Australia: Competition & Consumer Law News - 1 May 2018

Last Updated: 5 May 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

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...


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.

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Ian Robertson
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