Australia: Competition & Consumer Law News – 6 December 2017

Last Updated: 11 December 2017
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, February 2019

In the media

Compass Claims to change advertising of its replacement vehicles for accidents
CompassCorp Pty Ltd trading as Compass Claims (Compass) will amend its advertising and sales practices following an investigation by the ACCC. The ACCC considered Compass was misrepresenting in brochures, its website and in phone calls that consumers who engaged Compass would not be liable for hire car charges or associated costs (01 December 2017). More...

Section 46 no defence for uncompetitive firms
Delivering a speech in Sydney, Mr Sims outlined how the recently legislated changes to the Competition and Consumer Act 2010 (CCA), especially s46, help the ACCC protect the competitive process by allowing firms, big and small, to compete on their merits. Under s46, firms with a substantial degree of market power are prohibited from engaging in conduct that has the purpose, effect or likely effect of substantially lessening competition (SLC) in a market (30 November 2017). More...

Dairy inquiry highlights power imbalances in supply chain
A mandatory code of conduct should be considered for the Australian dairy industry to address problems caused by bargaining power imbalances between processors and farmers, according to recommendations made by the ACCC in its interim report from its inquiry into the industry, published 30 November 2017. More...

ACCC takes action against Ashley & Martin for alleged unfair contract terms
The ACCC has instituted proceedings in the Federal Court against Ashley & Martin Pty Ltd alleging that clauses in its standard form contracts are unfair under the Australian Consumer Law and therefore void. The clauses which the ACCC alleges were unfair committed customers to paying the full contract price before the customer had a proper opportunity to consider medical advice about the treatment (29 November 2017). More...

ACCC takes action against Jayco
The ACCC has instituted proceedings in the Federal Court against Jayco Corporation Pty Ltd (Jayco), alleging it breached the Australian Consumer Law (ACL) by its conduct towards four customers who purchased defective Jayco caravans. The ACCC also alleges Jayco made false or misleading representations to the four affected customers about their rights to obtain a refund or replacements for their defective caravan, including that Jayco represented that it had no role or responsibility to provide a remedy such as a refund or replacement vehicle (29 November 2017). More...

Fastway Couriers (Perth) pays penalty for alleged Franchising Code breach
West Aust Couriers Pty Ltd, trading as Fastway Couriers (Perth), has paid a $9,000 penalty after the ACCC issued an infringement notice for alleged non-compliance with the Franchising Code of Conduct (Franchising Code). Fastway Couriers (Perth) has also provided the ACCC with a court enforceable undertaking to address the ACCC's concerns that it had made false or misleading representations regarding the future earnings of courier franchisees by advertising an "income guarantee" of $1,500 per week for 30 weeks to prospective franchisees (29 November 2017). More...

The sharing economy: know your rights, know the rules
As apps such as Uber, Airbnb and Airtasker become more popular, Victorians are being reminded about their rights under the Australian Consumer Law when it comes to the sharing economy. Businesses have a responsibility to their consumers to not engage in misleading or deceptive conduct such as: writing a fake review, asking or paying someone to write a fake review, writing a false review about a competitor or hiding negative customer reviews (27 November 2017) More...

Report on commission-based fundraising in the charity sector
The ACCC released an independent research report on commission-based fundraising in the charity sector, Research into the commission-based charity fundraising industry in Australia, as part of its 2017 compliance and enforcement focus on consumer issues arising from commission-based sales. The report found that some charities operated on a model in which third-party marketing firms earn fees for each donor that signs up from face-to-face or telemarketing approaches. The fee is commonly calculated by a multiple (typically eight to 17 times) of the monthly donation to which the donor commits (27 November 2017). More...

October complaints data released in time for Christmas shopping
NSW Fair Trading's Complaints Register October data was released with ticket reseller Viagogo again topping the list for the third month running. Viagogo was the subject of a public warning in late August, after numerous complaints relating to delayed delivery, event cancellations, heavily marked-up prices, hidden fees, and failure to provide refunds (23 November 2017). More...

Energy cartel laws waived for food processors desperate to reduce costs
A group of energy intensive food processors gain exception to cartel laws to tender for cheaper electricity and gas (23 November 2017). More...

AAMI slugged with $43,200 fine over misleading home building insurance ad
Suncorp Group's AAMI has paid $43,200 in penalties after the corporate watchdog raised concerns about false or misleading advertisements relating to its home insurance. The advertisements, on both AAMI's website and the radio, were promoting the Home Building Insurance 'Complete Replacement Cover' product, and stated the company would repair or rebuild an insured property regardless of the cost to the insurer (22 November 2017). More... penalised for misleading consumers
Hive Empire Pty Limited, trading as (Finder), has paid a penalty of $10,800 following the issue of an infringement notice by the ACCC for alleged false or misleading claims about the number of health insurance policies it compares (22 November 2017). More...

Information the key to read meat competition
ACCC Commissioner, Mick Keogh, spoke to the MLA Red Meat Industry Forum in Alice Springs. He highlighted concerns about transparency and future competitiveness of the cattle industry and referenced the ACCC's Cattle and Beef Market Study which recommended improving market information in order to improve competitiveness (22 November 2017). More...

In practice and courts, published reports

Dairy inquiry
The ACCC is conducting an inquiry into the competitiveness, trading practices, and transparency of the Australian dairy industry. On 28 September 2017 the Treasurer extended the reporting period for the inquiry. The ACCC released its interim report on 30 November 2017 and is seeking industry feedback. The ACCC must submit its report following the inquiry to the Treasurer by 30 April 2018. (Interim report) 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

New real estate reforms to better protect consumers
Minister for Better Regulation Matt Kean announced legislation to strengthen standards in the state's $15 billion-a-year real estate industry and better protect consumers in the property market. It's the first major review of the Property, Stock and Business Agents Act since it became law in 2002. Mr Kean said the proposed amendments would bolster training standards as well increasing transparency and accountability to put consumers first (21 November 2017). More...


Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190
CONTRACT – implied terms – implication of duty or obligation of good faith and reasonableness – franchise agreement – where franchisor had discretionary power to set maximum prices for products – where parties accepted that power subject to duty of good faith – scope of duty of good faith and reasonableness – whether franchisor was obliged to act reasonably in an objective sense.
NEGLIGENCE – franchise agreement – whether franchisor owed duty of care to franchisees in exercising power to set maximum prices for products – where franchisee alleged that franchisor owed franchisees a duty to exercise power so that franchisees could make, maintain or increase profits.
CONSUMER LAW – unconscionable conduct – franchise agreement – where franchisee alleged that franchisor had engaged in unconscionable conduct in setting maximum prices for products.
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 21, 22; Federal Court of Australia Act 1976 (Cth), ss 33H, 33ZC.

Seiko Epson Corporation v Calidad Pty Ltd [2017] FCA 1403
PATENTS – remanufacture of printer ink cartridges embodying a claimed invention – claim for infringement –whether an implied licence to import, sell and use patented goods is conferred upon sale without restriction – consideration of United Kingdom authorities – whether modifications to goods extinguishes any such implied licence – construction of terms of patents – application of construction to applicants' embodiment – comparison with respondents' embodiment – termination of licence arising from sale sub modo.
TRADE MARKS – claim for infringement – whether word "Epson" on respondents' goods is used in a trade mark sense.
TRADE MARKS – construction of s 148 of the Trade Marks Act 1995 (Cth) – whether respondents' conduct falls within s 148 – whether s 148 imposes a statutory duty and associated civil right of action for breach of said duty.
TRADE PRACTICES – whether use of word "new" to describe remanufactured goods is misleading or deceptive. CONTRACTS – breach of settlement deed – consideration of appropriate remedy. Competition and Consumer Act 2010 (Cth) Schedule 2 ss 18, 29.

Cahill v Kiversun Pty Ltd; Molonglo Group (Australia) Pty Ltd v Cahill & Anor [2017] VSC 641
CONTRACT – Vendor and purchaser – Whether binding agreement for the sale of land – validity of execution – Whether a conditional offer – Whether intention to be bound – Consideration – Construction of terms.
CONTRACT – Whether vendor disentitled from relying on non-compliance with condition by reason of prevention principle.
CONTRACT – Availability of specific performance – Appropriate form of order.
TRADE AND COMMERCE – Australian Consumer Law – Whether representations made and/or whether misleading or deceptive – Whether reliance in any event.

Mallet v Expedia Australia Pty Ltd (Civil Claims) [2017] VCAT 1911
Overseas holiday booked via a website – consumers unhappy with the condition of the resort – consumers assert that the website contained misleading and deceptive representations as to the quality of the resort, contrary to s18 of the Australian Consumer Law – consideration of whether the contents of the website were misleading and deceptive – identity of the entity which operated the website.

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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Ian Robertson
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