Australia: Competition & Consumer Law News - 5 March 2018

Last Updated: 10 March 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, October 2018

In the media

ACCC flags concerns about Saputo-Murray Goulburn deal
The ACCC says its concerns around the proposed acquisition of the assets of Murray Goulburn by Saputo are solely in relation to Murray Goulburn's Koroit dairy plant in western Victoria. The ACCC view is that Saputo owning the Koroit plant would substantially lessen competition for the acquisition of dairy farmers' raw milk in the region (01 March 2018). More...

East coast gas market supply imbalance needs to be addressed
Australia's east coast gas market remains incredibly tight and users are paying for this with high prices and limited sources of competing supply. ACCC Chairman Rod Sims said "The southern shortfall means that gas produced in Queensland will need to be sent to the southern states to meet the needs of gas users in those states, adding costs of transport and weakening southern buyers' bargaining power to secure gas" (28 February 2018). More...

Power prices tipped to fall for regional Queenslanders
Network charges will decrease 5.5 per cent for households and 9.5 per cent for small businesses. This is a result of the Palaszczuk Government's intervention in 2015 directing Energex and Ergon Energy not to challenge the Australian Energy Regulator's decision. The QCA has also confirmed the Government's direction to Stanwell Corporation to adjust its bidding behaviour has also reduced wholesale electricity prices (28 February 2018). More...

Netgear likely misled customers
Networking equipment manufacturer Netgear will provide remedies and refunds to customers who were misled by its warranty and technical support representations, following action by the ACCC. Netgear admits that it is likely to have misled customers about the remedies they were legally entitled to under the Australian Consumer Law (27 February 2018). More...

ACCC seeking views on news and digital platforms inquiry
As part of its public inquiry into the impact of digital platforms on media and advertising markets in Australia, the ACCC is seeking feedback on whether digital platforms have bargaining power in their dealings with media content creators, advertisers or consumers and the implications of that bargaining power (26 February 2018). More...

Consumers urged to fight back against record retailers' margins
Average petrol prices in Australia's five largest cities increased significantly in the December 2017 quarter and hit their highest levels since 2015, according to the ACCC's latest quarterly petrol report. The ACCC's role in monitoring petrol prices was extended by the Treasurer in December 2017. This monitoring role largely exists so that the ACCC can assist consumers navigate this complex and fluctuating market. The ACCC does not have the power to set prices or margins (23 February 2018). More...

Antitrust: Commission fines maritime car carriers and car parts suppliers a total of €546 million in three separate cartel settlements
In three separate decisions, the European Commission has fined four maritime car carriers €395 million, two suppliers of spark plugs €76 million, and two suppliers of braking systems €75 million, for taking part in cartels, in breach of EU antitrust rules.. During its investigation, the Commission cooperated with several competition authorities around the world, including in Australia, Canada, Japan and the US (21 February 2018). More...

ACCC focusses on energy, broadband, net economy and financial services in 2018
This year, the regulator will focus on consumer issues in broadband services and energy, competition in the financial services and commercial construction sectors, systemic consumer guarantee issues, and conduct that may contravene the new misuse of market power and concerted practices provisions (20 February 2018). More...

The markets the ACCC will be watching closely
The Australian Competition and Consumer Commission (ACCC) has laid out its priorities for 2018, vowing to make use of new powers and resources as it targets the car, energy and broadband industries (20 February 2018). More...

ACCC puts big business on notice as larger fines for consumer breaches tops 2018 priority list
The ACCC described planned bigger fines for big business as the key to changing corporate culture, as it revealed its top priorities for the year. Under new laws before Parliament, the penalty for consumer breaches by a company will rise from $1.1 million to $10 million, or 10 per cent of turnover. Fines for individuals will increase from $220,000 to $500,000 (20 February 2018). More...

ACCC appeals Cussons decision
The ACCC has appealed from the Federal Court's decision late last year to dismiss the ACCC's proceedings against PZ Cussons Australia Pty Ltd (Cussons). The ACCC took action against Cussons in 2013, alleging Cussons had engaged in cartel conduct by arriving at, and giving effect to, an understanding with two other laundry detergent manufacturers to cease supplying standard concentrate laundry detergents in early 2009, and supply only ultra concentrates from that time (20 February 2018). More...

Australia may be engaging in 'free trade' but it's becoming more protectionist too
According to international trade law practitioners, "dumping duties at high rates will give the Minister an unprecedented price-fixing power over imported products, to the extent that foreign exporters and their Australian importers may be unable to compete in Australian markets" (20 February 2018). More...

In practice and courts, published reports

ACCC remarks: Competition in the Australian Financial System
The ACCC has welcomed the Productivity Commission's draft report into Competition in the Financial System at a public hearing. At the public hearing, Marcus Bezzi (Executive General Manager (Enforcement & Compliance Division)) focused his remarks on: Competition Advocacy; The ACCC's Financial Services Unit and 'Embedding greater transparency in decision-making and a commitment to competition' (28 February 2018). More...

ACCC digital platforms inquiry
The ACCC is looking forward to hearing the views of consumers, media organisations, digital platforms, advertising agencies and advertisers after outlining the key issues it will be considering in its digital platforms inquiry. Submissions in response to its issues paper close on 3 April 2018. The ACCC will issue a preliminary report into its findings in December 2018. Consumers may provide feedback to the inquiry more informally via the ACCC consultation hub (26 February 2018). More...

Proposed acquisition of the assets of Murray Goulburn by Saputo
The ACCC outlined its concerns in a Statement of Issues paper and is seeking responses from interested parties by 13 March. The ACCC invites further submissions from interested parties in response to the Statement of Issues by 13 March. The ACCC's final decision is due on 29 March. The Statement of Issues is available on the ACCC's public register. More...

2018 ACCC Compliance and enforcement policy and priorities
Australian Competition and Consumer Commission: 20 February 2018
This year, the ACCC will focus on consumer issues in broadband services and energy, competition in the financial services and commercial construction sectors, systemic consumer guarantee issues, and conduct that may contravene the new misuse of market power and concerted practices provisions. (APO) More... (ACCC) More...

National Information Standard on free range eggs
The ACCC has issued guidance on the new National Information Standard on free range eggs. The Standard will apply to all egg producers who use "free range" claims from 26 April 2018. Note: While the ACCC has offered its guidance, the guide acknowledges that only a court can provide a definitive ruling on compliance with the Standard. Until there is enforcement action taken by the ACCC which is heard before the courts, egg producers will need to rely mostly on a 'common sense approach' and usual principles of interpretation.

Competition Law Symposium
The symposium, Cartels, Optimal Enforcement and Theories in Competition Law, will be held in Brisbane on 27 March 2018. The program, which can be downloaded here, features keynote speakers from around the world.

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...

Cases

Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2018] FCA 155
CONSUMER LAW – credit contracts with consumers – s128, s129 and s130 of the National Consumer Credit Protection Act 2009 (Cth) – assessment of credit – appropriateness of penalty – considerations to take into account in setting penalties – multiple contraventions - National Consumer Credit Protection Act 2009 (Cth).

Chowder Bay Pty Ltd v Paganin [2018] FCAFC 25
CONSUMER LAW – whether the primary judge erred in rejecting a claim that the respondents engaged in misleading or deceptive conduct under s52 of the Trade Practices Act 1974 (Cth) – where appellants invested in a joint venture financed by a loan facility – whether valuations prepared by the third and fourth respondents for the bank providing the facility were misleading or deceptive on the basis pleaded.
CONSUMER LAW – whether the primary judge erred in finding that the appellants did not suffer loss or damage pursuant to s82 of the Trade Practice Act 1974 (Cth) – contention as to whether appellants would have been entitled to recover a proportion of legal costs incurred in related proceedings as found by the primary judge.
EVIDENCE – whether the primary judge erred in finding that there was a failure by the appellants to prove that the bank relied on representations made as to value contained in valuations – where no bank witnesses were called in the appellants' case but business records were tendered without objection and subject to no limitation.

Shah v Hagemrad [2018] FCA 91
CONSUMER LAW – whether first and second respondents engaged in misleading or deceptive conduct in connection with the sale by them of a franchise business to the first applicant – whether first applicant was induced to purchase business by misrepresentations with respect to sales made.
DAMAGES – whether first and second respondents' conduct caused the first applicant loss – whether first applicant entitled to recover difference between the price paid for the business and its true value at the time of purchase – assessment of true value of business at time of purchase.
EVIDENCE – significance of rejection of first respondent's evidence – what inferences may be drawn in circumstances where key aspects of first respondent's evidence disbelieved – whether disbelief in the evidence that one state of affairs exists supports the existence of another state of affairs.
Competition and Consumer Act 2010 (Cth) s87CC(1)(b); Corporations Act 2001 (Cth) s471B; Federal Court of Australia Act 1976 (Cth) s51A; Federal Court Rules 2011 (Cth) r30.21.

Kobelt v Australian Securities and Investments Commission [2018] FCAFC 18
CONSUMER LAW – whether the primary judge erred in finding that the appellant contravened s29(1) of the National Consumer Credit Protection Act 2009 (Cth) by engaging in credit activity within the meaning of s6(1) of the National Credit Act when selling second-hand vehicles by way of a book-up without holding a licence to engage in that credit activity – whether the purchase of second-hand motor vehicles under the appellant's book-up system fell within the terms of s11 of the National Credit Code (contained in Schedule 1 of the National Credit Act) – whether there was a charge for the appellant's provision of credit within s5(1)(c) of the National Credit Code.
CONSUMER LAW – whether the primary judge erred in finding that the appellant had contravened s12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) in that, in connection with the supply of financial services to customers, the appellant engaged in a system of conduct or pattern of behaviour which was unconscionable – whether the appellant's conduct was unconscionable within the meaning of s12CC(1) of the ASIC Act – where customers are indigenous residents of the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), and in most cases, have very limited or no assets, limited net income and low levels of financial literacy – where the book-up system is neither recent nor unique – where the book-up system has advantages to customers in terms of alleviating the disadvantages associated with demand sharing and "boom and bust" expenditure – where no undue influence or exerted undue influence – where no dishonest use of debit cards or personal identification numbers (PINs) – where no dishonest maintenance of records by the appellant – where customers have low levels of financial literacy, but basic understanding of the book-up system – where customers voluntarily enter into the book-up arrangements – where customers understand the basic elements of the book-up arrangements – where conduct is not predatory in the relevant sense.
CONSUMER LAW – whether the primary judge erred in granting an injunction against the appellant under s12GD(1) of the ASIC Act.
PRACTICE AND PROCEDURE – whether the orders made by the primary judge ought to be set aside – whether an order by the primary judge that the Amended Originating Application brought by the respondent ought to be dismissed.
Australian Consumer Law (Schedule 2 to the Australian Competition and Consumer Act 2010 (Cth)); Australian Securities and Investments Commission Act 2001 (Cth) ss 12CB, 12CC, 12GD; Evidence Act 1995 (Cth) s 140; National Consumer Credit Protection Act 2009 (Cth) ss 3, 6, 29, 131; National Credit Code ss 5, 11, 13, 17, 204.

Swiss Re International SE v David Simpson [2018] NSWSC 233
CONSUMER LAW – Competition and Consumer Act 2010 (Cth) – Schedule 2, ss18(1) and 236(1) – Misleading or deceptive conduct – plaintiff insurers claimed that they were induced to issue surety performance bonds for a publicly listed company by misleading or deceptive conduct on the part of the defendant individual officers of the company – misleading or deceptive conduct claimed to be representations and non-disclosures – no claim of accessorial liability – HELD: no misleading or deceptive conduct on the part of the defendants established – the alleged misleading or deceptive conduct was not causative of the plaintiffs' loss.

Legislation

Commonwealth

Competition and Consumer Amendment (Misleading Representations About Broadband Speeds) Bill 2018
Amends the Competition and Consumer Act 2010 to provide that, when a representation is made about the speed, quality or price of a broadband service, that representation must include information about typical speeds, typical busy periods and their impact on average speeds, and any other factors that may affect the performance of the service. House of Representatives Second reading moved 26 February 2018.

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2018
Amends the National Consumer Credit Protection Act 2009 to: impose a cap on the total payments that can be made under a consumer lease (known as rent-to-buy schemes); require small amount credit contracts (SACCs) (known as payday loans) to have equal repayments and payment intervals; remove the ability for SACC providers to charge monthly fees in respect of the residual term of a loan where a consumer fully repays the loan early; prevent lessors and credit assistance providers from undertaking door-to-door selling of leases at residential homes; introduce anti-avoidance protections; and increase penalties. House of Representatives Second reading moved 26 February 2018.

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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