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.