Australia: Competition & Consumer Law News - 20 March 2018

Last Updated: 24 March 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

ACCC takes action against Equifax, formerly Veda
The ACCC has instituted proceedings in the Federal Court against credit reporting body, Equifax Pty Ltd (formerly Veda Advantage Pty Ltd), alleging breaches of the Australian Consumer Law (ACL). In all the circumstances, it is alleged that Equifax acted unconscionably in its dealings with vulnerable consumers including by making false or misleading representations, and using unfair tactics and undue pressure when dealing with people in financial hardship (16 March 2018). More...

Queenslanders reminded of their rights on World Consumer Rights Day
To mark World Consumer Rights Day on 15 March 2018, the Office of Fair Trading (OFT) has launched a new Resolving disputes and how to lodge a complaint video with tips for Queensland consumers about approaching a trader as well as outlining the OFT complaints process (15 March 2018). More...
AWB amends contract terms following ACCC concern
The ACCC welcomes AWB amending these contract terms, and reminds companies that they bear the responsibility of ensuring their standard form contracts comply with the unfair contract terms law. If the contracts don't comply, companies may be subject to investigation and potential enforcement action by the ACCC. The ACCC will continue to focus on addressing bargaining power imbalances in agriculture (14 March 2018). More...

Full Federal Court dismisses cartel appeal
The Full Federal Court of Australia has dismissed an appeal by electric cable manufacturer Prysmian Cavi E Sistemi S.R.L. (Prysmian) against a ruling that it engaged in cartel conduct in the supply of high voltage land cables. The Court ordered a penalty of $3.5 million (12 March 2018). More...

Queensland company Eco Boss and its directors fined almost $600,000 for misleading distributors
A Queensland company and its former directors have been ordered to pay nearly $600,000 after pleading guilty to 11 different counts of making false and misleading representations in relation to selling "exclusive" distribution licenses to other businesses (13 March 2018). More...

Hefty fine for misleading Aussie distributors
A company and its two Gold Coast directors were ordered to pay over $579,579 in fines, compensation, and court costs, by the Southport Magistrates Court on 12 March 2018 following an Office of Fair Trading (OFT) investigation under the Australian Consumer Law (ACL) (12 March 2018). More...

Gold Coast motor dealer fined for leading consumers to a dead end
A Gold Coast motor dealer was ordered to pay a total of $7,852 in fines and compensation by the Southport Magistrates Court following an Office of Fair Trading (OFT) investigation. Peter Stuart Mitchell, trading as Burleigh Cars in Burleigh Heads, pleaded guilty to two counts of accepting payment without supplying services and one count of making a false representation under the Australian Consumer Law (ACL). One of the transactions involved Mr Mitchell misleading the consumer about the existence of a warranty (12 March 2018). More...

VW emissions scandal: Carmaker says 'tough luck' to Australian drivers, ACCC tells court
VW is now arguing it has no case to answer in Australia, relying on the fact that approvals for the affected vehicles were obtained in Europe before they were exported to Australia. Australian motorists are suing VW and sister companies Skoda and Audi for misleading conduct, alleging that motorists have suffered financial loss due to the emissions scandal (05 March 2018). More...

Draft authorisation for dental services pricing
The ACCC is proposing to authorise health insurer HCF and participating dentists to agree on the maximum price that they will charge members for some services. As HCF is planning to establish its own clinics, authorisation has been sought to avoid contravening the cartel laws (05 March 2018). More...

Activ8me pays penalty for misleading claims about ACCC
Telco provider Australian Private Networks Pty Ltd, trading as Activ8me, has paid a penalty of $12,600 after the ACCC issued an Infringement Notice for alleged false and misleading representations. It's alleged Activ8me represented that its internet services were endorsed or approved by the ACCC as being superior to those offered by other providers, when this was not the case (05 March 2018). More...

National real estate agency enters into enforceable undertaking
A national real estate agency has entered into two enforceable undertakings with the Office of Fair Trading (OFT), for alleged breaches of the Australian Consumer Law and the Property Occupations Act 2014 (05 March 2018). More...

Rio Tinto and a former CEO are in court accused of 'misleading and deceptive' conduct
Rio Tinto, its former CEO Tom Albanese and CFO Guy Elliott now find themselves in an Australian court facing accusations of misleading or deceptive conduct over a coal company acquisition and valuation. The Federal Court proceedings launched by ASIC relate to statements in the Rio annual report for 2011 (02 March 2018). More...

Review of the Food and Grocery Code of Conduct
The Turnbull Government has released terms of reference for a review of the Food and Grocery Code of Conduct, and has announced that Professor Graeme Samuel AC will lead the review. The review is intended to ensure that the Food and Grocery Code is working effectively as the first prescribed voluntary code under the Competition and Consumer Act 2010 (02 March 2018). More...

Woolworths allegedly misleads on environmental claims
The ACCC has taken action against Woolworths Limited (Woolworths) in the Federal Court, alleging that the environmental representations Woolworths made about its 'W Select eco' picnic products were false, misleading or deceptive, in contravention of the Australian Consumer Law (02 March 2018). More...

In practice and courts, published reports

Residential mortgage price inquiry: interim report
Australian Competition and Consumer Commission: 15 March 2018 The opaque pricing of discounts offered on residential mortgage rates makes it difficult for customers to make informed choices and disadvantages borrowers who do not regularly review their choice of lender, this report by the ACCC has found. More...

Clarification, simplification and modernisation of the consumer guarantee framework
Opened 9 Mar 2018; Closes 23 Apr 2018
In March 2017, CAANZ presented the Final Report of the ACL Review (the Review). The Review identified ongoing difficulties with the operation of the consumer guarantee provisions, and proposed a number of amendments to the ACL, to assist with further clarification, simplification and modernisation of the law. This Consultation RIS is comprised of four chapters, each of which addresses the proposals which are the subject of this Consultation RIS. 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. More...

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


Prysmian Cavi E Sistemi S.R.L. v Australian Competition and Consumer Commission [2018] FCAFC 30
COMPETITION – alleged contravention of Trade Practices Act 1974 (Cth) – price fixing and market sharing – where relevant markets are for land cables and submarine cables in Australia – where alleged overarching international cartel arrangement or understanding – whether subsequent alleged arrangement or understanding relating to a tender on a specific project contravened Act – whether subsequent alleged arrangement or understanding gave effect to alleged overarching cartel arrangement or understanding – whether participation of one cartel member in a specific project was necessary for contraventions by other members – whether issuing a price guidance and submitting a tender gave effect to alleged arrangements or understandings.
PRACTICE AND PROCEDURE – natural justice – whether findings of trial judge went beyond the case pleaded at trial.

Vanguard Financial Planners Pty Ltd & Anor v Ale & Ors [2018] NSWSC 314
CONTRACT – construction – whether the Court can have regard to prior negotiations which indicate parties' subjective intention in construing contract – implied terms – whether term is necessary for business efficacy or so obvious that it goes without saying – whether term is to be implied into the contract. CONTRACT – repudiation – whether party has indicated a refusal to perform the contract – whether acceptance of repudiation was communicated to the promisor. CORPORATIONS – management and administration – duties and liabilities of officers of corporation – claim for breach of statutory duties under Corporations Act 2001 (Cth) ss180, 181, 182 and 183 – duty of care and diligence – duty to act in good faith in the company's best interests – duty to not improperly use position to gain advantage or cause detriment to company – duty to avoid improper use of information – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether conduct of Defendants amounted to breach of statutory duties. EQUITY – general principles – fiduciary obligations – where business venture has been consensually terminated – whether parties to venture owe fiduciary duties to one another – where several expenses not apportioned between group companies in inter-company loan account – whether expenses paid by company in breach of duty – whether director of company breached no conflict and no profit duties – whether director of company breached best interests and proper purposes duties – whether director of company breached equitable duty of confidentiality. TRADE PRACTICES – application of Restraints of Trade Act 1976 (NSW) s4 – where contractual restraint of trade in broad terms – whether restraint of trade is void for breach of public policy. TRADE PRACTICES – misleading or deceptive conduct claim under s18 of the Australian Consumer Law – whether representations made are misleading or deceptive – whether representations among directors of a company are made in trade or commerce.

Bohemia Crystal Pty Ltd v Host Corporation Pty Ltd [2018] FCA 235
TRADE MARKS – cross-claim for revocation of trade marks pursuant to ss41 and 88 of the Trade Marks Act 1995 (Cth) – whether marks capable of distinguishing the relevant goods or services – trade marks not inherently adapted to distinguish – insufficient use to distinguish the designated goods from the goods of others – trade marks to be revoked.
TRADE MARKS – whether trade marks "BOHEMIA" and "BOHEMIA CRYSTAL" infringed pursuant to s120 of the Trade Marks Act 1995 (Cth) – whether marks used as a trade mark or to describe geographical origin and quality of goods – whether marks used in good faith pursuant to s122 – infringement found in some cases.
CONSUMER LAW – misleading or deceptive conduct in contravention of ss18 and/or 29 of the Australian Consumer Law – whether various impugned uses amounted to the making of misrepresentations – held no contravention of the Australian Consumer Law. Competition and Consumer Act 2010 (Cth) Schedule 2, ss18, 29; Trade Marks Act 1995 (Cth) ss7, 17, 24, 41, 87, 88, 120, 122, 126.

Makings Custodian Pty Ltd v Orchid Avenue Realty Pty Ltd; Orchid Avenue Realty Pty Ltd v Makings Custodian Pty Ltd & Ors [2018] QCA 033
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – DEFENCES – PROPORTIONATE LIABILITY – where the real estate agent argued that the vendor was a concurrent wrongdoer – where the trial judge held that real estate agents and vendors are not concurrent wrongdoers when they perform a single set of acts causing loss – whether the real estate agent and vendor were concurrent wrongdoers.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – WHAT LOSS OR DAMAGE RECOVERABLE – OTHER CASES – where the trial judge adopted as the measure of damages the difference between the contract price and the property value at the time of purchase – where an appellant argued the measure of damages should have been the difference between the contract price and the property value at the date of the trial – whether the appropriate measure of damages was the difference between the contract price and the property value at the date of the trial.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – WHAT LOSS OR DAMAGE RECOVERABLE – OTHER CASES – where the trial judge deducted from the measure of damages an amount obtained by the plaintiffs by way of settlement of a separate claim – where the trial judge regarded the settlement amount as having mitigated the plaintiffs' loss – where the appellants argued the settlement amount was unconnected with their loss – whether the settlement amount had mitigated the plaintiffs' loss.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – ASSESSMENT OR AVAILABILITY OF DAMAGES – WHAT LOSS OR DAMAGE RECOVERABLE – OTHER CASES – where the trial judge did not award transaction costs as a component of damages – whether transaction costs should have been awarded as a component of damages.

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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