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.