In the media
Court orders Ford to pay $10 million penalty for
unconscionable conduct
The Federal Court has declared, by consent, that Ford
Motor Company of Australia Limited (Ford) engaged
in unconscionable conduct in the way it dealt with complaints about
PowerShift transmission (PST) cars, and ordered
Ford to pay $10 million in penalties. The Court held that
Ford's conduct in responding to consumer complaints about
Fiesta, Focus and EcoSport vehicles fitted with PST between 1 May
2015 and 29 February 2016 was unconscionable (26 April 2018).
More...
Airport profits continue to grow
Brisbane, Melbourne, Perth and Sydney airports all
significantly increased their profits from aeronautical activities
in 2016-17, with profits per passenger also rising, according to
the ACCC's annual Airport Monitoring Report. It is not
surprising that the airports are so profitable, given that they
face little competitive pressure and no price regulation,"
ACCC Chairman Rod Sims said (26 April 2018).
More...
(Report) More...
Google, Facebook defend role in media amid ACCC
probe
Digital behemoths Facebook and Google have defended their
role in the publishing landscape as "helping" traditional
media companies in a competitive online environment, as
Australia's wide-reaching probe into the impacts of the digital
giants continues (23 April 2018).
More...
ACCC boss backs massive fines for banks
ACCC Chairman, Rod Sims, is talking penalties again in
the context of investigating competition in the financial system,
arguing for penalties in hundreds of millions of dollars. The head
of the consumer watchdog believes penalties of hundreds of millions
of dollars for financial misconduct would prevent banks seeing the
fines as a cost of doing business (23 April 2018).
More...
High Court dismisses Valve's special leave to appeal
application
The High Court of Australia has dismissed a special leave
application by one of the world's largest online gaming
companies, US-based Valve Corporation (Valve),
which operates the Steam game distribution platform. Valve had
sought special leave to appeal from the decision of the Full
Federal Court in December 2017, which upheld the trial judge's
ruling that Valve had breached the Australian Consumer Law
(ACL) when selling to Australia users, and that it
pay a $3 million penalty (20 April 2018).
More...
Boosting penalties to protect Australian consumers from
corporate and financial misconduct
The Turnbull Government is strengthening criminal and
civil penalties for corporate misconduct and boosting the powers of
the ASIC to protect Australian consumers from corporate and
financial misconduct. The reforms to ASIC's powers and
penalties follow recommendations made by the ASIC Enforcement
Review Taskforce (The Taskforce) (20 April 2018).
More...
AMP admits it misled ASIC over financial advice
fee-for-no-service
AMP says it deceived the corporate regulator over fees
charged to thousands of customers who were not provided with the
financial advice they were being charged for (16 April 2018).
More...
ACCC welcomes new deputy chair and commissioner
reappointments
ACCC Chairman Rod Sims welcomes today's announcement
by the Treasurer Scott Morrison that current ACCC Commissioner Mick
Keogh has been appointed Deputy Chair from the end of May for a
period of five years. Mr Keogh will oversee the ACCC's small
business work in addition to his current role leading our
agriculture work (19 April 2018).
More...
In practice and courts, published reports
Gas inquiry 2017-2020: interim report - April 2018
Australian Competition and Consumer Commission: 27
April 2018
This report confirms that while conditions in the east coast
gas market have improved since September 2017, the market is still
not functioning effectively. More...
Airport monitoring report 2016-17
Australian Competition and Consumer Commission: 26
April 2018
This report presents the results of the ACCC's price,
financial reporting and quality of service monitoring for
aeronautical services and car parking for Brisbane, Melbourne
(Tullamarine), Perth and Sydney (Kingsford-Smith) airports for the
2016-17 financial year. More...
Inquiry into the competitive neutrality of the national
broadcasters: issues paper
Review panel of the Inquiry into the competitive
neutrality of the national broadcasters
Department of Communications and the Arts (Australia): 26
April 2018
This inquiry is operating in the context of rapidly changing
media markets. Boundaries between traditional media markets are
dissolving, new platforms exist for distributing news and
entertainment, and revenue streams are changing. Consumers are
adopting new forms of media rapidly, and the increased competition
between producers and distributors is evident from these
developments. More...
More... More...
Cases
Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA
526
CONSUMER LAW – misleading or deceptive conduct
– whether representations made "in trade or
commerce".
DEFAMATION – registered pharmacist – whether condition
imposed on the applicant's registration as a pharmacist by the
Pharmacy Board of Australia (Board) and published
by the Board and the Australian Health Practitioner Regulation
Agency (AHPRA) defamatory.
DEFAMATION – defences – whether the Board proceedings
under s178 of the Health Practitioner Regulation National Law
subject to absolute privilege – whether public document
defence under s28 of the Defamation Act 2005 (WA)
available.
TORTS – injurious falsehood – whether the Board or
AHPRA motivated by malice – whether the applicant suffered
actual loss.
Federal Court of Australia Act 1976 (Cth) s31A; The
Australian Consumer Law being Sch 2 to the Competition and
Consumer Act 2010 (Cth) ss18, 236; Defamation Act
2005 (WA) ss24, 26, 28, 28(1), 28(3), 28(4); Health
Practitioner Regulation National Law ss222, 225, 225(k),
228(1), 228(1)(a)(ii); Poisons Act 1964 (WA) Sch 8,
s23(2); Poisons Regulations 1965 (WA) regs 43A, 44(4).
Kraft Foods Group Brands LLC v Bega Cheese Limited [2018]
FCA 549
ARBITRATION – International arbitration –
application for anti-arbitration injunction restraining the taking
of any further steps in an arbitration commenced before the
International Centre for Dispute Resolution in New York.
ARBITRATION – whether substantial overlap of issues between
curial proceeding and international arbitration.
ARBITRATION – whether anti-arbitration injunction necessary
to protect the integrity of court's proceedings and
processes.
ARBITRATION – whether co-existence of curial and arbitral
proceedings vexatious or oppressive.
ARBITRATION – proper approach to construction of an
arbitration agreement – whether a dispute the subject of a
curial proceeding is the subject of an arbitration agreement
– meaning of "arises out of or relates to".
ARBITRATION – whether waiver or election not to pursue
arbitral relief.
ARBITRATION – whether "complete relief" available
when relief sought in international arbitration for violation of
ss32(1) and 43(a) of the Trademark Act of 1946 (US) (the
Lanham Act).
ARBITRATION – expert opinion evidence – whether Lanham
Act claim untenable.
Mr Batt submitted in oral argument: "[I]n this proceeding,
the relief sought is declarations that the [advertisements] are
misleading, injunctions restraining publication of the
[advertisements], corrective advertising and damages for misleading
conduct . Not damages for use of the trade dress or breach of
contract and no injunction is sought to restrain use of the trade
dress [claimed in the arbitration]". Held: matter to be
relisted for further argument.
Bisognin v Hera Project Pty Ltd [2018] VSCA
93
CONTRACT – Contract for sale of land –
Specific performance – Whether purchaser ready, willing and
able to perform its obligations – Best endeavours obligation
to expedite and procure the registration of subdivision –
Obligation to pay fees to referral authorities clarified as imposed
on purchaser, not vendors, by earlier decision of the Court of
Appeal – Failure by purchaser to pay fees to referral
authorities, or deduct amount from final settlement, before
decision of the Court of Appeal – Purchaser made relevant
payments after decision of Court of Appeal – No obligation in
circumstances to entertain alternative interpretation of
contractual obligations – Relevance to delay of vendors'
misleading conduct that they could obtain finance –Appeal
dismissed.
COSTS – Whether judge erred in not attaching a security for
costs condition on grant of specific performance – Whether
judge erred in awarding costs on an indemnity basis – Effect
of late production during trial of alternative contract
inconsistent with the vendors' obligations under contract of
sale – Effect of vendors' misleading conduct –
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193
CLR 72 applied.
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.