Australia: Competition & Consumer Law News – 29 May 2018

Last Updated: 1 June 2018
Article by Howard Rapke, Ian Robertson and Paul Venus

Most Read Contributor in Australia, September 2018

In the media

ACCC unsuccessful in appeal against Pfizer
After almost two and a half years, the Full Court of the Federal Court has dismissed the ACCC's appeal against the trial judgment in relation to Pfizer. The ACCC had alleged misuse of market power and exclusive dealing. The ACCC is 'carefully considering the judgment'. (25 May 2018). More...

ACCC loses appeal in Pfizer misuse of market power case
In a major loss for the ACCC, the Full Federal Court on Friday tossed the competition regulator's challenge to a ruling that drug giant Pfizer did not misuse its market power in the months leading up to the expiration of the patent for its blockbuster cholesterol drug Lipitor (25 May 2018). More...

Telstra found to have misled with 'unlimited' ads
A Federal Court judge has found that Telstra ads that use the term "unlimited" "falsely convey the representation that Telstra offers a mobile product or service that is unlimited". The judge ordered Telstra to pay the court costs incurred so far by Optus, which brought the action (23 May 2018). More...

Optus to pay $1.5 million for misleading customers during NBN transition
The Federal Court has ordered Optus Internet Pty Ltd to pay penalties of $1.5 million for making misleading representations to customers about their transition from Optus' HFC network to the National Broadband Network (NBN). Optus benefited by around $750,000 as a result of the conduct (23 May 2018). More...

ACCC calls for million-dollar penalties for dodgy franchisors
The Australian Competition and Consumer Commission has used its submission to the Senate's inquiry on the effectiveness of the franchising code to argue for powers to seek million-dollar penalties for poorly behaved franchisors (21 May 2018). More...

ACCC issues statement of issues in relation to proposed Transurban / WestConnex deal
The ACCC issued a statement of issues setting our preliminary concerns about Sydney Transport Partners' (consortium led by Transurban) proposed acquisition of a majority interest in the WestConnex project (17 May 2018). More...

ACCC fears Transurban will gain too much advantage from WestConnex buy
The competition tsar says Transurban holds a near-monopoly over toll roads in Sydney, leaving it to weigh up whether motorists would be better off if a competitor gained a majority stake in the $16.8 billion WestConnex toll road project (17 May 2018). More...

Inner West real estate agents fail Fair Trading inspection
Real estate agents in Sydney's Inner West have been fined more than $66,000 after a recent Fair Trading crackdown, Minister for Better Regulation Matt Kean said. Mr Kean said inspectors visited 37 real estate agents in the area, and found 27 to be non-compliant, with 19 fined for underquoting offences (17 May 2018). More...

Record $46 million in penalties for Yazaki cartel
The Full Federal Court has ordered Japanese company Yazaki Corporation to pay increased penalties of $46 million for cartel conduct, following an appeal by the ACCC. This is the highest penalty ever handed down under the Competition and Consumer Act 2010 (16 May 2018). More...

'Huge step': Australian companies on notice after massive fine
Australian companies are on notice that penalties for cartel breaches will be significantly higher than in the past, the competition watchdog has warned, in the wake of a landmark $46 million fine against a Japanese car parts giant. The Full Federal Court dramatically upgraded the fine for Japanese company Yazaki Corporation from $9.5 million to a record $46 million following an appeal from the ACCC (16 May 2018). More...

Large price differences between petrol retailers
New data out reveals that prices for petrol vary significantly by retailer, with Coles Express the most expensive on average across the five main capital cities, and Woolworths and independents generally the cheapest (13 May 2018). More...

In practice and courts, published reports

ACCC to undertake a survey on internet activity in Australia
The ACCC is intending to undertake a periodic survey of internet activity through a Record Keeping Rule (RKR), under Section 151BU of the Competition and Consumer Act 2010 (23 May 2018). More...

Casenote: Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73
Part of the explanation for the increased penalty was that the Full Court found that the maximum penalty for each contravention was $18m, not $10m, based on 'the proper construction of s 76(5)' of the Act (defining annual turnover for purposes of the calculation of penalty) and because the Full Court held that the penalties should not be limited to two 'courses of conduct' but instead should be imposed on five separate contraventions. More...

Casenote: Multiplex Constructions Pty Ltd [2018] VSC 246
Summary of Justice Riordan's judgment delivered on 17 May 2018.
Justice Peter Riordan in the Victorian Supreme Court has found the practice of formulating private contracts that limit the period in which parties can claim for misleading or deceptive conduct is contrary to the public policy of the Australian Consumer Law.
The Court appointed a special referee to report on the subcontractor's claims. Justice Riordan found the special referee's opinion should be adopted, but His Honour determined that the special referee made an error in finding that the plastering company was barred by the terms of its contract from bringing a claim under the Australian Consumer Law. More...

Petrol prices are not the same: report on petrol prices by major retailer in 2017
Australian Competition and Consumer Commission: 13 May 2018
The ACCC analysed monthly and annual average retail petrol prices in 2017, to identify the highest and lowest priced major retailers of petrol (on average) in each of Australia's five largest cities. More...

Cases

Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited [2018] FCA 703
CONSUMER LAW – Proceeding by Commission under s.21 of Schedule 2 to Competition and Consumer Act 2010 (Cth) – whether respondent (Ford Australia) engaged in unconscionable conduct – matters relevant to unconscionability – where respondent was a trading corporation supplying motor vehicles – where such vehicles did not meet the consumer guarantees in respect of quality contained within Division 1 of Part 3-2 of the Australian Consumer Law – where respondent gave effect to processes for dealing with and responding to complaints from customers which were inadequate – where parties prepared an agreed statement of facts and jointly proposed declarations – discussion of guiding principles relevant to the imposition of a penalty pursuant to s.224 of the Australian Consumer Law – agreement the respondent pay pecuniary penalties totalling $10 million – whether proposed orders appropriate – proposed orders made. Competition and Consumer Act 2010 (Cth).

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73
COMPETITION – Contraventions of the Competition and Consumer Act 2010 (Cth) and the Competition Code as applied as a law of Victoria by the Competition Policy Reform (Victoria) Act 1995 (Vic) – consideration of s.45(2)(b) – whether the second respondent gave effect to the overarching and other cartel agreements, arrangements or understandings made by the first respondent by submitting prices – whether a third party must have knowledge in order to give effect to relevant cartel conduct – the meaning of "give effect to".
COMPETITION – Consideration of exclusionary provisions and contravention of ss.45(2)(a)(i) and 45(2)(b)(i) of the Competition and Consumer Act 2010 (Cth) – consideration of ss.45(3), 4D and 4E – whether contravention must be between competitors who were in competition in a relevant market in Australia – market definition – whether there was a relevant market in Australia.
STATUTORY INTERPRETATION – Construction of a statutory definition – competition – market – exclusionary provision – common law presumptions regarding the interpretation of penal legislation and regarding the extraterritorial operation of legislation – reliance on extrinsic materials – whether s.45(3) was applicable to ss.45(2)(a)(i) and 45(2)(b)(i) of the Competition and Consumer Act 2010 (Cth).
COMPETITION – Construction of s.76(5) of the Competition and Consumer Act 2010 (Cth) – appropriate penalty or penalties in respect of contraventions of s.45(2) – determination of maximum penalty – where parties have not sought to prove the value of the benefit reasonably attributable to the contraventions – construction of the words "the body corporate" – construction of the word "enterprise" – whether supplies made by a subsidiary are made in connection with a business carried on by the contravener for the purposes of determining "annual turnover".
COMPETITION – Consideration of how many contraventions are subject to the maximum penalty – whether contraventions are to be considered as one act within s.76(1A)(b) of the Competition and Consumer Act 2010 (Cth) – whether the contraventions are to be considered part of the same conduct within s.76(3) of the Competition and Consumer Act 2010 (Cth) – consideration of course of conduct and totality principles – whether all of the contravening acts were directed toward the purpose of a single underlying wrong and therefore should be treated as a single course of conduct.
COMPETITION – refixing of penalty – where first respondent is a large multinational supplier with considerable market share – where aggregate maximum penalty and characterisation of conduct is different from that determined by the primary judge – where prohibited arrangement longstanding, significant and involved senior management.
COSTS – Where primary judge reduced costs order in favour of the appellant due to failure to establish a particular factual issue at first instance – whether appellant should be awarded 100% of its costs at first instance.

Optus Mobile Pty Ltd v Telstra Corporation Limited [2018] FCA 745
CONSUMER LAW – Whether respondent's advertisements breached Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) – misleading or deceptive conduct – false or misleading representations – conduct liable to mislead as to nature or characteristics of services – whether advertisements conveyed nothing, merely provoking "wonderment", or whether ordinary and reasonable consumers would understand word "Unlimited" as connected to words "Australia's best mobile network" and the respondent's logo and therefore referable to usage and/or geographic coverage of respondent's mobile network – whether representations so conveyed false where respondent offers "unlimited" plan relevantly subject to device restrictions and speed throttling once data usage allowance exceeded – contraventions found.
Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss.18, 29, 34.

Telstra Corporation Ltd v Singtel Optus Pty Ltd [2018] VSC 247
CONSUMER LAW – Misleading or deceptive conduct – false or misleading representations – relevant legal principles – billboard and internet advertisements – alleged representations as to quality of parties' respective mobile networks – whether representations conveyed – whether representations likely to mislead or deceive, or false or misleading to hypothetical ordinary or reasonable person within that class – Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law ss.18, 29(1)(b), (g).
INJUNCTION – Interlocutory – principles to be applied – serious question to be tried – irreparable damage – balance of convenience.

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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