Australia: Competition & Consumer Law News – 21 November 2017

Last Updated: 23 November 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, August 2018

In the media

New competition laws a protection against big data e-collusion
ACCC Chairman Rod Sims has outlined how the Harper competition reforms and the ACCC's establishment of an analytics unit will help protect consumers from incidents of e-collusion from the rise of big data. Mr Sims is confident that our laws, particularly with the addition of the new concerted practices provision under section 45 of the Competition and Consumer Act 2010, but also the new misuse of market power provisions, can deal with either situation if they substantially lessen competition (16 November 2017). More...

ACCC puts clothing retailers on notice
The ACCC has found some retailers may be misleading consumers about their rights under the Australian Consumer Law (ACL) after reviewing the online policies of several large Australian clothing retailers. The ACCC is engaging directly with 12 retailers to ask them to amend their online returns policies to avoid confusing or misleading consumers (16 November 2017). More...

Court finds Meriton misled and deceived consumers on TripAdvisor
The Federal Court has found that Meriton Property Services Pty Ltd, trading as 'Meriton Serviced Apartments' (Meriton), engaged in misleading or deceptive conduct in connection with the posting of reviews of its properties on the TripAdvisor website. The Court also held that Meriton's conduct was liable to mislead the public as to the nature, characteristics and suitability of purpose of its accommodation services (10 November 2017). More...

ACCC releases quarterly report on the NBN wholesale market
The ACCC has released its seventh quarterly National Broadband Network Wholesale Market Indicators Report for the period ending 30 September 2017. The ACCC says competition is increasing as more access seekers have built sufficient scale to directly connect with the NBN at more points of interconnection (POIs) (09 November 2017). More...

Telstra to compensate 42,000 customers for slow NBN speeds
Following an ACCC investigation, Telstra has admitted it may have contravened the Australian Consumer Law, and will compensate 42,000 customers who experienced slow NBN speeds (08 November 2017). More... (ACCC) More...

New laws help home buyers decide if the price is right
New underquoting laws introduced earlier this year mean agents must give prospective home buyers a clearer estimate of the price so they can have a fair go in an open and transparent property market (06 November 2017). More...

Aussie small business and consumers the winners as strengthened competition laws commence
The Turnbull Government's competition laws have commenced, levelling the playing field and delivering on major reforms to Australia's competition law to provide greater protections for small business and support competition in a dynamic economy. Key amendments coming into force include strengthening the prohibition against the misuse of market power (section 46) and replacing the never-used and unworkable price signalling provisions (06 November 2017). More...

In practice and courts, published reports

Harper Reforms commence
A date for commencement has been proclaimed and the Acts: Competition and Consumer Amendment (Competition Policy Review) Act 2017 and Competition and Consumer Amendment (Competition Policy Review) Act 2017 commenced on 6 November 2017, by the Governor-General.

ACCC: Interim guidelines on concerted practices: submissions
The ACCC has prepared interim guidelines to help businesses understand and comply with the law. The interim guidelines sets out how the ACCC proposes to interpret the new provision and describes the general approach we will take in investigating alleged contraventions. Feedback on the interim guidelines will assist in preparing a final version. Submissions are due by 24 November 2017. More...

Sharing Economy Platforms – Traders
Be transparent about the product or service you are advertising so there are no surprises to consumers. Traders must make sure reviews provided about their service or product are not misleading or fake. Customers have the right to expect the goods and services you provide comply with consumer law. You must comply with product safety obligations (13 November 2017). 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... More...

Heatwaves, homes & health: why household vulnerability to extreme heat is an electricity policy issue
Larissa Nicholls, Halley McCann, Yolande Strengers, Karyn Bosomworth; Centre for Urban Research (RMIT): 14 November 2017
This report provides evidence regarding potential financial and health implications of electricity pricing and 'price signal' messaging for heat vulnerable households. More...

Cases

Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305
CONSUMER LAW – misleading or deceptive conduct – conduct liable to mislead the public as to the nature, characteristics or suitability for their purpose of services – where respondent carried on serviced apartment business – where respondent's properties listed on the TripAdvisor website – where respondent participated in system called Review Express to solicit reviews from guests who had stayed at properties – where respondent masked email addresses of guests who had complained – where respondent withheld email addresses of guests where there had been a major service disruption – whether respondent's conduct had effect of reducing the number of negative reviews – whether respondent's conduct likely to mislead or deceive – whether respondent's conduct liable to mislead the public as to the nature, characteristics or suitability for purpose of accommodation services.
EVIDENCE – hearsay – business records – where respondent subscribed to online service that collected and analysed guest reviews from the internet – where respondent accessed the service and prepared reports containing such data – whether representations in reports covered by business records exception to hearsay rule. Competition and Consumer Act 2010 (Cth), s 139B, Sch 2, Australian Consumer Law, ss 18, 29, 33, 34, 155, 156, 224, 232, 246.

Primary Health Care Limited v Commonwealth of Australia [2017] FCAFC 174
TRADE MARKS – application for leave to appeal – Registrar of Trade Marks refused registration of trade marks – primary judge dismissed appeal – whether relevant services were indivisible or indistinguishable from the provision of clinical care to patients – whether trade mark inherently adapted to distinguish the services – ordinary signification of phrase 'primary health care' – identification of target audience for a trade mark – whether trade marks used to distinguish the relevant services – whether trade mark not capable of distinguishing appellant's goods or services – whether trade marks likely to deceive or cause confusion – whether trade marks contrary to law – appeal dismissed - Competition and Consumer Act 2010 (Cth) Sch 2, s 18.

Chaw v Jenkinson [2017] FCA 1292
CONSUMER LAW –Application for leave to appeal decision of Federal Circuit Court summarily dismissing application on grounds of abuse of process and no reasonable prospects of success – no appellable error identified – application for leave to appeal dismissed. Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 236.
Insofar as the applicant wished to bring a claim of misleading conduct against the director of a company now in liquidation, Coverall Services Pty Ltd, that is a claim that the applicant has already pursued unsuccessfully before the New South Wales Civil and Administrative Tribunal (NCAT). The applicant is not entitled to bring another claim on the same grounds before this Court in respect of the same alleged misleading conduct. To do so is an obvious abuse of process.

Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546
1. Judgment in favour of the plaintiffs against the first defendant in the sum of $804,703.55.
2. Judgment in favour of the plaintiffs against the second defendant in the sum of $477,013.45.
3. Judgment in favour of the plaintiffs against the third defendant in the sum of $467,950.00.
BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs.
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations.
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild.
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement.
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff's impecuniosity must be taken into account in determining what loss is reasonably foreseeable.
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation.
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants' breach.
Australian Consumer Law s 18; Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Home Building Act 1989 (NSW).

Legislation

ASIC Market Integrity Rules (Competition in Exchange Markets) Amendment 2017 (No. 1)
14/11/2017 - This instrument amends the ASIC Market Integrity Rules (Competition in Exchange Markets) 2011 to facilitate a proposal by Chi-X Australia Pty Ltd (Chi-X Australia) to admit a new class of financial product to quotation on the Chi-X Market under the Chi-X Operating Rules—Transferable Custody Receipts (TraCRs). Date of repeal 16/11/2017.

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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