Australia: Competition & Consumer Law News – 15 May 2018

Last Updated: 21 May 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

Consumers' new rights up ACCC's alley
The Australian Competition and Consumer Commission (ACCC) has welcomed its new task of setting up a 'Consumer Data Right' for Australia, empowering consumers to access and share the data held by suppliers relating to them with potential supply competitors or other interested services (10 May 2018). More...

ACCC welcomes consumer data right
Following the Treasurer's response to the Open Banking Review, the ACCC welcomes the introduction of a general data right for all consumers and $20 million in the Federal Budget over the next four years to oversee its implementation. The consumer data right will enable customers to share their transaction, usage and product data with service competitors and comparison services, if they choose to do so (09 May 2018). More...

ACCC new consumer data right
The ACCC has welcomed the 'introduction of a general data right for all consumers and $20 million in the Federal Budget over the next four years to oversee its implementation', which Chairman Rod Sims labeled 'fundamental competition and consumer reform'. The ACCC is establishing a dedicated 'Access to Data Unit' to undertake these new functions and will work closely with the OAIC, Data Standards Body and industry in relation to implementation of the consumer data right (09 May 2018). See ACCC media release (9 May) and Australian Government, 'Consumer Data Right' (Treasury, 9 May 2018).

Bega has small win in Kraft peanut butter battle
Australian brand Bega has had a small win over American food giant Kraft as they fight over who has the right to use yellow designs on peanut butter jars. The brands look set to go to trial in the Federal Court following the Australian court dashing Kraft's attempts to get US-based courts to stop Bega. Kraft's Federal Court case alleges Bega breached consumer law by engaging in misleading or deceptive conduct over its peanut butter marketing (05 May 2018). More...

Poor progress on cattle and beef industry market reform
The cattle and beef industry has not acted on most of the recommendations made by the ACCC in 2017 to improve the transparency and efficiency of Australian cattle markets, according to a review released by the ACCC. The recommended reforms included expanded reporting of prices for non-auction sales, greater transparency of processors price offers, simplification of pricing grids, and measures to increase transparency in saleyard auctions (04 May 2018). More...

HP to compensate printer customers
Customers of HP PPS Australia Pty Ltd (HP) who bought certain models of HP printers without being informed non-HP ink cartridges may not work in them could be eligible for compensation, the ACCC announced. HP has admitted that by not disclosing to consumers that these printers, or the firmware update, included technology preventing the use of certain non-HP ink cartridges, it was likely to have breached the Australian Consumer Law by engaging in false, misleading or deceptive conduct (03 May 2018). More...

'You have obligations': ASIC cracks down on initial coin offerings
Australia's corporate watchdog has started cracking down on "misleading or deceptive conduct" in the marketing and selling of digital tokens via initial coin offerings (01 May 2018). More...

Telstra to pay $10 Million penalty for misleading conduct related to premium direct billing service
On 26 April 2018, the Federal Court ordered Telstra Corporation Ltd (Telstra) to pay penalties for making misleading representations to customers in the case of ACCC v Telstra Corporation Ltd [2018] FCA 571 (30 April 2018). More...

ACCC Releases Final Report in Dairy Industry Inquiry
The Australian Competition & Consumer Commission (ACCC) released the final report into the inquiry into the competitiveness of prices, trading practices and the supply chain in Australia's dairy industry (30 April 2018). More...

More transparency on gas pricing
The ACCC's Gas Inquiry 2017–20 Interim Report – April 2018 released confirms that while conditions in the east coast gas market have improved since September 2017, the market is still not functioning effectively. ACCC Chairman Rod Sims said. "We believe that publishing LNG netback prices is an important step towards improving gas price transparency to improve the competitive bargaining process." (27 April 2018). More...

Credit repair business Malouf Group Enterprises and its director pay $1.7 million for misleading and unconscionable conduct
The Federal Court has found that credit repair business Malouf Group Enterprises Pty Ltd (Malouf Group) and its director Jordan Francis Malouf breached the Australian Consumer Law during the period 1 January 2014 to 31 December 2015 by making false and misleading representations and by engaging in unconscionable conduct (26 April 2018). More...

In practice and courts, published reports

Australian Cartel Law: Biopsies: Competition Law Conference Sydney, 5 May 2018
Brent Fisse: Australian Cartel Law after the Harper Review and the 2017 Amendments
The author has now published his (slightly updated) paper from the conference. The paper includes discussion of the concepts of 'arrangement an understanding', the ongoing issue of 'purpose' in s 45AD, cartel exemptions and some aspects of liability and sanctions (all discussed in this paper). More...

ACCC publishes Digital Inquiry submissions
The ACCC has now published public versions of submissions made in response to the Issues Paper released as part of the Digital Platforms Inquiry - 57 in total on 03 May 2018. More...


Australian Competition and Consumer Commission v Telstra Corporation Limited [2018] FCA 571
CONSUMER LAW – financial services – false or misleading representations – where the respondent (Telstra) provided a service called the Premium Direct Billing Service (PDB service) to domestic and business customers as a default setting on Telstra mobile services (ie, customers were not required to opt-in) – where the PDB service enabled customers to purchase subscriptions to digital content supplied by third parties and have the charges billed to their Telstra account – where the operation of the PDB service led to a significant number of customers unintentionally purchasing and being billed for PDB content subscriptions without their knowledge or consent – where parties prepared an agreed statement of facts and jointly proposed declarations and orders that Telstra pay pecuniary penalties totalling $10 million – whether the PDB service was a "financial product" – whether, in providing the PDB service, Telstra was providing a "financial service" – whether proposed orders appropriate – proposed orders made.
Australian Securities and Investments Commission Act 2001 (Cth), ss.12BAA, 12BAB, 12DB, 12GBA; Competition and Consumer Act 2010 (Cth), ss.76, 87B, 131A; Crimes Act 1914 (Cth), s.4AA; Australian Securities and Investments Commission Regulations 2001 (Cth), reg 2B.

The Real Thing Food Supplements CC v Media Tag Pty Ltd [2018] NSWSC 585
Proceedings dismissed with costs. CONSUMER LAW — misleading or deceptive conduct — where plaintiff is a South African corporation — where defendant distributed plaintiff's products in Australia to Woolworths on a trial basis — where plaintiff and defendant then unable to agree on price for which defendant would purchase plaintiff's goods with a view to on sale in Australia to Woolworths — where defendant then manufactured similar products in Australia and sold to Woolworths — whether defendant thereby misleadingly or deceptively represented to Woolworths that its goods were those of the plaintiff — whether plaintiff had goodwill and reputation in Australia — whether Woolworths relied on any representation by defendant when purchasing goods from it.
TORTS — passing off — whether defendant passed off its goods to Woolworths as those of the plaintiff — whether plaintiff had reputation in Australia — whether defendant represented to Woolworths that its goods were those of the plaintiff - Australian Consumer Law.

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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