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...
Cases
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.