Australia: Competition & Consumer Law News - 3 April 2018

Last Updated: 11 April 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

New Farm real estate agent fined for misleading behaviour
A New Farm real estate agent and agency have been fined a total of $12,960 by the Office of Fair Trading (OFT) for making false and misleading representations (29 March 2018). More...

Pre-Games crackdown on fake indigenous art
An Office of Fair Trading (OFT) compliance operation into Indigenous art and souvenirs has identified 12 Queensland retailers for further investigation, but found most shops and galleries are doing the right thing by artists and consumers (27 March 2018). More...

Companies face tougher penalties for rip offs and rorts
Big companies could face drastically increased penalties for breaches of competition law or ripping off consumers after the government watchdog revealed concern that its fines were out of step with other developed countries and failing to provide an effective deterrent (26 March 2018). More...

OECD finds Australian competition law penalties are significantly lower
The ACCC will re-think its approach to penalties for breaches of the competition law after an OECD report found that average Australian penalties are significantly lower than those imposed in other comparable OECD jurisdictions. The OECD report, Pecuniary Penalties for Competition Law Infringements in Australia, which compared the penalties for companies which breach competition laws in Australia with the EU, the UK, Germany, Japan, Korea and the USA (26 March 2018). More...

Thousands of Telstra customers charged for content they didn't want
The telco is facing $10 million in penalties after admitting to misleading up to 100,000 customers, who were charged for content including ringtones and games, without having to enter payment details or verify their identity (26 March 2018). More... (ACCC statement) More...

Northern Beaches real estate agents fined after Fair Trading inspections
Real estate agents on Sydney's Northern Beaches have been fined more than $25,000 after a Fair Trading compliance blitz, Minister for Better Regulation Matt Kean said. Fair Trading officers had inspected 17 real estate agents, of which 12 were issued fines for non-compliance with real estate laws, including seven notices for breaching underquoting provisions (26 March 2018). More...

Queenslanders encouraged to purchase tickets from official sellers
The Queensland Office of Fair Trading (OFT) and consumer protection agencies across the country have launched a national campaign to highlight issues around buying second hand tickets to concerts, sporting events, festivals and other events (26 March 2018). More...

Consumers should be compensated for their excessive 'gold-plated' power bills: report
The Grattan Institute says over-investment in the poles and wires of the power grid has left consumers paying "too much for something they neither want nor need" (25 March 2018). More...

Franchising, misleading behaviour continues to be an ACCC focus
Nearly 5,000 small businesses reported various issues to the ACCC last year, with the most common areas of concern being alleged misleading conduct, consumer guarantees issues and wrongly accepting payments. The ACCC took seven enforcement actions, including five for alleged breaches of the Franchising Code (23 March 2018) More...

Dodo, iPrimus and Commander to compensate over 5,000 customers
"Dodo, iPrimus and Commander have admitted that by offering speed plans that could not be delivered, they likely breached consumer law by engaging in misleading or deceptive conduct and making false or misleading representations, and will be contacting affected customers by email or letter by 27 April 2018, outlining the options that customers have (23 March 2018). More...

Consultation open on consumer guarantee reforms
The Turnbull Government calls on businesses and consumers to have their say on proposed reforms that have come out of the Australian Consumer Law Review, including proposals to clarify, simplify and modernise the consumer guarantee framework in the Australian Consumer Law (ACL) (21 March 2018). More...

iiNet and Internode to compensate customers for misleading NBN speed claims
The ACCC Commissioner said iiNet and Internode have admitted that between 2015 and mid-2017, they both likely engaged in misleading or deceptive conduct or made false or misleading representations by promoting and offering NBN plans with maximum speeds that could not be delivered (20 March 2018). More...

ABG Pages admits misleading and unconscionable conduct
The Federal Court has ordered that online business directory service ABG Pages Pty Ltd pay a $300,000 penalty for breaching the Australian Consumer Law. ABG admitted to engaging in systemic unconscionable conduct, undue harassment, and making false and misleading representations in relation to its online advertising services (20 March 2018). More...

Court finds Heinz made a misleading health claim
The Federal Court has found that food manufacturer H.J. Heinz Company Australia Ltd (Heinz) made a misleading health claim that its Little Kids Shredz products were beneficial for young children. The Court found that Heinz had represented that its Shredz products were beneficial to the health of children aged 1-3 years, when this was not the case (19 March 2018). More...

In practice and courts, published reports

Clarification, simplification and modernisation of the consumer guarantee framework
In March 2017, CAANZ presented the Final Report of the ACL Review (the Review). This Consultation RIS is comprised of four chapters, each of which addresses the proposals which are the subject of this Consultation RIS. More...

Request for information - reforms to consumer lending: background paper 5
Department of the Treasury (Australia); Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry: 19 March 2018 - Reforms are being introduced to improve the efficiency and level of competition in consumer lending, with a goal of driving better pricing, enhanced access to finance and new products and services. 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. 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...


Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited [2018] FCA 360
CONSUMER LAW – H.J. Heinz Company Australia Ltd (Heinz) manufactures and supplies food products – Heinz supplied three "Shredz" products as appropriate for 1-3 year old children – whether the packaging of the products conveyed representations that they were of an equivalent nutritional value to the natural fruit and vegetables depicted on their packaging (the Nutritional Value Representations) – whether the packaging of the products conveyed representations that they were a nutritious food and beneficial to the health of children aged 13 years (the Healthy Food Representation) and, if so, whether the representations were misleading or deceptive, or likely to mislead or deceive – whether the packaging conveyed representations that the products would encourage the development of healthy eating habits for children aged 13 years (the Healthy Habits Representation) – whether Heinz knew or ought to have known that the representations were made and that they were misleading or deceptive.

Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2018] FCA 378
CONSUMER LAW – application pursuant to s234 of the Australian Consumer Law for an interim injunction enjoining the respondent from publishing or broadcasting a television commercial and conducting an in-store promotion both featuring comparative advertising – where the issue of whether a prima facie case exists is determinative and where application will likely resolve the substantive proceeding – no sufficient prima facie case established – application dismissed with costs. Competition and Consumer Act 2010 (Cth), Sch 2; Australia Consumer Law, ss 18, 33, 232, 234, 236.

Downer EDI Rail Pty Ltd v John Holland Pty Ltd; John Holland Pty Ltd v QBE Insurance (Australia) Ltd (No 5); Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd (No 4) [2018] NSWSC 326
CONTRACTS — Remedies – Damages – Proof of loss or damage – contract to design and construct water detention system – where design used plastic cells placed in underground tanks – whether there has been "loss" – whether detention system has failed – whether detention system will last its design life – whether detention system requires remediation or replacement.
CONSUMER LAW — Misleading and deceptive conduct – whether representations were in fact made – whether any reliance – indirect causation.
INSURANCE — Liability insurance – construction of insuring clause – "in respect of" property damage – whether policy would have responded.
Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Transport Administration Amendment Act 2010 (NSW); Trade Practices Act 1974 (Cth).

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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