due on 21 December 2017 (24 October 2017). More...

In practice and courts, published reports

ACCC annual report 2016-2017
The ACCC's 2016-2017 annual report was tabled in Parliament (23 October 2017).
In relation to competition law and policy, the report highlights: "the first criminal cartel case, describing it as a 'watershed moment in Australia's competition law history'; the Ramsey Health care proceedings alleging misuse of market power and exclusive dealing; High Court success in Flight Centre and the Air NZ/Garuda Indonesia cases and market studies into 'sectors including new car retailing, dairy, regional petrol prices, and gas and electricity affordability'. More...

Evolution or revolution? Why competition matters for 5G (Speech at RadComms 2017, 1 November 2017)
ACCC Chairman, Rod Sims, has welcomed the upcoming auction of 5G, but has also flagged some competition concerns in a speech delivered at the RadComms conference. More...

Communications sector market study: draft report
The ACCC published draft report detailing its market study of the communications sector, which includes 29 recommendations spanning a wide range of competition and consumer issues in communications markets. The ACCC is seeking comments until 8 December 2017. A final report is expected early 2018. More...

ACCC interim guidance on Harper reforms
The ACCC has issued the following three 'interim' guidelines addressing some of the key changes that will be brought about by the Harper Reforms:
Interim guidelines on concerted practices
Interim guidelines on section 46 reforms
Guidelines and interim forms for merger and non-merger authorisations
The ACCC is consulting on these guidelines, with submissions due by 24 November 2017 (25 October 2017).

ACCC Interim guidelines on concerted practices consultation
In the coming weeks the Australian Government will implement reforms to the Competition and Consumer Act 2010 (CCA) prohibiting parties from engaging in a concerted practice that has the purpose, effect, or likely effect of substantially lessening competition. The ACCC have prepared interim guidelines to help businesses understand and comply with the law. Submissions are due by 24 November 2017. More...

ACCC Interim guidelines on section 46 reforms consultation
Important reforms to section 46 of the Competition and Consumer Act 2010 (CCA) will come into effect in the coming weeks. Under these reforms a firm with a substantial degree of market power is prohibited from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition in a market. Submissions are due by 24 November 2017. More...

ACCC 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'. A final decision is expected on 16 November 2017. (ACCC media release) More... 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... Make an online submission

Acts receive Royal Assent
The main Harper Bill - the Competition and Consumer (Competition Policy Reform) Bill 2017 received Royal Assent last Friday, 27 October 2017. The main provisions come into operation the day after six months from receiving Royal Assent, unless an earlier date is proclaimed. Subject to the fixing of an earlier date it will come into operation on 28 April 2018.

On 30 October the Competition and Consumer Amendment (Abolition of Limited Merits) Act 2017 also received Royal Assent.

Cases

Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170
ARBITRATION – appeal from interlocutory decision on an application under s 8(1) of the Commercial Arbitration Act 2010 (NSW) seeking an order that the parties to the proceeding be referred to arbitration in respect of the subject matter of various deeds – whether the primary judge erred in ordering a proviso trial under s 8(1).
ARBITRATION – whether the arbitration contemplated by the arbitration agreements is commercial for the purposes of the Commercial Arbitration Act 2010 (NSW) – meaning of the phrase "commercial arbitration" – whether parties need to demonstrate the existence of a pre-existing commercial relationship between the parties to the dispute – whether a family or domestic dispute and the arbitration to resolve it can also be characterised as a commercial dispute.
ARBITRATION – proper approach to determination of an application under s 8(1) of the Commercial Arbitration Act 2010 (NSW) – proper approach to construction of an arbitration agreement – whether the disputes in question are the subject of an arbitration agreement – where arbitration agreements refer to "any dispute under this deed" – whether that phrase should be read as limited to those disputes governed or controlled by the deed – breadth of the potential meaning of entire phrase "any dispute under this deed".
ARBITRATION – whether parties that are not parties to the deeds and arbitration agreements can be referred to arbitration because they claim "through or under" entities who are parties – definition of party within s 2(1) of the Commercial Arbitration Act 2010 (NSW) – whether the claims against third parties are part of the same "matter" within s 8(1) of the Commercial Arbitration Act 2010 (NSW) – circumstances in which claims against third party companies can be stayed under the Court's general power to stay proceedings.
ARBITRATION – principles of separability and competence – whether any of the arbitration agreements can be said to be null and void, inoperative or incapable of being performed – whether the requisite separate attack on the arbitration agreement present – character of the necessary attack on the arbitration agreement for the proviso of s 8(1) – construction of phrase "null and void" – circumstances in which the Court should hear the separate attack or permit the arbitral tribunal to hear the attack.
CONSTITUTIONAL LAW – Constitutional validity of s 8(1) of the Commercial Arbitration Act 2010 (NSW) – whether s 8(1) is picked up by s 79 of the Judiciary Act 1903 (Cth) – whether allowing the arbitrator to decide the proviso challenge under s 8(1) impermissibly confers judicial power upon the arbitrator. Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)), ss 18, 20.
The causes of action pleaded are false and misleading conduct, fraudulent concealment, misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the TP Act) and Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law), material non-disclosure, unconscionable conduct, undue influence, duress, breach of trust and fraud on a power. Both Ms Rinehart and Mr Hancock plead that they are entitled to rescind, and, by their pleading, do rescind, the various deeds to which they are a party. They also seek declarations that the deeds, and the arbitration agreements, are void.

Australian Securities and Investments Commission, in the matter of Golden Financial Group Pty Ltd (formerly NSG Services Pty Ltd) v Golden Financial Group Pty Ltd (No 2) [2017] FCA 1267
CORPORATIONS LAW – where defendant was found to have contravened ss 961K(2) and 961L of the Corporations Act 2001 (Cth) – where parties agreed in relation to proposed pecuniary penalties and costs orders – whether proposed relief is appropriate in all the circumstances. Competition and Consumer Act 2010 (Cth), s 76, Sch 2, Australian Consumer Law, s 224; Corporations Act 2001 (Cth), ss 961B, 961G, 961H, 961J, 961K, 961L, 1317G.

Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2017] FCA 1251
CONSUMER LAW – misleading or deceptive conduct – consumer guarantee provisions – where representations made about the existence, exclusion or effect of a guarantee, right or remedy – where contraventions admitted – where agreed orders and pecuniary penalty – whether proposed relief appropriate – application allowed. Australian Consumer Law ss 18, 29(1)(m), 29(1)(n), 64, 224, 232, 246; Competition and Consumer Act 2010 (Cth) Sch 2.

Australian Olympic Committee, Inc v Telstra Corporation Limited [2017] FCAFC 165
CONSUMER LAW – appeal – misleading and deceptive conduct – where print, electronic and television advertisements and promotional material used to promote a mobile phone application prior to the 2016 Rio Olympic Games – where advertisements used to promote partnership with Olympic sponsor – where advertiser is not an Olympic sponsor – whether advertisements and promotional material would mislead or deceive consumers into believing a sponsorship or sponsorship-like relationship existed– appeal dismissed.
STATUTES – Olympic Insignia Protection Act 1987 (Cth), s 36 – appeal – whether conduct breached s 36 – use of protected Olympic properties in advertisements and promotional material – whether use of Olympic properties would indicate the existence of sponsorship or sponsorship-like relationship to a "reasonable" person – appeal dismissed.

TJQ Pty Ltd v Lunch Hour Australia Pty Ltd (Civil Claims) [2017] VCAT 1705
Sale of business – misleading and deceptive conduct – section 18 Australian Consumer Law – conduct of agent – section 196 Australian Consumer Law and Fair Trading Act 2012 (Vic) – damages. The Respondents shall pay to the Applicant the sum of $7169.50. All parties shall pay their own costs.

Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224
CONSUMER LAW – unfair contract terms – where respondent provided waste management services – where respondent had entered into 26,000 contracts, including small business contracts, since applicable provisions commenced – where ACCC contended that certain terms of the contracts were "unfair" within the meaning of s 24 of the Australian Consumer Law – where ACCC and respondent reached agreement in relation to proposed declarations and injunctions – proposed declarations and orders made. Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 23, 24, 25, 27, 232, 233, 250.

Commissioner for Consumer Protection and Murray [2017] WASAT 137
Real estate agent - Disciplinary action - Code of Conduct - Misleading conduct - Notification of change of address - Real Estate and Business Agents Act 1978 (WA), s 44(3), s 51(2), s 102(1)(b).

Westpac v Anderson [2017] VCC 1519
CONTRACT – plaintiff seeking to recover judgment debt - whether plaintiff entitled to debit enforcement expenses from defendant's loan account without telling her first – was the defendant entitled to cease paying her monthly repayments because of the plaintiff's conduct – did the plaintiff breach any implied term to act reasonably and in good faith.
UNCONSCIONABILITY – whether the plaintiff acted unconscionably under the Australian Securities and Investments Commission Act 2001 (Cth).
PRACTICE AND PROCEDURE – did the plaintiff engage in an abuse of process by later reversing the disputed payment and making a second summary judgment application.
LOSS AND DAMAGE – losses claimed by the defendant, including loss of income, not caused by any breach of contract or unconscionable conduct on the part of the plaintiff.
Australian Securities and Investment Commission Act 2001 (Cth); Civil Procedure Act 2010 (Vic); Competition and Consumer Act 2010 (Cth).

Legislation

Competition and Consumer Amendment (Competition Policy Review) Bill 2017
Finally passed both Houses 18 October 2017 Assent Act no: 114 Year: 2017 27 October 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.

Competition and Consumer Amendment (Competition Policy Review) Regulations 2017
03/11/2017 - This instrument makes consequential amendments to the Competition and Consumer Regulations 2010 following amendments made to the Competition and Consumer Act 2010 by a number of amending Acts (primarily the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 and the Competition and Consumer Amendment (Competition Policy Review) Act 2017).

Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017
Finally passed both Houses 16 October 2017 Assent Act no: 116 Year: 2017 30 October 2017.
Amends the Competition and Consumer Act 2010 to: prevent the Australian Competition Tribunal from reviewing decisions made under the National Electricity Law, the National Gas Law and the National Energy Retail Law, other than decisions relating to the disclosure of confidential or protected information; and provide that decisions made by the Australian Energy Regulator under those laws are not subject to merits review by any other state or territory body.

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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